1. The appeal preferred by the plaintiff was dismissed for reasons which need not toe stated, and we are now concerned only with the defendants' cross-objection.
2. The necessary facts are as follows: there were two brothers, Prasanna Nath Roy and Bhabani Nath Roy. Theformer died in 1871, leaving a widow named Shyamrangini, who is still alive. She succeeded to a Hindu widow's estate in respect of the property left by her husband.
3. On April. 26, 1915, she executed a deed of gift in favour of the defendant Taranath Roy by which she transferred to him one of the items of property described In Schedule 'Ga' to the plaint. In July 1917 she executed a second document, in favour of her husband's brother, Bhabani, by which she relinquished all her rights to him as reversioner. On his side he paid her a considerable sum in cash and undertook to make a monthly payment for the rest of her natural life. On the strength of this document Bhabani as plaintiff wants to eject Taranath from the property comprised in the deed of gift.
4. Taranath defended the suit on several grounds; he impugned, the deed of relinquishment; in any case, he said, it did not specify the property described in the deed of gift: he alleged that the property given to him was bought by the widow from her stridhan, and that her conduct showed an intention to treat it as stridhan.
5. The learned Judge found that Shyamrangini executed the deed of relinquishment voluntarily and with fall understanding of its effect, and that she intended it to operate in regard to all the property including that given to Taranath Roy. With regard to that gift he held that it was not bond fide, and he also held that, as it was not an alienation for valuable consideration, while the plaintiff has paid a substantial sum and is going to pay a monthly allowance, it was equitable that the property should go to the plaintiff and not to the defendant. He rejected the evidence about the stridhan character of the. property as meagre and unsatisfactory.
6. On these findings he gave the plaintiff a decree for the property covered by the deed of gift.
7. For the defendant Taranath it is urged that the learned Judge's decision is wrong.
8. The first question is as to the reality of the gift. The learned Judge, relying mainly on a letter written by the defendant, held that the gift was not a bond fide gift. That is a finding with which I cannot agree. The lady says that she made the gift, and the donee is in possession. The letter to which reference is made is very inconclusive, and cannot outweigh the donor's positive statement. In my opinion, the deed of gift to the defendant was intended to be effective.
9. In regard to the deed of relinquishment the learned Judge has shown abundant reason for believing that the lady understood what she was doing and intended it to be operative. It is true that it does not mention specifically the property covered by the deed of gift, but its terms are so comprehensive as to include it. The suggestion that the latter property was stridhan is not supported by any evidence worthy of acceptance.
10. There remains, therefore, the question whether the reversioner on the strength of the deed of relinquishment can obtain possession of the property given to the defendant immediately, or whether he can do so only on the natural death of the widow.
11. I think it is clear on the authorities that the widow could make a deed of gift valid for her own life. Mr. Mayne says:
She cannot in the absence of legal necessity bind the inheritance for her own personal debts or private purposes as against reversioners, but she can do so for her own life. Any alienations in excess of her powers are not void but voidable.
12. The deed of gift in favour of Taranath used words of inheritance, but that makes no difference; for the term of the widow's life it is a valid alienation, but the reversioner will be able to attack it as voidable as soon as she dies. For the plaintiff, however, it is urged that he need not wait until the widow dies, but that the deed of relinquishment entitles him to immediate possession. In other words it is argued, that by the doctrine of acceleration of the reversion, the reversioner at once succeeds to the whole estate as completely as he would on the natural death of the widow. There are, of course, several authoritative pronouncements to the effect that a widow can operate her own death, but, so far as I have been able to find out, none of the decisions go to the length of saying that she can do so where prior dispositions have created interests in third persons. The effect of adoption has been considered on several occasions in Madras and Bombay, butdo not think it is of any use to refer to the decisions, partly because the two Courts have taken different views, partly because the results of adoption on the widow's interest are very definite. A decision of more reliance is to be found in the case of Subbamma v. Subramanyam (1915) I. L. R. 39 Mad. 1035. In that case the widow had created a mortgage before she executed a deed of relinquishment in favour of the reversioner. The learned Judges upheld the trial Court's view that the relinquishment could not defeat the mortgagee's right to get a decree for sale of the Widow's life-interest. It is true that in-that case the alienation was for value, whereas in the present case the alienation was by gift, but I do not think that the presence of valuable consideration affects the question. The point is that the widow has made an alienation which she was competent to make, and she cannot recall it by a voluntary act, which only by fiction has the same effect as her actual death would have.
13. There are two other points to be noticed in this case. The first is that the learned Judge has held that the sale and the leases of parts of the property must stand good for the term of the widow's life, and that part of his judgment has become final. The second is that the widow has covenanted for a monthly payment in addition to a cash payment Those two facts make it difficult to regard the relinquishment as of the whole estate, and as effecting the widow's death from the legal point of view.
14. I regret to differ from my learned brother, but in my opinion, the defendant's cross-objection should be allowed, and the suit dismissed as premature so far as it relates to the land covered by the deed of gift.
15. This cross appeal raises an interesting and important question in connection with a Hindu widow's power of alienation while possessing a widow's estate in property inherited from her deceased husband.
16. About the year 1880 one Prasanna Nath Roy died intestate leaving as his heiress Shyamrangini, his widow, and as his heir presumptive his brother, the respondent Bhabani Nath Roy. At the time of Prasanna Nath Roy's death, Shyamrangini was eight or nine years old, and for about 10 years thereafter she lived under the guardianship of Bhabani. After reaching her majority Shyamrangini obtained possession of her husband's property, and on the 28th April 1915 she executed an absolute deed of gift by which she transferred to her cousin, Taranath Roy, her right and interest in certain lands and premises the particulars of which were set out in the schedule to the deed. This deed of gift was duly executed and registered by Shyamrangini. On the 24th July 1917 Shyamrangini executed a deed of conveyance by which she surrendered and relinquished in favour of Bhabani, the next heir of Prasanna Nath Roy, the entirety of the widow's estate which she had inherited. In the deed of relinquishment it was inter alia provided.
You are the brother of my husband and the only presumptive heir of the, properties left by him on my death. My husband had peculiar affection for you and I too have genuine love for you. Under these circumstances, having made up my mind to attend to the performance of religious duties, and giving up in your favour my entire life interest I received by inheritance from my husband, by this deed of release of I life-interest I agree and declare that I completely relinquish the entire Hindu widow's life-interest that I had in all the properties described in. the under mentioned schedule which I received by inheritance from my husband or acquired with the usufruct of properties so inherited which know as the entire estate inherited from my husband and over and above: that in any other property unknown to me which might have belonged to my husband. I further relinquish in your favour all arrear dues receivable from my tenants in those properties. From to-day I cease to have any interest or connection with those properties or the arrears realizable therefrom. On the strength of this deed of release you will from this day own and possess an absolute right of my husband's share in the properties described in the undermentioned schedule, and will continue to hold and enjoy the same with great pleasure down to your son, son's son, etc., heirs and representatives in succession, with right to make alienation of every description such as gift, sale etc., and to grant subordinate settlements.
17. It is to be observed that in the schedule to this deed of relinquishment no mention is made of the jote and occupancy rights in the land and premises which wore the subject-matter of the deed of gift of the 26th April 1915. On the 25th July 1917 Bhabani executed a deed of mushihara under which he agreed to pay an allowance of Rs. 150 a month to Shyam-rangini, and declared that he had paid Rs. 3,000 to her. After the execution of these two deeds Bhabani was given possession of the properties then in the possession of Shyamrangini, and since July 1917 Shyamrangini has been receiving the monthly sum of Rs. 150; indeed, she has accepted an instalment of the allowance even after the present suit was filed. On the 21st June 1920 Bhabani launched the suit out of which this appeal arises against Taranath Roy and his daughter in which he claimed inter alia.
(1) That on declaration of plaintiff's right of inheritance to the ' properties of schedules Kha and Ga together with the house, etc 41 standing thereon as described in the schedule, and on declaration that no right has accrued to the defendant in respect thereof a decree for khas possession may be made in favour of the plaintiff and eviction of the defendants therefrom;
(2) That a decree may be passed in plaintiff's favour for recovery of Rs. 925 in the shape of waailat from the defendant, or should any larger amount be found due in course of trial a decree for that amount on payment of the deficit Court fees.
18. The properties described in schedule Ga to the plaint were the properties which were the subject-matter of the deed of gift of the 26th April 1915. On the 22nd December 1921 a decree was passed m the said suit by which the Court inter alia ordered that
the plaintiff's title be declared to the land and houses, etc., described in schedule Ga and the plaintiff do get possession thereof, and the plaintiff do get Rs. 50 in respect of mesne profits of the land in schedule 'Ga'.
19. Bhabani and Taranath have died in the course of these proceedings. Against this decree the representatives of Bhabani appealed, and the representatives of Taranath filed a cross-appeal against so much of the said decree as related to-the properties in schedule Ga which had been transferred to Taranath under the deed of gift. The appeal has not been prosecuted, and the cross-appeal alone has been contested before us.
20. The validity of the deed of gift and of the deed of relinquishment were challenged at the trial of the suit, and the learned trial Judge held that, inasmuch as Taranath had written a post card to the manager of Shyamrangini's properties after the execution of the deed of gift asking for instructions about the management of the estate, the deed of gift was not a bond fide gift. I am unable to regard this post card as evidence from which such a conclusion might reasonably have been drawn, and, indeed, the argument on appeal proceeded upon the footing that the deed of gift was a genuine and duly executed document. On the other hand it was contended that the property covered by the deed of gift had been purchased out of the stridhan of Shyamrangini. The learned Judge found that that was not the fact, and upon the evidence, in my opinion, his decision was correct.
21. As regards the deed of relinquishment it was urged that Shyamrangini did not understand the nature or effect of the document which she was signing, and that the Court ought not to allow this document to stand. It was further contended that the deed of relinquishment did not amount to a bond fide surrender of the entirety of Shyamrangini's interest in her late husband's property, but was merely a device by which she attempted to divide the inheritance with Bhabani Nath. Rangasami Gounden v. Nachiappa Gounden (1918) I. L.R. 42 Mad. 523. The learned Judge decided against both of these contentions, and, in my opinion, the conclusion at which he arrived was right. Shyamrangini was an educated and intelligent woman; she had experienced considerable trouble over the property; she was getting old, and was anxious to pass the rest of her days in meditation free from worldly cares. The joint income which Bhabani and Shyamrangini's husband had received from the ancestral estate was about Rs. 4,000, although at the date of the trial the estate had increased in value. It can well be imagined that Shyamrangini would be only too glad to receive Rs. 8,000 for the expenses of a pilgrimage, and a monthly income of Rs. 150, and to be relieved from further anxiety in respect of the family property. Not only did she act upon the above arrangement with Bhabani in respect of the monthly allowance, but in a letter to Bhabani's son Shamapado she wrote that
Bhabani has amply repaid me for the trust I reposed in him in giving up the property.
22. Further, with respect to the contention that Shyamrangini did not understand the nature and effect of what she was doing when she executed the deed of relinquishment, it is to be remembered that she was an educated woman; that the draft of the deed was considered by several pleaders; that before she executed the deed it was read over and explaineqV to her; that she herself had taken the draft to a pleader, Radha Ballav, who was her relative, in order to obtain his advice thereon; that she herself had affixed the seal to the deed and had handed it to Bhabani; that subsequently she acted upon the deed, and has never taken any steps to hare it set aside or declared to be invalid. In my opinion, . there is no substance in the contention that the deed of relinquishment was not duly and validly executed, or that the deed of relinquishment was a mere device by which the inheritance was divided between Shyamrangini and Bhabani. I should add that I am not satisfied upon the evidence that Shyamrangini was possessed of any movable properties which she had inherited from her husband,' and for the purposes of this appeal it must be taken that no such movables were in existence, at any rate at the time when the deed of relinquishment was executed.
23. In these circumstances an important question falls for determination, namely, whether Bhabani, the heir presumptive of Shyamrangini's husband, is entitled to have the deed of gift to Taranath set aside during the life-time of Shyamrangini.
24. Now, the nature of a Hindu widow's estate is not always understood. It is an anomalous estate which obstructs the normal course of succession as laid down joy Hindu sages. For that reason., therefore, it is o regarded among the_ Hindu community as a praiseworthy act that a widow should contrive to put an end to the unnatural situation created by the existence of the widow's estate of inheritance. In the case of Moniram Kolita v. Keri Kolilani (1880) 1. L. R. 5 Calc. 776; L. R. 7 I. A. 115, 119, Mr. Justice Dwarkanath Mitter observed:
We think it scarcely necessary to remark that the estate of a widow under the Hindu Jaw is one of a very peculiar character. To compare it with a life estate, or with any other estate known to the English law, would be to misunderstand its nature completely; and if authority is needed to support this proposition, we have only to refer to the remarks made by the Privy Council in the case of The Collector of Masulipatam v. Cavaly Vencata Narainapah (1860) 2 W. R. (P. C.) 59; 8 Moo. I. A. 500. It is true that the widow is allowed to succeed to the estate of her deceased husband as heiress-at-law; and it is also true that she is allowed to represent that estate fully, so long as her right to hold it continues to exist. But her dominion over it is rigorously confined with certain defined limits, beyond which she has no power to go; nor is it allowed to deceased to her heirs after her death. As 'half the body' of her deceased husband she takes his property in default of male issue, but being not more than half her power to deal with it is anything but that of an owner in the true sense of the term.
25. The Judicial Committee did not affect to impugn the accuracy of the above exposition of the general position of Hindu widows according to Hindi? law and usage, although Sir Barnes Peacock in delivering the judgment of the Privy Council in that case differed from Mitter J. in thinking that a Hindu widow held the property which she had inherited from her husband as a trustee. The correct view, as Lord Dunedin observed in Rangasami's case (1918) I. L. R. 42 Mad. 523, 531, is that.
The rights of a Hindu widow in her late husband's estate are not aptly represented by any of the terms of English law applicable to what might seem analogous circumstances. Phrased in English law terms her estate is neither a fee, nor an estate for life, nor an estate tail. Accordingly, one must not, in judging the question, become entangled in Western notions of what a holder of one or other of these estates. might do.
26. The sage Vrihaspati laid down that
In scripture and in the code of law, as well as in popular practice, a wife is declared by the wise to be half the body of her husband, equally sharing the fruit of pure and impure acts. Of him whose wife is not deceased half the body survives. How then should another take his property while half his person is alive? Let the wife of a deceased man who left no male issue take his share, notwithstanding kinsmen, a father, a mother, or uterine brother, be present. Dying before her husband a virtuous wife partakes of his consecrated fire: or if her husband die before her she shares his wealth: this is a primeval law. Having taken his moveable and immoveable property, the precious and the base metals, the grains, the liquids, and the clothes, let her duly offer his monthly, half-yearly, and other funeral repasts.
27. So Vishnu ordains:
The wealth of him who leaves no male issue goes to his wife.
28. Jimuta Vahana upon this passage made the comment that
It must not be alleged that the mention of the widow is intended merely for the assertion of her right to wealth sufficient for her subsistence. For it would be irrational to assume different meanings of the same term used only once, by interpreting the word wealth as signifying the whole estate in respect of brothers and the rest, and not the whole estate in respect of the wife. Therefore, the widow's right must be affirmed to extend to the whole estate.
29. Thus Vrihat Menu says:
The widow of a childless man, keeping unsullied her husband's bed, and persevering in religious observances, shall-present his funeral oblation and obtain (his) entire share.
30. Again, in the Dayabhaga Jimuta Vahana ordains that.
on failure of heirs down to the son's grandson, the wife, being inferior in pretensions to sons and the rest, because she performs acts spiritually beneficial to her husband from the date of her widowhood (and not, like them, from the moment of their birth) succeeds to the- estate in their default.
31. Thus Vyasa says:
After the death of her husband let a virtuous woman observe strictly the duty of continence; and let her daily, after the purification of the bath, present water from the joined pulms of her hands to the manes of her husband. Let her day by day perform with devotion the worship of the gods, and especially the adoration of Vishnu, practising constant abstemiousness. She should give alms to the chief of the venerable for the increase of holiness, and keep the various fasts which are commanded by sacred ordinances. A woman who is assiduous in the performance of duties conveys her husband, though abiding in another world, and herself to a region of bliss.
32. Again, Jimuta Vahana expounds the law as follows:
But the wife must only enjoy her husband's estate after his demise-.. She is not entitled to make a gift, mortgage or sale of it.
33. Thus Catyayana says:
Let the childless widow, preserving unsullied the bed of her lord and abiding with her venerable protector, enjoy with moderation the property until her death After her let the heirs take it.
Abiding with her venerable protector, that is, with her father-in-law; or others of her husband's family, let her enjoy her husband's estate during her life; and not, as with her separate property, mike a gift, mortgageer sale of it at her pleasure.
Nor shall the heir of the woman's separate property (as her brothers, etc.,) take the succession (on failure of daughters and daughter's sons), to the exclusion of her husband's heirs, for the right of those persons, whose succession is declared under that head is relative to the property' of a woman (other than that which is inherited by her).
Therefore those persons who are exhibited in a passage above .cited as the next heirs on failure of prior claimants, shall, in like manner as they should have succeeded if the widow's right had never taken effect equally succeed to the residue of the estate remaining after her use of it, upon the demise of the widow in whom the succession had vested.
34. Dwarkanath Mitter J. passed the following comment upon the law as laid down by these sages:
It should not be supposed that the above provisions were intended by their framers to serve as mere moral precepts which the widow is at liberty to obey or disobey at her pleasure; on the contrary, the utmost precaution appears to have been taken by them to secure their strict enforcement. We have already shown that according to the Hindu law women are deemed to be never fit for independence, and the widow in possession of her husband's estate is no exception to the general rule. When the husband is dead (says Narada) his kin are the guardiaps of his childless widow. In the disposal of property and care of her person, as well as in her maintanance, they have full power.
35. The authority of these passages is distinctly recognised in the Dayabhaga, which lays down that
In the disposal of property by gift or otherwise she is subject to the control of her husband's family after his decease and in default of sons.
36. (Dayabhaga, c. xi, s. lv. 64).
37. A Hindu widow does not possess a life-estate in the property which she has inherited from her husband, for during her life-time she may, and often does, lose the estate which passed to her on her husband's death. On the other hand by effecting an alienation within the limited ambit of her power of disposal a Hindu widow is able to transfer t& the assignee a proprietary title to the property alienated. But the restrictions upon her power of alienation are various and formidable. No doubt for certain religious, charitable, or customary purposes, or those which conduce to the spiritual welfare of her deceased husband, or are founded on legal necessity, her capacity to dispose of the corpus of the estate is wide, if not unfettered. With respect to alienations for legal necessity it is to be remembered that
When the alienation of the whole or part of the estate is to be 41 supported on the ground of necessity then, if such necessity is not proved aliunde, and the alience does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as might fairly be expected to be interested to quarrel with the transaction will be held to afford a presumptive proof, which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.
38. (per Lord Dunedin in Ranqasami's case (1918) I. L. R. 42 Mad. 523; see also Debt Prasad Chowdhury v. Golap Bhagat (1913) I. L. R. 40 Calc. 721. (2).
39. I confess that I should have expected to find that all other alienations by a Hindu widow were utterly void and inoperative. But it is now settled beyond doubt or controversy that for purposes not authorised under the Hindu law a Hindu widow is entitled to give, sell, mortgage, or otherwise alienate property which she has inherited from her husband, or any part thereof, for a term which does not exceed the period during which she remains in the enjoyment of her widow's estate: see Moniram's case (1880) I. L. R. 5 Calc 776 i L. R. 7 I. A. 115. Further, as between the widow and the assignee such alienations by the widow are regarded as valid and binding, and the widow herself is not entitled to impugn the validity of the transaction, for she does not hold the property merely as a trustee for the reversioners, but, subject to certain restrictions, as the owner thereof, and when she purports to act in the capacity of owner she is not permitted to derogate from her grant. On the other hand unauthorised alienations by a Hindu widow are voidable at the instance of the reversioners.
A Hindu widow is not a tenant for life, but is the owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is in fact nothing for the Court either to set aside or cancel as a Condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint a declaration that the ijara was inoperative as against them as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defend- ants to plead and (if they could) prove the circumstances which they relied on for showing that the ijara or any derivative dealings with the property were not in fact voidable, but were binding on the reversionary heirs.
40. (per Lord Davey in Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) I. L. R. 34 Calc. 329, 333.
41. During the continuance of the widow's estate the person or persons entitled to the reversionary interest in the husband's estate upon the determination of the widow's interest therein are also entitled to restrain the widow from alienating the corpus of the property for purposes which are unauthorised; to prevent her from committing waste; and to claim a declaratory decree that any such alienation is voidable as against them.
A reversionary heir, although having only those contingent interests which are differentiated little, if at all, from a spes successionis, is recognised by Courts of Law as having a right to demand that the estate be kept free from waste and free from danger during its enjoyment by the widow or other owner for life.
42. But a reversionary heir thus appealing to the Court truly for the conservation and just administration of the property does so in a representative capacity so that the corpus of the estate may pass The Court held that the plaintiff was entitled to enforce his mortgage on the widow's life-estate in the property notwithstanding the surrender of her entire interest therein to the heir presumptive of her deceased husband. It may be that that decision can be' supported either on the ground that the deed of surrender was executed pendente lite, or on the ground that the execution of the surrender was a fraudulent transaction to which both the widow and the next reversioner were parties. Sadasiva Ayyar J. however, based his decision on the ground that
the artificial mediaeval doctrine of a widow having no full power of alienation, and the consequent doctrine superimposed by the Bengalee lawyers on this doctrine, namely, the doctrine of acceleration of the reversion through a surrender by the widow of her rights as her husband's heir (this second doctrine having been adopted for South India also by the Madras High Court) cannot, in my opinion, be pushed to the extent to which Mr. Narasinha Rao wishes that they should be extended, namely, so as to defeat the claims of alienees for value who, as Sir Bhashyam Ayyangar said in Sreeramulu v. Kristamma (1902) I. L. R. 26 Mad. 143, were entitled to be protected in their reasonable expectation that they obtained a transfer valid for the widow's life except in the rare case of re-marriage.
43. Napier J. added that
the theory that the change of status of an assignor or a surrender by such assignor can invalidate legal rights obtained by an assignee is, in my opinion, so contrary to equity and good conscience that it should not be accepted by Courts of this country, whatever the ancient Hindu Law on the subject was
44. The observations of Bhashyam Ayyangar J. to which Ayyar J. referred were passed in a suit in which it was contended that the estate of the widow was determined, not by a deed of surrender in favour of the next reversioner, but by the widow's adoption of a son. His Lordship said:
The proposition that a son adopted by the widow cannot, before the termination of her widowhood by death or remarriage, recover possession of any portion of his adoptive father's estate which she might have alienated prior to the adoption, is not only sound in principle, but is in consonance with justice and equity. A widow, having authority from her husband,---however imperative such authority may be---is not bound, to exercise the same, and it is entirely optional with her to adopt or not as she may choose. A person dealing with a widow reasonably calculates that the alienation will hold good at any rate during her life-time, and except, of course, in the rare case of a re-marriage this will be ensured by the conclusion herein arrived at even when an adoption takes place subsequent to the alienation. When the widow has made an alienation prior to the adoption, the parties concerned will, before giving the boy in adoption, be fully aware of the same, and of the extent of the property remaining with the widow which will immediately come into the possession of the adopted son, and the extent of the property which will come into his possession only after the life-time of the adopting widow---provided such property had not been alienated for a necessary purpose.
45. In my opinion, the ratio decidendi of these two cases in substance was the same, namely, that during the life-time or widowhood of the widow unauthorised alienations by the widow made while she was in the enjoyment of her widow's estate are valid and unimpeachable. With great respect to the learned Judges who decided those cases the reasoning upon which the decisions rest, in my opinion, is vitiated by two fallacious assumptions: (1) that a Hindu widow inherits from her husband an estate for a term which is coterminous with her life-time, or, at any rate, with her widowhood; (2) that while she is in the enjoyment of the estate a Hindu widow possesses absolute power to alienate the property, or any part thereof, for a term which does not exceed the period of her life-time or of her widowhood. No doubt, an estate inherited by a Hindu widow from her husband in some cases has been loosely described as her life estate or an estate for her widowhood, but such expressions must be read with reference to the context in which they, appear, and for the reasons which I have stated, in my opinion, the estate which passes to a Hindu widow by way of inheritance from her husband subsists until it is determined by the happening of some event which, according to the principles of Hindu Law, puts an end to it. It is settled law that one of the events which effect the determination of a widow's estate is the surrender of her entire interest in the inherited property to the next reversioner.
It may be accepted that, according to Hindu Law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate.
46. (per Lord Morris in Behari Lal v Madho Lal Ahir Gayawal (1891) I. L. R., 19 Calc. 236, 241.
To consider first the power of surrender. The foundation of the doctrine has been sought in certain texts of the Smritis. It is unnecessary to quote them. They will be found in the opinions of the learned Judges in some of the cases to be cited. But in any case it is settled by long practice and confirmed by decisions that a Hindu widow can renounce in favour of the nearest reversioner if there be only one, or of all the reversioners nearest in degree if more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death.
47. (per Lord Dunedin, in Rangasami Gounden v. Nachiappa Gounden (1918) I. L. R., 42 Mad. 523, 532.
48. With respect to the second of the above assumptions I am of opinion that the power of alienation which a Hindu widow possesses, so far from being absolute or unfettered, is rigidly limited and restricted do the manner which I have stated, and that every unauthorized alienation by the widow is voidable at the instance of the reversioners. The learned Judges then proceed to comment upon the hardship which would result to alienees from the Hindu widow if the principles of Hindu law were to be enforced. But where the law is clear there is no room for an argumentum ab inconvenienti; although, for my part, I am unable to discern any harshness in the application of the Hindu law on the subject. Why should the Court extend special protection to an alienee from a Hindu widow, and none to an alienee from a minor? Upon what principle of fairness or equity flight the Court to favour the interests of an alienee to the detriment of the rights of the reversioners? I can see none. In my opinion, a person who is minded to enter into a business transaction with a Hindu widow must be taken to know the law, and to be aware of the restricted power of alienation which a Hindu widow possesses. In this controversy an argumentum ab inconvenienti appears to me to be out of place. Moreover, the learned Judges who were parties to these decisions seem to have been influenced unduly by the view which is widely entertained amongst western communities that it is desirable, whenever possible, to remove the clogs which fetter the free transfer of property, and not to have borne in mind the danger of regarding the principles of Hindu Jaw from the standpoint of western idealism of which Lord Dunedin gave the warning to which I have alluded, (see also per Lord Giffard in Cossinaut Bysack's case (1819) 2 Morley's Digest 198, and Khub Lal Singh's case (1908) I. L. R. 33 Bom. 88. I desire to add, (although I express my opinion with diffidence and reserve, for the sources from which an European can draw information on this subject are necessarily restricted), that I am not aware of the existence of any desire on the part or the Hindu community generally to enlarge the powers of alienation possessed by a Hindu widow. Of course, it may further be urged that, whereas the alienations in the above cases were for valuable consideration, the transfer in question is by way of gift and
being a deed of gift it cannot possibly be held to be evidence of alienation for value for purposes of necessity. It follows, therefore, that the deed taken by itself cannot stand.
49. (per Lord Dunedin in Rangasami's case (1918) I. L. R. 42 Mad. 523.
50. But for the purpose in hand it matters not, in my opinion, whether the alienation was for valuable consideration or not. The important feature of the transaction is not that it is voluntary, but that it is unauthorized, and, in my opinion, all alienations for purposes not permitted by the Hindu law are to be treated as in para materia. The reasoning upon which the decisions in those cases was based has been rejected by the Bombay High Court (Rama Krishna's case (2). In my opinion, it is not in consonance with the principles of Hindu, law, or consistent with the course of judicial pronouncements, and with all due respect I am unable to acquiesce in it.
51. Applying the principles which I have enunciated to the facts of the present case, in my opinion, having-regard to the oral evidence which was adduced at the trial and the evidence inherent in the deed of relinquishment, Shyamrangini by executing the said deed intended to relinquish in favour of Bhabani, the next reversioner, and thereby in fact surrendered to him, her entire interest in the estate which she had inherited as the widow of her deceased husband. It is true that eo nomine the property which she had given to Taranath was not included in the schedule to the deed of relinquishment; (it may be because she did not regard that property as still forming part of the estate); but it is clear, to my mind, that she intended to surrender to Bhabani her entire interest in her husband's estate.
52. In these circumstances the conclusion at which I have arrived is that in so far as the decree declared that Bhabani was entitled to possession of the property described in schedule Ga, and ordered that possession and mesne profits in respect thereof be given to him the decision of the learned trial Judge ought to be affirmed. Further, even if it were to be held that Shyamrangini by executing the deed of surrender did not thereby relinquish in favour of Bhabani the entirety of her widow's estate, inasmuch as under the deed of gift to Taranath Shyamrangini did not merely transfer her own interest in the property for the period during which her interest therein enured, in my opinion, the Court ought to interfere at the instance of the reversioners to prevent the wrongful dissipation of the estate by Shyamrangini. By the deed of gift Shyamrangini admittedly purported to transfer her interest in the property, but in the deed it is further provided that
You will own and hold possession down to your sons, grandsons and other heirs and representatives, and remain in enjoyment and possession thereof with great pleasure, with power to alienate the same by gift or y sale, and by causing mutation of your name in place of mine in the Sherista of the Zemindar. To that neither myself nor my heirs or legal representatives shall be competent to raise any objection; even if raised the same will not be fit to be heard.
53. In my opinion, the effect of the deed of gift was not only that Shyamrangini thereby alienated her own interest in the property, but that under its provisions she set up a title adverse to that of the reversioners, and attempted thereby to change the course-of succession to the property alienated. In my opinion, having regard to the principles and authorities to which I have referred, the reversioners would be entitled to impugn this transaction even during the subsistence of Shyamrangini's interest in the estate, I regret that my learned brother's view on this subject differs from that which I have expressed, but for the above reasons I am of opinion that the cross-appeal fails, and ought to be dismissed.
54. Their Lordships having differed in opinion, the question arose as to whether the appeal was governed by Clause 36 of the Letters Patent or Section 98 of the Code of Civil Procedure. Arguments having been addressed to the Court, their Lordships delivered the following judgments.
55. As my learned brother and I differed in regard to the order to be passed on the appeal we have now to deal with the result of that difference, in other words to decide whether we are to follow the rule of seniority prescribed by Clause 66 of the Letters Patent, or the rule of affirmance contained in Section 98 of the Civil Procedure Code.
56. This is the second time that I have had to consider the question and my learned brother on this occasion takes the view expressed by Suhrawardy J. (see Purna Chandra Chatterji v. Narendra Nath Choudhry) (1925) 29 C.W.N. 755, on the former occasion, that we ought to follow the rule of affirmance. We have heard the learned pleaders on the subject, and I have had the advantage of considering my learned brother's judgment. In the circumstances it is clearly my duty to examine the matter anew.
57. In the first place I wish to repeat that I based my decision in the former case solely on what I deemed to be a correct reading of the judgment of their Lord-'hips of the Privy Council in the case of Bhaidas Shivdas v. Bai Gulab (1921) I. L. R. 45 Bom. 718; L. R. 48 I. A. 181. But for that judgment I should without hesitation have followed the directions of Section 98, Civil Procedure Code, for I am satisfied that since 1884 when the Full Bench delivered judgment in the case of Gossami Sri Sri Gridhariji Maharaj Tickait v. Purushotum Gossami (1884) I. L. R. 10 Calc. 814, it has been the practice of this Court to adopt the principle of affirmance when there has been a difference of opinion between two Judges hearing an appeal on the appellate side; and in my view that practice is just as correct under the present Code as it was under the Code of 1882.
58. The question, therefore, as it presents itself to me is whether or not the judgment of their Lordships is expressed in such terms as to embrace all differences of opinion, both those arising in appeals from Judges exercising original jurisdiction and those arising in appeals from subordinate Courts.
59. It is true that their Lordships were dealing with an appeal in a suit tried by a Judge exercising the High Court's original jurisdiction; That fact of itself would be enough to warrant me in holding that the decision was meant to relate only to appeals of that particular class if it were not for the very peculiar features of the case. The appeal to His Majesty in Council was limited to one ground, and that that the Judges of the Bombay Court had erred in following the procedure laid down in Section 98, Civil Procedure Code. When the controversy was of such a nature, that is to say, when the appellant's contention was that the Judges had applied to that appeal the procedure that was applicable to appeals of a different class, whether reference was made in argument to the existence of such a class or not, I found it very difficult to distinguish the case merely on the principle of not extending a judgment o a different set of facts, or by laying emphasis on the words 'in (sic) instance'. Again, their Lordships' choice of Nunaeeput's ease (1) as an illustration seemed to me a source of grave difficulty, for that was an appeal from the mofassil, and the judgment contains a passage of considerable importance. My learned brother Suhrawardy J. may be right in his interpretation of the law as it stood in 1870, but the reasons given by Norman G. J. are different.
60. Those are the two difficulties which lay in my way. I have now had the advantage of being able to study Suhrawardy J.'s judgment in print, and also of hearing further arguments, and of perusing the judgment which my learned brother is about to deliver, and I have come to the conclusion that I ought to defer to the opinion expressed by my learned brothers and these are my reasons.
61. In the first place Nundeeput's case (1870) 13 W. R. 209, was quoted only as an illustration of a fact, and I ought not to regard the reference to it by way of illustration as endorsing by implication the reasoning on which the judgment was founded.
62. Secondly, my learned brother in his judgment has explored the history of the matter, and shown how it is that the principle of Clause 36 of the Letters Patent has been preserved for appeals within the Court, and that the Legislature has consistently sought to enforce the principle of affirmance, at any rate for Appellate Side appeals. It is abundantly clear that the Legislature had no intention of going back on the method established by the Code of 1877 and 1882 when the present Code was introduced, and if the terms of Section 4 have that effect it is an accident.
63. Next, I am more impressed than I was by the distinction between the two classes of appeal, that is by the fact that the appeals of one class are within (sic) Court while those of the other class are from subordinate Courts. The distinction is important because the Civil Procedure Code makes no mention of, the one while it contains elaborate rules for the other. Coupled with this is the necessity of attaching some meaning to the words of Section 98, Civil Procedure A Code for in this Province, at any rate, they are superfluous unless they refer to Divisional Benches of this Court.
64. I have also studied the decision of the Bombay High Court in the case of Bhuta v. Lakadu Dhansing (1918) I. L. R. 43 Bom. 433. The judgment was delivered before the decision in Bhaidas's case (1921) I. L. R. 45 Bom. 718; L. R. 48 I. A. 181, but it is of value because the possible effect of Section 4 was present to the minds of the learned Judges.
65. For these reasons I think that I am not justified in differing from my two learned brothers in holding that in appeals from subordinate Courts a difference of opinion between two Judges forming a Division Bench must continue to be regulated by the provisions of Section 98 of the Civil Procedure Code, and that the decision in Bhaidas's case (1921) I. L. R. 45 Bom. 718; L. R. 48 I. A. 181, must be taken to refer only to that class of appeals to which it expressly relates.
66. A decree will now be drawn up in accordance with the judgment of my learned brother Mr. Justice Page.
67. Owing to the difference of opinion which has arisen between my learned brother and myself it is incumbent upon the Court to determine whether this appeal is governed by Clause 36 of the Letters Patent of 1865 or by Section 98 of the Civil Procedure Code of 1908. The controversy which has raged over this question is one that has vexed the Courts for 60 years, and can only satisfactorily be set at rest by the action of the Legislature now long overdue. The solution of the problem, however, as I apprehend the matter, will be found to depend upon the answer which is given to two questions.
(2) What was the law in force at the time of the enactment of the Civil Procedure Code (Act V of 1908)?
(2) Was the law then in force repealed by Section 4 of the said Act?
68. Upon the creation of the High Court at Fort William in Bengal, pursuant to 24 and 25 Vict. Ch, 104 28 Vict. Ch. 15, and the Letters Patent of 1862 and 1865, the said High Court became vested inter alia with the original jurisdiction administered by the Supreme Court, and with the appellate jurisdiction from mofussil Courts which formerly had been exercised by the Suddar Dewani Adalat. Now, in the case of an appeal to the Suddar Dewani Adalat, it was provided by Section 23 of Act XIII of 1861 that
if an appeal lies to the Suddar Court, it shall be heard and deter- mined by a Court consisting of two or more Judges of that Court; if when the Court consists of only two Judges, there is difference of opinion upon the evidence in a case in which it is competent to the Court to go into the evidence, and one Judge agrees in the opinion of the lower Court as to the facts, the case shall be determined accordingly If in a Court so constituted there is a difference of opinion upon a point of law the Judges shall state the point upon which they differ and the case shall be re-argued upon that question before one or more of the other Judges and shall be determined according to the opinion of the majority of the Judges of the Suddar Court by whom the appeal is heard.
69. By the preamble to this Act (as also by that to Act VIII of 1859) the provisions of the said Act were not to extend to Courts established by Royal Charter. On the other hand by Clause 4 of the Letters Patent of the 26th March 1774, under which the Supreme Court of Judicature at Fort William was established, it was provided
that all judgments, rules, orders, and acts of authority or power whatsoever, to be made or done by the said Supreme Court of Judicature at Fort William in Bengal, shall be made or done by and with the concurrence of the said four Judges or so many, or such one of them, as shall be on such occasions respectively assembled or sitting as a Court, or of the major part of them so assembled and sitting, provided always, that in case they shall be equally divided the Chief Justice, or in his absence the senior Judge present, shall have a double or casting vote.
70. In the Letters Patent of 1862 no provision was made for the course to be pursued in the event of the Court being equally divided in opinion, but under Clause 36 of the Letters Patent of 1865 it was provided:
And We do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Fort William in Bengal, in the exercise of its original or appellate jurisdiction, may be performed by any Judge or by any Division Court thereof, appointed or constituted for such purpose, [in pursuance of Section 108 of the Government of India Act of 1915;] and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority; but if the Judges should be equally divided then the opinions of the senior Judge shall prevail.
71. In prescribing the mode of procedure laid-down in Clause 36 the Crown appears to have had in mind the-rule which had governed the Supreme Court in such cases, but, whatever the source of the rule may have been, from 1865 until 1877, when the Civil Procedure Code (Act X of 1877), was enacted, the procedure in Clause 36 was followed uniformly in all appeals whether they were preferred from the decision of a Judge in the exercise of the original civil jurisdiction of the High Court or from Courts. subordinate to the High Court. (Shahazadi Hajra Begum v. Khaja Hossein Ali (1869) 4 B. L. R. 86, Nundeeput Mahta v. Urquhart (1870) 13 W. R. 209. It is to be observed that by Clause 44 of the Letters Patent of 1865 it was provided that the Letters Patent were to be subject to the legislative powers of the Governor-General in Council,' and on the 30th March 1877 the Code of Civil Procedure (Act X of 1877) was passed by the Governor-General in Council. By Section 575
When the appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges, or of the majority (if any) of such Judges. If there be no such majority which concurs in a judgment varying or reversing the decree appealed against such decree shall be affirmed; provided that if the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, the appeal may be referred to one or more of the other Judges of the same Court, and shall be decided according to the opinion of the majority (if any) of all the Judges who have been the appeal, including those who first heard it. Where there is no such majority which concurs in a judgment varying or reversing the decree appealed against such decree shall be affirmed. The High Court may from time to time make rules consistent with this Code to regulate references under this section.
72. The provisions of Act X of 1877 relating to appeals are reproduced in the Civil Procedure Code of 1882 (Act XIV of 1882), and the terms of Section 575 are similar to those of Section 98 of the Civil Procedure Code of 1908 except that, whereas in Section 575 the reference to one or more other Judges of the Court is on law and fact, in Section 98 it is restricted to the point of law in respect of which the Appeal Bench has differed. I find it difficult to express my view of the rule laid down in Clause 36 of the Letters Patent, with becoming moderation, for I cannot see in it a scintilla either of equity or of merit. It will suffice, however, for the purposes of this appeal, that I should refer to the observations of Mr. Arthur Hobhouse, Q. C., as he then was, in presenting the report on the proposed Code of Civil Procedure to the Governor-General in Council on the 21st September 1876:
The law with respect to appeals where the appellate Court consists of a plurality of Judges is not in a satisfactory state. According to Section 332 of the Code which applied to the Sadar Court, when an appellate Court of two Judges differs upon a question of fact, and one of the Judges agrees with the Court below, the judgment of the Court below is t stand. When they differ upon a point of law the point is to be re-argued before another Judge or other Judges, and is to be decided according to the opinion of the majority of the whole of the Judges who have heard the point argued. By the Charters of the High Courts if a Division Court of two or more Judges is equally divided in opinion, the opinion of the senior Judge is to prevail. Now, in that clause of the Charter original business and appellate business were lumped together, and though the rule ii a very good rule in respect of origin a business it is not satisfactory as applied to appellate business. The result, of it is that the plaintiff may have a great preponderance of judicial opinion in his favour and yet a decree be given for the defendant. It may happen that a man has obtained a decree, in the Court below or in two Courts below and that half the appellate Court is in favour of his retaining that decree, but, because a single Judge being the other half of the appellate Court, thinks otherwise, then the decree goes for the defendant. We had to consider this question very carefully last year in connection with the Burma Courts Act, because the Principal Court of appeal in Burma consists of no more than two Judges, and the principle we applied there was that which prevails in England, and which seems to m to be the most reasonable of all principles; that if there is no majority of the appellate Court which can agree to alter, and how to alter, the decree of the Court below, that decree shall remain unaltered. I must confess that in our Bill No. 3 we left that matter in a rather unsatisfactory position, for we copied too faithfully both tire Code and the Charters, and the result was that we had introduced two conflicting principles. However, we found out out error, and we have now adopted the principle which will be found embodied in Section 575 of Bill No. IV.
73. It is, I think, clear beyond all doubt or controversy that in passing Section 575 of the Civil Procedure Code of 1877 the Legislature intended to substitute in all appeals to which the provisions of Section 575 reasonably could apply the rule laid down in Section 575 for the rule in Clause 36 which was then in force.
It is quite plain that those provisions create a totally distinct method of procedure in the event of difference between two Judges from that which was laid down by Section 36. Under Section 36 of the Letters Patent the judgment of the Judge who was the senior Judge would be the judgment which the parties before the Court would have a right to obtain; under Section 98, the judgment to which they are entitled is the judgment of the majority of all the Judges who have heard the appeal; and this case shows that those two provisions might produce a totally different result.
74. Per Lord Backmaster hi Bhaidas Shivdas v. Bai Golab (1921) I. L. R. 45 Bom. 718. L. R. 48 I. A. 181, 184.
75. It follows, therefore, that if and in so far as Clause 36 and Section 575 are extended to the same subject-matter, and the two enactments are inconsistent, the at cannot stand together, and the earlier enactment pro tanto must be deemed to have been repealed by the later one: The Conservators of the River Thames v. Hall (1868) L. R. 3 C. P. 415 and Emperor v. Probhat Chandra Barua (1924) I. L. R. 51 Calc. 504. That the two rules are incompatible, I apprehend, will be conceded, but are they also applicable to the same subject-matter? Can it reasonably be suggested that the two enactments are able to stand together because Section 575 does not apply to the High Courts but to some other Courts, and, therefore, in relation to appeals to the High Court that the provisions of Clause 36 are still in force? By Sections 5 and 8 of the Civil Procedure Codes of 1877 and 1882, however, the Small Cause Courts are excluded expressly from the ambit of the appeal sections of the Codes: (see also Sections 7 and 8, and Orders L and LI of the Code of 1908). To what Courts other than the High Courts, therefore, were the provisions of Section 575 intended to, or can they, apply? I know of none. In my opinion, it is an irresistible inference from the provisions of the Code of 1877 that it was intended that Section 575 should be applied to all appeals which up till the time of its enactment were within the ambit of Section 36 of the Letters Patent. It is to be remembered that the Code of 1877 contains no saving clause similar to Section 4 of the Code of 1968. On the contrary, by Sections 631 and 632 the Codes of 1877 and 1882 in express terms are made applicable to the Chartered High Courts, except as provided by Section 638, which contains no reference to Section 575. Moreover, some doubt having arisen as to whether the appellate jurisdiction of the High Court included the exercise of its powers of revision, by Section 628 a rule was applied to applications for review similar to that which governed appeals see Order XLVII, Rule (6), Order XLIX, Rule (3) of the Code of 1908 and Chappan v. Moidin Kutti (1) (1898) I. L. R. 22 Mad. 68. In my opinion, it is clear and certain that the Legislature intended to substitute Section 575 of the Code for Clause 36 of the Charter, and to the extent to which the provisions of Section 575 applied to appeals to which Clause 36 also extended the provisions of Clause 36 mast be regarded as no longer in force after the Code of 1877 was enacted. The same view of the meaning and effect of Section 575 was taken by Edge C. J. in Husaini Begam v. The Collector of Mazaffarnagar (1889) I. L. R. 11 All. 176, 182, where his Lordship observed:
I am of opinion that Section 27 of our Letters Patent is superseded in those oases only to which Section 575 of the Code of Civil Procedure ' properly, and without straining language, applies.
76. No distinction in this behalf, I think, can be drawn between first and second appeals from subordinate Courts to the High Court, and, in my opinion, Section 575 applied alike to both. This view has consistently been held by the High Courts in India since 1879 in which year the case of Appaji Bhiv(sic) v. Shivlal Khubchand (1879) I. L. R. 3 Bom. 204, was decided by Westropp C. J. and Melville and West JJ. in the Bombay High Court. see also Shahazadi Begum's case (1869) 4 B. L. R. 86, Narayanasami Reddi v. Osuru Reddi (1901) I. L. R. 25 Mad. 548 and the cases cited in the judgment of Suhrawardy J. in Becharam v. Purna (1925) 41 C.L.J. 456. Indeed, in Gossami Sri 108 Sri Gridhariji Maharaj Tickait v. Purushotum Gossami and Ors. (1884) I. L. R. 10 Calc. 814, in which a difference of opinion arose in an appeal from the decision of a Judge in the exercise of the original civil jurisdiction of the High Court, the Fall Bench of the Calcutta High Court, consisting of Garth C. J. Mitter, McDonnell, Prinsep and Wilson JJ. went so far as to lay down in general terms that
We agree in the view taken by the Bombay High Court in the case of Appaji Bhivrav v. Shivlal Khubchand (1879) I. L. R. 3 Bom. 204, that the effect of Section 575 of the Code is to supersede the provision in Clause 36 of the letters Patent that in the event of any disagreement between two Judges of a Division Bench the judgment of the senior Judge should prevail; but and still that, notwithstanding that Section, Clause 15 of the Letters Patent remains in full force.
77. I confess that I should have thought that the law as laid down in that case was correct. But after the decision of the Judicial Committee in Hurrish Chunder Chowdhry v. Kalisunderi Debi (1882) I. L. R. 9 Calc. 482, in which case, their Lordships observed that they do not think that Section 588 of the Act X of 1877 applies to such a case as this, where the appeal is from one Judge of the Court to the Full Court doubts were entertained, founded partly upon the language of Section 540 and kindred sections of the Code, and partly upon the fact that the original civil jurisdiction of the High Court was derived not from the Code but from the Letters Patent as to whether the sections of the Code relating co appeals were applicable to appeals from one Judge of the High Court to a Division Bench of the same Court. Now, there is no Court of Appeal within the High Court to which appeals can be preferred from the decision of a Judge or Judges of the High Court exercising the original civil jurisdiction with which the Court is endowed under the Letters Patent of 1865. The High Court was constituted after the model of the old Court of King's Bench in England, in which no one Judge was subordinate' to another, and in which an appeal from one Judge of the Court was preferred to the Court on appeal, and not to a Court of appeal. I have often heard senior men who remembered the system as it obtained in England before the Judicature Act of 1873 lament that the Judges suffered a serious dimunition of prestige after the creation of the Court of Appeal in England. But fortunately in this country the constitution of the High Court has remained unchanged. Having regard to the constitution of the High Court in its ordinary original jurisdiction, therefore, inasmuch as the Courts regarded the provisions of the Code relating to appeals as mainly, if not wholly, applicable to appeals from subordinate Courts to a superior Court, it was held that the appeal sections did not apply to appeals from one or more Judges of the Court to the High Court. In Sabhapathi Chetti v. Narayanasami Chetti (1901) I. L. R. 25 Mad. 555, 558, the Madras High Court held that
Both Section 540 of the Code of Civil Procedure relating to appeals from original decrees, and Sections 588 and 591 relating to appeals from orders provide for appeals from one Court to another of higher grade. The provision made by Section 15 of the Letters Patent for appeals from one or more Judges of the High Court to other Judges of the same Court is entirely foreign to the provisions of the Civil Procedure Code relating to appeals from one Court to another.
78. Chappan's case (1898) I. L. R. 22 Mad. 68, Sesha Ayyar v. Nagarathna Lata (1903) I. L R. 27 Mad. 121. Debendra Nath Das v. Bibudhendra Mansingh (1915) I. L. R. 43 Calc. 90 and Kameshwar Pershad and Anr. v. Amanutulla alias Manick Babu and Anr. (1898) I. L. R. 26 Calc. 53.
79. The language used in the appeal sections of the Code does not appear to me, however, to warrant the drastic inference which was drawn from it, and since the case of Sabitri Thakurain v. Savi (5) it must be taken, as Lord Sumner observed, that the decisions in the Madras cases
laid down their effect much more widely than was necessary, and overlooked the distinction between rules which took away existing rights of appeal and rules which recognise those rights but regulate the procedure of the Court in which such appeals are pending.
There is no reason why there should be any general difference between the procedure of the High Court in mutters coming under the Letters Patent and its procedure in other matters.... The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting he powers relating to the exercise of ordinary original civil jurisdiction to which the Code is not to apply.
80. The question to be determined is whether the particular provisions of the Gode under consideration in each case extend to the ordinary civil jurisdiction of the High Court. For example, in Mathura Sundari Dasi v. Haran Chandra Saha (1915) I. L. R. 43 Calc. 857, 866, Sanderson C. J. held in the circumstances obtaining in the case, namely, where a suit was dismissed under Order IX, Rule 8 of the Civil Procedure Code, that the Code of 1908 gave a right of appeal from a Judge exercising the original civil jurisdiction of the High Court to the Court on appeal, and that the provisions of the Code applied to such an appeal.
81. I respectfully agree with the decision in that case, and I do not think that it is open to the criticism passed upon it by Hay ward J. in Bhuta Jayatsing v. Lakadu Dhansing (1918) I. L. R. 43 Bom. 433. On the other hand, in Toolseemoney Dassee v. Sudevi Dassee (1899) I. L. R. 25 Calc. 361, expressing a view adverse to the extension of Section 575, Ameer Ali J. observed:
In my opinion, Section 588 of the Code of Civil Procedure applies only to orders made by subordinate Courts which derive their powers from the Code. The Civil Procedure Code is applicable to the Original Side of the High Court in so far as the procedure is concerned, and some of its provisions have no doubt had the effect of curtailing the rights of appeal by giving finality to certain orders of a Judge exercising singly the ordinary original civil jurisdiction of the High Court. In other words, it lays down an uniform procedure for all Courts of original civil Jurisdiction including the High Court on its original side. But the powers of the High Court are not derived from the Code and consequently an order of a Judge of the High Court exercising its original civil jurisdiction, though made in accordance with the procedure laid down in the Code, can hardly be said to be made 'under the Code'. Besides, Section 589 of the Code (sic)Judicates to my mind that the preceding section was applicable only to the orders of subordinate Courts.
82. Again, in Debendra Nath Das v. Bibudhendra Mansingh (1915) I. L. R. 43 Calc. 90, 93. Jenkins C. J. stated
The Code makes no provision for an appeal within the High Court, that is to say, from a single Judge of the High Court. This right of appeal depends on Clause 15 of the Charter.
And here I may point out that a Judge sitting alone is not a Court subordinate to the High Court, but performs a function directed to be performed by the High Court (Clause 15, Letters Patent.)
83. Accordingly, it was held in Chappan's case (1898) I. L. R. 22 Mad. 68, Sabhapathi Chetti's case (1901) I. L. R. 25 Mad. 555, Sesha Ayyar's case (1903) I. L. R. 27 Mad. 121, Rooplaul's case (1965) I. L. R. 29 Mad. 1, Lachman Singh's case (1903) I. L. R. 26 All. 10. Surajmal's case (1917) 20 Bom. L. R. 185 and Bhuta Jayatsing's case (1918) I. L. R. 43 Bom. 433, (in the Madras cases much reliance being placed on the third part of Section 652 of the Codes of 1877 and 1882. which was added by Section 2 of the Civil Procedure Code Amendment Act (XII of 1895), and which was re-enacted in Section 12 of the Code of 1908;, that the procedure of Section 36 remained unrepealed and in force in relation to appeals to the High Court from a Judge or Judges of the Court exercising original civil jurisdiction. In 1908, therefore, at the time when the Civil Procedure Code of that year was passed the law in force relating to differences of opinion in appeals to the High Court from a Judge or Judges of the High Court exercising original civil jurisdiction was Clause 36 of the Letters Patent of 1865, while a difference of opinion arising in an appeal from a subordinate Court to the High Court was governed by Section 575 of the Code of 1882.
84. I apprehend that no doubt can arise that in like manner the effect of Sections 117 and 120 of the Code of 1908 was to extend inter alia Part VII of the Code (in which Section 98 appears) to the Chartered High Courts of India. But by Section 4 of the Code it is provided that
In the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form prescribed by or under any other law for the time being in force.
85. Now, assuming that the law in force relating to differences of opinion in appeals to the High Court was that which I have stated, it follows that if Clause 36 now extends to appeals from subordinate Courts to the High Court, Section 4 must be taken to have effected pro tanto a repeal of the law in force at the time when the Code of 1908 was enacted. Indeed, this must be so unless in construing Section 4 the provisions of the Code of 1908 are deemed to be a fresh start in litigation, and no regard is to be paid to the law in force at the date when the Code of 1908 was enacted. What a strange anomaly that a clause which was designed and purported to save laws and forms of procedure then in force should operate to repeal them. That it was neither intended nor contemplated by the Legislature that such a construction would be put on Section 4 is plain, for Mr. Brie Richards, K.C., as he then was, in presenting the report on the Bill of 1908 to the Governor-General in Council on the 6th September 1907 observed:
The next subject dealt with in the Bill is the important one of appeals, and in regard to that I have little to say, because in fact the provisions remain much as they are in the present Code.
86. Moreover, since the Code of 1908 was passed the Courts in India consistently have held that the law then in force was not repealed by Section 4 of 1908, and remained unaffected by the provisions thereof It is urged, however, that the Judicial Committee of the Privy Council, notwithstanding the matters to which I have adverted, in Bhaidas Shivdas's case (1921) I. L. R. 45 Bom. 718; I. L. 48 I. A. 181 have held that Clause 36 of the Letters Patent of 1865 extends to all appeals to the High Court by reason of Section 4 of the Code. I cannot persuade myself that their Lordships intended to decide, or in fact determined, so broad and general a question. In Bhaidas's case (1921) I. L. R. 45 Bom. 718; I. L. 48 I. A. 181, the appeal was preferred from a decision of MacLeod J. exercising original civil jurisdiction, to the High Court at Bombay, and the appeal was heard before Scott C. J. and Heaton J. They differed in opinion, Scott C. J. holding that the appeal ought to succeed, Heaton J. on the other hand, agreeing with the Judge who tried the suit.
The course then was taken to refer the matter to two offer Judges, Batchelor and Shah JJ. who also decided adversely to the plaintiff's contention.
The plaintiff has now brought an appeal before His Majesty in Council, and the first point the has raised is this: that the order made referring the case to the decision of Batchelor and Shah JJ. was ultra vires and void; that there was no jurisdiction in these two Judges to entertain the dispute; and that he is entitled as of right to a decree in accordance with the opinion of Scott C. J. the senior of the two Judges before whom the appeal was first heard.
87. It is to be observed that Scott C.J. and Heaton J. in Bhuta Jayat Singh's case (1918) I. L. R. 43 Bom. 433, while the proceedings in Bhaidas's case (1921) I. L. R. 45 Bom. 718; L. R. 48 I. A. 181, were pending, took the contrary-view, and expressed the opinion that Clause 36 of the Letters Patent applied to an appeal from a Judge; exercising original civil jurisdiction. Lord Buckmaster in Bhaidas's case (1921) I. L. R. 45 Bom. 718; L. R. 48 I. A. 181, after citing Section 4 of the Code, stated
There is no specific provision in Section 98, and there is a special form of procedure which was already prescribed. That form of procedure Section 98 does not, in their Lordships opinion, affect. The consequence is that the appellant is right in saying that in this instance a wrong course was taken when this case was referred to other Judges for decision, and his technically entitled to a decree in accordance with the judgment of the Chief Justice. This view of the section is not novel, for it has been supported by judgments in Madras, in Allahabad, and in Calcutta; see Rooplaul v. Lakshmi Doss (1905) I. L. R. 29 Mad. 1, 24, Lachman Singh v. Ramlagan Singh (1903) I. L. R. 26 All. 10 and Vuvdeeput Mahta v. Urquhart (1870) 13 W. R. 209.
88. Upon these observations is founded the contention that the Judicial Committee intended to decide that all appeals to the High Court are governed by Clause 36 of the Letters Patent. I do not think that the language used supports any such contention. Section 4 does not preserve every special law or form of procedure physically retained in the Statute Book and not expressly repealed, (which the learned pleader for Taranath suggested was the position of Clause 36 when Section 4 was passed), but those only which were then in force. The provisions of Section 36 of the Letters Patent, undoubtedly, were in force on that date in respect of appeals from the original side of the High Court; but it is equally plain, as I apprehend the matter, that the provisions of the Code of 1832 had been substituted for those of Clause 36 in respect of appeals from subordinate Courts to the High Court, and that to that extent Section 36, though not expressly repealed, was no longer in force. The appeal in Bhaidas's case (1921) I. L. R. 45 Bom. 718; L. R. 48 I. A. 181, was from a Judge of the High Court exercising original civil jurisdiction, and it could not be doubted that Clause 36 extended to such an appeal It is plain, I think, that the Judicial Committee were applying their minds to the case which was before them, and it is for that reason that Lord Buckmaster was careful to state
The consequence is that the appellant is right in saying that in this instance a wrong course was taken when this case was referred to other Judges for decision.
89. The words which their Lordships employed were apt in the circumstances of the case under appeal, but it was not the language which I venture to think that the Judicial Committee would have used if their Lordships had intended to lay down a general rule that would govern all appeals to the High Court. Their Lordships did not state that Clause 36 was to have this general application. Why should it be assumed that such was their intention? Moreover, the three cases to which Lord Buckmaster referred do not warrant such a supposition; Rooplauls case (1905) I. L. R. 29 Mad. 1, being an appeal from a Judge of the High Court exercising original civil jurisdiction; Lachman's case (1903) I. L. R. 26 All. 10, an appeal from a single Judge of the High Court sitting as a Divisional Bench; while in Nundeeput's case (1870) 13 W. H. 209, the appeal was decided at a time when no form of procedure regulating appeals to the High Court other than that contained in Clause 36 was in existence. No cases were cited, and no argument addressed, to their Lordships relating to the law in force in 1903 governing appeals from. subordinate Courts to the High Court. If the Judicial Committee had been minded to reverse the settled procedure laid down by the Courts of India in a stream of judicial pronouncements during a period of nearly 60 years I am persuaded that they would not have done so out of hand, and without argument or reference to the statutes, the case law, and the history on the object; much less would they have couched their decision in terms such as those which they employed. For these reasons I hold that the decision in Bhaidas's case (1921) I. L. R. 45 Bom. 718; L. R. 48 I. A. 181. is limited to appeals from a Judge or Judges of the High Court exercising original civil jurisdiction to the Court on appeal (such as the appeal which they were called upon to determine), and is not to be taken as deciding that the law relating to appeals from subordinate Courts to the High. Court which for so long a period had been in force in India had been repealed by Section 4 of the Code bf 1908. Since Bhaidas's case (1921) I. L. R. 45 Bom. 718; L. R. 48 I. A. 181, the Calcutta High Court in at least three cases has acted upon the view which I entertain of the meaning and effect of the judgment of the Privy Council in that case, although my learned brother Walmsley at one time felt himself constrained by the language used to take a different view of the meaning to be attributed to the judgement of the Judicial Committee. In Suresh Chandra Mukerjee's case (1924) 28 C. W. N. 637. Newbould, B. B. Ghose JJ. and I expressed the opinion that Section 36 extended to differences of opinion in first appeals from a mofussil Court to the High Court. But in that case the view of the Court was merely obiter; no argument was addressed to the Court on the point, and, inasmuch as the senior Judge was in favour of dismissing the appeal, it was a matter of indifference whether Section 98 or Clause 36 was applied, for in either case the same result would have followed. After the exhaustive manner in which the subject has been argued before us on this appeal I have come to the conclusion that the untutored opinion which I then expressed was wrong, and I resile from it. In my opinion, Section 98 applies to the difference of opinion which has arisen between my learned brother Walmsley and myself in this appeal, and I agree that the cross appeal should be dismissed.