Skip to content


Sarat Chandra Pal Vs. Benode Kumari Dassi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.143
AppellantSarat Chandra Pal
RespondentBenode Kumari Dassi
Cases ReferredUma Charan Das v. Muktakeshi Dasi
Excerpt:
appeal - probate and administration act (v of 1881), sections 86 and 90--orders under the act, if all appealable--hindu widow as administratrix to husband's estate applying to sell husband's property for satisfying debts--reversioner's objection--proper order to make. - .....by the act upon him shall be appealable to the high court under the rules contained in the civil procedure code applicable to appeals. the order made by the lower court is an order made under the powers conferred by section 90. there is some difficulty, however, about the reference to the civil procedure code. the civil procedure code provides for appeals against decrees and specified orders. the order is not one of the specified orders, but it may be looked upon as a decree which is an adjudication of the rights of the parties which is final so far as the court making it is concerned. here the order decides the necessity for the sale in the presence of the reversioner, who is the only party interested in preventing the sale or impeaching it for want of legal necessity. this.....
Judgment:

D. Chatterjee, J.

1. The petitioner, who is a Hindu widow, obtained Letters of Administration to the estate of her deceased husband and applied for permission to sell the dwelling house for the purpose of satisfying debts. She was opposed by the reversioner, who expressed his willingness to pay all just debts and to give her suitable maintenance. She however did not agree as evidently there is some ill-feeling against the reversioner. The learned Judge has given her the permission under Section 90 of the Probate and Administration Act and the reversioner appeals. A preliminary objection is taken that there is no appeal.

2. Section 86 of the Act provides that every order made by a District Judge by virtue of the powers conferred by the Act upon him shall be appealable to the High Court under the rules contained in the Civil Procedure Code applicable to appeals. The order made by the lower Court is an order made under the powers conferred by Section 90. There is some difficulty, however, about the reference to the Civil Procedure Code. The Civil Procedure Code provides for appeals against decrees and specified orders. The order is not one of the specified orders, but it may be looked upon as a decree which is an adjudication of the rights of the parties which is final so far as the Court making it is concerned. Here the order decides the necessity for the sale in the presence of the reversioner, who is the only party interested in preventing the sale or impeaching it for want of legal necessity. This order may, therefore, be looked upon as one analogous to a decree and is, therefore, appealable. An order under Section 90 was held to be appealable, in the case of Uma Charan Das v. Muktakeshi Dasi 28 C. 149 : 5 C.W.N. 443, though on another ground. The objection about the Civil Procedure Code was not made or considered in that case. The respondent relies on the case of Kalimuddin v. Maharani 13 Ind. Cas. 690 : 39 C. 563 : 16 C.W.N. 662 : 15 C.L.J. 382 as laying down a rule to the contrary. This latter case, however, was against an order under Section 79 making an assignment of an administration bond, an order which could have no resemblance to a decree. There is another view of the case that the rules referred to mean that the procedure in the appeals would be as in appeals under the Civil Procedure Code. This view, if literally interpreted, would let in appeals against interlocutory orders and I think it more in accordance with the spirit of the law and the practice of the Court to take the view I have above taken.

3. Then the question is whether the order is right. I think it is not. The reversioner is willing to purchase the property for its proper value. The petitioner says she contracted with a third party to sell the house for Rs. 3,000 and has subsequently by advertisement obtained Rs. 3,500 as the highest offer. I think the best order to make is that the petitioner do sell the house to the reversioner for Rs. 3,500 including the amount deposited by him. The debts found by the Commissioner be paid up and satisfied out of that sum. If any further debts are established in the presence of the reversioner the same will be paid out of the balance. The petitioner may be allowed for her maintenance up to date at the rate of Rs. 10 per mensem from the said sum and the ultimate balance may be invested by the District Judge and the interest paid to the petitioner during her life. What remains at her death by way of investment will belong to the person or persons who may be the reversioner or reversioners at that time. Bach party to pay its own costs in both Courts. The appellant must make up his deposit of the value of Rs. 3,500 inclusive of the deposit already made within three, weeks from this date and also a draft kobala and the costs of stamp and registration to be estimated by the Nazir, The respondent will execute the kobala within three weeks from, the said deposit. The payments to creditors will be made on the completion of the registration. The amount payable to the respondent also will be paid out on the completion of the registration.

4. If the money is not put in as directed, the appeal will stand dismissed with costs, hearing fee three gold mohurs.

5. The Rule is discharged.

Beachcroft, J.

6. Section 86 of the Probate and Administration Act provides that every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeals. This is the only section in the Act which gives a right of appeal or provides for the procedure on appeal, for Section 55, which, it was contended, made the Code of Civil Procedure applicable at all stages of the case, only refers to proceedings in the District Judge's Court. Reading the words of the section by themselves and without the influence of other considerations, I should consider that they meant that there could be an appeal against every order by a District Judge under the Act and that the procedure provided by the Code of Civil Procedure for appeals should apply to such an appeal. If the Legislature intended to allow appeals only in cases in which they are allowed by the Civil Procedure Code, it seems to have adopted a very clumsy method of expressing its intention, for taking that view the section might be paraphrased in this way: there shall be a right of appeal in every case, but there shall not be an appeal in certain cases.'

7. But the view which I have indicated is not the view which has been taken almost uniformly in this Court, as instanced by the cases of Brojo Nath Pal v. Dasmony Dassee 2 C.L.R. 589; Abhiram Dass v. Gopal Dass 17 C. 48; Lucas v. Lucas 20 C. 245; Khettramoni Dasi v. Syama Churn Kundu 21 G. 539; Kalimuddin v. Maharai 13 Ind. Cas. 690 : 39 C. 563 : 16 C.W.N. 662 : 15 C.L.J. 382; Lakhi Narain Shaw v. Dhanada Kumar Ghose 15 Iud. Cas. 686 : 16 C.W.N. 1099 : 17 C.L.J. 230.

8. These cases decide that all the rules of the Civil Procedure Code regarding appeals apply to appeals under the Act. Unless then the order under consideration amounts to a decree it would not be appealable according to the view taken in the cases cited.

9. But against these cases there is a direct authority chat an order under Section 90 of the Act is appealable: the case of Uma Charan Das v. Muktakeshi Dasi 28 C. 149 : 5 C.W.N. 443. It is true that in that case the objection to appeal was based on the meaning of the word 'hereby' and no reference was made to the clause referring to the rules contained in the Code of Civil Procedure. But Maclean, C.J., speaks of Section 86 as allowing an appeal in every case without any qualification, and as the case is a direct authority that an order under Section 90 is appealable, we are bound to follow it, unless we are prepared to refer the question to a Full Bench for decision.

10. Whether, therefore, the order under Section 90 amounts to a decree or not, as to which I express no opinion, we are concluded by authority and it must be held that an Appeal lies.

11. As regards the merits I agree in the order proposed by my learned brother.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //