Hugh Walmsley, J.
1. The appeal preferred by the plaintiff was dismissed for reasons which need, not be stated, and we are now concerned only with the defendant's cross-objection.
2. The necessary facts are as follows. There were two brothers Prasanna Nath Rai and Bhabani Nath Rai. The former 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 Tara Nath Rai 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 Tara Nath from the property comprised in the deed of gift.
4. Tara Nath 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 Shyam-rangini executed the deed of relinquishment voluntarily and with full understanding of its effect, and that she intended it to operate in regard to all the property including that given to Tara Nath Rai. With regard to that gift he held that it was not bona 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 Tara Nath 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 bona 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 worth 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'. The deed of gift in favour of Tara Nath Rai 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 goes to the length of saying that she can do so where prior dispositions have created interesls in third persons. The effect of adoption has been considered on several occasions, in Madras and Bombay, but I do 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 relevance is to be found in the case of Kottapalli Subbamma v. Jatavallabhula Subrahmanyam 32 Ind. Cas. 813 : 39 M. 1035 : 30 M.L.J. 260. 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 re-call it by a voluntary act, which only by fiction has the same effect as her actual death would have.
12. There are two other points to be noticed in this case. The first is that the learned Judge has held that the sale and lease 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.
13. 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.
14. 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.
15. About the year 1880 one Prasanna Nath Roy died intestate leaving as his heir 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 8 or 9 years old, and for about 10 years there after she lived under the guardianship of Bhabani. After reaching her majority Shyamrangini obtained possession of her husband's property and on the 26th 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 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 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 inhexited from my husband and over and above that in any other property, unknown to me which might have belonged to my husband. And 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 realisable therefrom. On the strength of this deed of release you will from this day own and possess in absolute right my husband's share in the properties described in the under-mentioned 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.'
16. It is to be observed that in the schedule to this deed of relinquishment no mention p made of the jote and occupancy rights in the land and premises which Were 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 Shyamrangini, 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 a 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 Schedule (kha and ga) together with the house etc., 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 on 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 waislat 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.
17. 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 1919. On the 22nd December 1921 a decree was passed in 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 thereafter' and 'the plaintiff do get Rs. 50 in respect of mesne profits of the land in Schedule (ga)',
18. 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.
19. The validity of the deed of gift end 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 bona 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.
20. 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 bona 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 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.). 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. 3,000 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 Shamipada, she wrote that 'Bhabani has amply repaid me for the trust I reposed in him in giving tip the property'. 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 explained to her; that she herself had taken the draft to a Pleaded Radha Bulluv, 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 have 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 moveable properties which she had inherited, from her husband, and for the purposes of this appeal it must be taken that no such moveables were in existence, at any rate at the time when the deed of relinquishment was executed.
21. In these circumstances an important question falls for determination, namely, whether Bhabani, the heir presumptive of Shyamrangini's husband, is entitled to have deed of gift to Taranath set aside during the lifetime of Shyamrangini.
22. 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 by Hindu sages. For that reason, therefore, it is 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 Kolitani 7 I.A. 115 at p. 119 : 5 C. 776 : 6 C.L.R. 322 : 4 Sar. P.C.J. 103 : 3 Suth. P.C.J. 765 : 4 Ind. Jur. 363 : 3 Shome L.R. 198 : 2 Ind. Dec. (N.S.) 1102 (P.C.). Mr. Justice Dwarkanath Mitter observed:
We think it scarcely necessary to remark that the estate of a widow under the Hindu Law 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 Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 500 : 2 W.R.P.C. 59 : 1 Suth. P.C.J. 417 : 1 Sar. P.C.J. 752 : 19 E.R. 620. It is true that the widow is allowed to succeed to the estate of her deceased husband as his 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 within certain denned limits, beyond which she has no power to go; nor is it allowed to descend 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.
23. The Judicial Committee did not affect to impugn the accuracy of the above exposition of the general position of Hindu widows according to Hindu. Law and usage, although Sir Barnes Peacock in delivering the judgment of the Privy Council in this case differed from Mitter, J., in thinking that a Hindu widow held the property which she had inherited from her husband as trustee. The correct view as Lord Dunedin observed in Rangasami's case 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.) 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 of the question, become entangled in western notions of what a holder of one or other of these estates might do.' 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 wile 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'. So Vishnu ordains 'the wealth of him who leaves no male issue goes to his wife'. 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'. Thus Vrihat Menu says 'The widow of a childless man, keeping unsullied her husband's bed and persevering in religious observance shall present his funeral oblation and obtain (his) entire share'. 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'. 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 palms 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 venerables 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'. Again Jimuta Vahana expounds the law as follows:
56. 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. 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.'
57. 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, make a gift, mortgage or sale of it at her pleasure.
58. Nor shall the heirs 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).
59. 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 would 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.
24. Dwarkanath Mitter, J., passed the following comment upon the law as laid down by these sages:
It would 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 precautions appear 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 kins are the guardians of his childless widow. In the disposal of property and care of her person as well as in her maintenance, they have full power.' The authority of the text is distinctly recognised in the Dayabhaga, which says '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', Dayabhaga Chapter xi, Section 1, Verse 64.
25. A Hindu widow does not possess a life-estate in the property which she has inherited, from her husband for during her lifetime 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 to 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 supported on the ground of necessity, then, if such necessity is not proved aliunde, and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners as mighti fairly be expected to be interested to quarrel with the transaction will beheld to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one'. Per Lord Dunedin in Rangasami's case 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.). See also Debi Prosad Chowdhury v. Golap Bhagat 19 Ind. Cas. 273 : 40 C. 721 : 17 C.W.N. 701 : 17 C.L.J. 499.
26. 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 all 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 71 A. 115 at p. 119 : 5 C. 776 : 6 C.L.R. 322 : 4 Sar. P.C.J. 103 : 3 Suth. P.C.J. 765 : 4 Ind. Jur. 363 : 3 Shome L.R. 198 : 2 Ind. Dec. (N.S.) 1102 (P.C.). Further, as between the widow and the assignee such alienations of 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. Per Lord Davey in Bijoy Gopal Mukerjee v. Krishna Mahishi Debi 34 C. 329 at p. 333 : 11 C.W.N. 424 : 5 C.L.J. 334 : 9 Bom. L.R. 602 : 2 M.L.T. 133 : 17 M.L.J. 154 : 4 A.L.J. 329 : 34 I.A. 87 (P.C.):
A Hindu widow is not a tenant for life but is 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 agaiust 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 defendants 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.
27. During the continuance of the widow's estate the person or persons entitled to a reversionary interest in the husband's estate upon the determination of the widow's interest, 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. Per Lord Shaw in Janaki Ammal v. Narayanasami Aiyer 37 Ind. Cas. 161 : 39 M. 634 at p. 638 : 20 M.L.T. 168 : 31 M.L.J. 225 : 14 A.L.J. 997 : (1916) 2 M.W.N. 188 : 20 C.W.N. 1323 : 18 Bom. L.R. 856 : 24 C.L.J. 309 : 4 L.W. 530 : 43 I.A. 207 (P.C.).
A reversionary heir, although having only those contingent interests which are differentiated little, if at all from a spes successionis, is recognised by Court 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.
But a reversionary heir thus appealing to the Court truly for the conservation ana just administration of the property does so in a representative capacity, so that the corpus of the estate may pass unimpaired to those entitled to the reversion. The law on this subject was recently expounded in the judgment of this Board delivered by Mr. Ameer Ali in Venkatanarayana Pillay v. Subbammal 29 Ind. Cas. 298 : 38 M. 406 : 42 I.A. 125 : 2 L.W. 596 : (1915) M.W.N. 555 : 19 C.W.N. 641 : 28 M.L.J. 535 : 17 M.L.T. 435 : 21 C.L.J. 515 : 17 Bom. L.R. 468 (P.C.).
This representation is in law founded upon a different set of considerations from those which would seek to stamp the character of reversionary heir upon one individual. The latter operation attempted during the enjoyment of the life estates would necessarily be premature, and might, as stated, be futile. The former is justified by the considerations of keeping the estate intact for the persons to whom as reversioners it shall ultimately and at the proper time be determined that the estate shall go
28. See, also, Balbhadra v. Bhowani 34 C. 853 : 11 C.W.N. 956 : 6 C.L.J. 233, Isri Dutt Koer v. Hansbutti Koerain 10 C. 324 : 10 I.A. 150 : 13 C.L.R. 418 : 7 Ind. Jur. 557 : 4 Sar. P.C.J. 459 : 5 Ind. Dec. (N.S.) 217 (P.C.), Ram Pershad Chowdry Jokhoo Roy 10 C. 1003 : 9 Ind. Jur. 149 : 5 Ind. Dec. (N.S.) 669 and Munnalal Chaodri v. Gajraj Singh 17 C. 246 : 13 Ind. Jur. 413 : 5 Sar. P.C.J. 452 : 8 Ind. Dec. (N.S.) 702 (P.C.).
29. It follows, therefore, according to the principles of Hindu Law that a widow is impotent suo motu to affect the reversionary interests in her husband's estate by unauthorised alienations. The learned Vakil for the appellants, however, upon the assumption (contrary to his contention) that the deed of relinquishment put an end to Shyamrangini's estate as a Hindu widow, urged that Bhabani was not entitled to impugn the deed of gift to Taranath during the lifetime of Shyamrangini. In support of his contention he relied upon the judgment of the Madras High Court in Kotta Palli Subbamma v. Jatavallabhula Subramanyam 32 Ind. Cas. 813 : 39 M. 1035 : 30 M.L.J. 260. In that case the plaintiff sued to recover the amount due on a mortgage-bond executed by a Hindu widow. It appears that during the pendency of the suit the widow had executed a deed of relinquishment in favour of the next heir. 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 pendentelite, 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. Narasimha Rao wishes that they should be extended, namely, so as to defeat the claims of alienees for value who as Sir Bhashyam Ayyanger said in Sreeramulu v. Kristamma 26 M. 143 : 12 M.L.J. 197 were entitled to be protected in their reasonable expectation that they obtain a transfer valid for the widow's life except in the rare case of re-marriage.' Napier, J., added that 'the theory that change of status of an assignor or a surrender bysuch assignor rare 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.' 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 re-marriage', recover possession of any portion of has adoptive father's estate which she migmt 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 lifetime, 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 property which will come into his possession only after the lifetime of the adopting widow--provided such property had not been alienated for a necessary purpose.
30. In my opinion, the ratio decidendi of these two cases in substance was the same, namely, that during the lifetime, or widowhood of the widow unauthorized 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 in-herits from her husband an estate foy a term which is co-terminus with hervlife-time or, at any rate, with her widowhood, (2) that while she is in the enjoyment of the estate a Hindu widow has absolute power to alienate the property or any part thereof for a term which does not exceed the period of her lifetime 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 contest 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. Per Lord Morris in Behari Lal v. Madho Lal Ahir Gayawal 19 C. 236 at p. 241 : 19 I.A. 30 : 6 Sar. P.C.J. 88 : 9 Ind. Dec. (N.S.) 603 (P.C.): '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.' Per Lord Dunedin in Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.):
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 decision 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.
31. 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 absolute or unfettered is--rigidly limited and restricted in 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 of 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 and equity ought 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,1 aware of the restricted power of alienation. which a Hindu widow possesses. In this controversy an argumentum ab inconvenitntv 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 Law from the; standpoint of Western idealism of which Lord Dunedin gave the warning to which I have alluded. See also per Lord Gifford in Cossinaut Bysack v. Hurroosoondry Dossee 2 Morley's Digest 198 : 3 Ind. Dec. (O.S.) 907, and Khub Lal Singh v. Ajodhya Misser 31 Ind. Cas. 433 : 43 C. 574 : 22 C.L.J. 345. 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 of the-Hindu community generally to enlarge thtf powers of alienation possessed by a Hindu widow. Of course, it may 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.' Per Lord Dunedin in Rangasami's case 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.). 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 unauthorized, and, in my opinion, each and every alienation for purposes not permitted by the Hindu Law are to be treated as in pari materia. The reasoning upon which the decision in those cases was based has been rejected by the Bombay High; Court Ram Krishna v. Tripurabai 1 Ind. Cas. 647 : 33 B. 88 : 10 Bom. L.R. 1029. 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.
32. 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 co 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.
33. 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 confirmed. 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 sale, and by causing mutation of your name in place of mine in the sherista of the zamindar. 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'. 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 Walmsley'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.
34. [Arguments as to the result of the difference of opinion were heard on the 12th and 16th June 1925 and judgment was delivered on the 8th July 1925.]
35. 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 36 of the Letters Patent or the rule of affirmance contained in Section 98 of the C.P.C.
36. 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 Bechram Choudhuri v. Puran Chandra Chatteyi 88 Ind. Cas. 637 : 29 C.W.N. 755 : 41 C.L.J. 456 : (1925) A.I.R. (C) 845 : 52 C. 894, 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.
37. 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 Lordships of the Privy Council in the case of Bhaidas Shivdas v. Bai Gulab 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.). But for that judgment, I should without hesitation have followed the directions of Section 98, C.P.C., for I am satisfied that since 1884 when the Full Bench delivered judgment in the case of Gossami Sri Sri Gridharji Maharaj Tickait v. Purushotum Gossami 10 C. 814 : 5 Ind. Dec. (N.S.) 545, 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.
38. 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 the original jurisdiction and those arising in appeals from subordinate Courts.
39. 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 C.P.C. 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 to a different set of facts, or by laying emphasis on the words 'in this instance'. Again their Lordships' choice of Nundeeput Mahta v. Alexander Shaw Urquhart 13 W.R. 209 : 4 B.L.R.A.C. 181, as an illustration seemed to me a source of grave difficulty, for that, was an appeal from the mufassil, 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, C.J., are different.
40. 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.
41. In the first place Nandeeputs' case 13 W.R. 209 : 4 B.L.R.A.C. 181, was quoted only as an illustration of a fact, and I ought not regard the reference to it by way of illustration as endorsing by implication the reasoning on which the judgment was founded.
42. 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. It is abundantly clear that the Legislature had no intention of going back on the method established by the Codes of 1877 and 1882 when the present Code was introduced, and if the terms of Section 4 have that effect it is an accident.
43. 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 the Court while those of the other class are from subordinate Courts. The distinction is important because the C.P.C. makes no mention of the one while contains elaborate rules for the other. Coupled with this is the necessity of attaching some meaning to the words of Section 98, C.P.C. for in this Province at any rate they are superfluous unless they refer to Divisional Benches of this Court.
44. I have also studied the decision of the Bombay High Court in the case of Bhuta Jayatsing v. Lakadu Dhansing 50 Ind. Cas. 715 : 43 B. 433 : 21 Bom. L.R. 157, The judgment was delivered before the decision in Bhaidas' case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), but it is of value because the possible effect of Section 4 was present to the minds of the learned Judges.
45. 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 C.P.C, and that the decision in Bhaidas's case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), must be taken to refer only to that class of appeals to which it expressly relates.
46. A decree will now be drawn up in accordance with the judgment of my learned brother Mr. Justice Page. The hearing-fee in this Court is assessed at 6 gold mohurs.
47. Owing to the difference of opinion which has arisen between my brother Walmsley 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 C.P.C., 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:
(1) What was the law in force at the time of the enactment of the C.P.C., (Act V of 1908)?
(2) Was the law then in force repealed by Section 4 of the said Act?
48. Upon the creation of the High Court at Fort William in Bengal, pursuant to (24 &. 25 Vict. C.104, 28 Vict. C. 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 Sudder Dewani Adalut. Now, in the case of an appeal to the Sudder Dewani Adalut, it was provided by Section 23 of Act XIII of 1881 that 'if an appeal lies to the Sudder Court, it shall be heard and determined 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 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 several Judges and shall be determined according to the opinion of the majority of the Judges of the Sudder Court by whom the appeal is heard.' 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 Judicaturs,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 the case they shall be equally divided, the Chief Justice, or in his absence the Senior Judge present shall have a double or casting vote.' 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 their 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 opinion of the Senior Judge shall prevail.' 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 C.P.C., (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. Shahazadee Hazara Begum v. Khaja Hussein Ali Khan 4 B.L.R. 86 : 12 W.R. 498 : Nundeeput Mahta v. Alexander Shaw Urquhuart 13 W.R. 209 : 4 B.L.R.A.C. 181. 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 20th March 1877 the C.P.C., (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 heard the appeal, including those who first heard it. When 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.
49. The provisions of Act X of 1877 relating to, appeals are reproduced in the C.P.C. of 1882 (Act XIV of 1882), and the terms of Section 575 are similar to those of Section 98 of the C.P.C. 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 C.P.C., 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 Sudder Court, when an Appellate Court of two Judges differ upon a question of fact, and one of the Judges agrees with the Court below, the judgment of the Court below is to 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 is a very good rule in respect to original business it is not satisfactory as applied to appellate business. The result of it is that the plaintiff may have a great preponderance of the 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 connexion 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 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. 1 must confess that in our Bill No. 3 we left that matter in a rather unsatisfactory position, for we copied too faithfully both the Code and the Charters, and the result was that we had introduced two conflicting principles. However, we found out our error and we have now adopted the principle which will be found embodied in Section 575 of Bill No. IV.
50. It is, I think, clear beyond all doubt or controversy that passing Section 575 of the C.P.C., of 1877 the Legislature intended to substitute in all appeals to which the provisions of Section 575 could reasonably apply the rule laid down in Section 575 for the rule in, Clause 36 which was then in force:
It is quite plain that these provisions creat a totaly 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.' Per Lord Buckmaster in Bhaidas Shivdas v. Bai Gulab 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), 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 they cannot stand together, and the earlier enactment protanto must be deemed to have been repealed by the later one. Thomas Conservators v. Hall (1868) 3 C.P. 415 : 37 L.J.C.P. 163 : 18 L.T. 364 : 16 W.R. 971, and Probhat Chandra Barua v. Emperor 84 Ind. Cas. 31 : 51 C. 504 : (1924) A.I.R. (C) 668. 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 C.P.C., of 1877 and 1882, however, the Small Cause Courts are excluded expressly from the ambit of the appeal sections of these Codes, (see. also Sections 7 and 8 and Os.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 kuow 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 1908. 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(b) Order XLIX(3) of the Code of 1908 and Chappan v. Moidin Kutti 22 M. 68 : 8 M.L.J. 231 : 8 Ind. Dec. (N.S.) 49, 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 must 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. Collector of Muzaffarnagar 11 A. 176 at p. 182 : A.W.N. (1889) 27 : 13 Ind. Jur. 316 : 6 Ind. Dec. (N.S.) 540, where his Lordship observed:
I am of opinion that Section 27 of our Letters Patent is superseded in those cases only to which Section 575 of the C.P.C., properly, and without straining language, applied.
51. 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 Bhivrav v. Shivlal Khubchand 3 B. 204 : 2 Ind. Dec. (N.S.) 137, was decided by Westropp, C.J., and Melville and West, JJ., in the Bombay High Court see also Shahzadee Begum's case 4 B.L.R. 86 : 12 W.R. 498, Narainasami Reddi v. Osuru Reddi 25 M. 548, and the cases cited in the judgment of Suhrawardy, J., in Becharam v. Purna 88 Ind. Cas. 637 : 29 C.W.N. 755 : 41 C.L.J. 456 : (1925) A.I.R. (C) 845 : 52 C. 894. Indeed, in Gosami Sri Sri Gridharji Maharaj Tikait v. Purushotam Gossami 10 C. 814 : 5 Ind. Dec. (N.S.) 545, 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 Full Bench of the Calcutta High Court, consisting of Garth, C.J., Mitter, McDonnell, Prinsep and Wilson, J., 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 3 B. 204 : 2 Ind. Dec. (N.S.) 137, that the effect of Section 575 of the Code is to supersede the provisions 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.
52. 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. Kali Sunderi Debi 9 C. 482 : 10 I.A. 4 : 12 C.L.R. 511 : 7 Ind. Jur. 161 : 4 Sar. P.C.J. 406 : 4 Ind. Dec. (N.S.) 970 (P.C.), 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 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 (a) upon the language of Section 540 and kindred sections of the Code, and partly (b) 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 to 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 Kings 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 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 diminution 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, it 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 Cheti v. Narayanasami Chetti 25 M. 555 at p. 558 : 11 M.L.J. 346 the Madras High Court held that 'Both Section 540 of the C.P.C. relating to appeals from original decrees and Sections 588 and 591 relating to appeals from orders provide fof 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 C.P.C. relating to appeals from one Court to another.' See also Chappan's case 22 M. 68 : 8 M.L.J. 231 : 8 Ind. Dec. (N.S.) 49. Sesha Ayyar v. Nagarathna Lala 27 M. 121, Debendra Nath Das v. Bibudhendra Mansingh 33 Ind. Cas. 745 : 43 C. 90, and Toolsee Money Dassee v. Sudevi Dassee 26 C. 361 : 3 C.W.N. 347 : 13 Ind. Dec. (N.S.) 834. 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 60 Ind. Cas. 274 : 48 I.A. 76 : 40 M.L.J. 308 : (1921) M.W.N. 159 : 19 A.L.J. 281 : 33 C.L.J. 307 : 25 C.W.N. 557 : 23 Bom. L.R. 681 : 48 C. 481 : 14 L.W. 362 : 3 U.P.L.R. (P.C.) 57 (P.C.), 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 these 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 matters 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 the powers relating to the exercise of original civil jurisdiction to which the Code is not to apply'. The question to be determined is whether the particular provisions of the Code under consideration in each case extend to the ordinary civil jurisdiction of the High Court. For example, in Mathura Sundari Dassi v. Haran Chandra Shaha 34 Ind. Cas. 634 : 43 C. 857 at p. 866 : 20 C.W.N. 594 : 23 C.L.J. 443. Sanderson, C.J., held in the circumstances obtaining in the case, namely, where a suit was dismissed under Order IX, Section 8 of the C.P.C. that the Code of 1908 gave right of appeal from a Judge exercising original civil jurisdiction of the High Court to the Court on appeal and that the provisions of the Code applied to such an appeal:
By the terms of Section 117, the Code is made applicable to the High Court, and Order XLIII, Rule 1, gives a right of appeal is the very, case under discussion. But it is said that this. Code and the rules made under it do not apply to an appeal from a learned Judge of the High Court. I cannot follow that argument. It is part of the defendants case that Order IX, Rule 8 applies. That order is in effect a part of the C.P.C. It seems to me strange that the plaintiff should be subjected to Order IX Rule 8 and be liable to have his suit dismissed for want of appearance, yet when he has had his suit dismissed under one of the rules of the Code and wants to call in aid another of the rules which, when his application for re-instatement has been refused, gives him a right of appeal against that refusal, he is met with the argument that he cannot call in aid that rule because there is no appeal from the learned Judge of the High Court under the C.P.C. I think this is not a true view or a reasonable construction to p at upon the Code and the rules made under it. In my judgment, the Code and the rules do apply and the plaintiff has a right of appeal.
53. 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 Hayward, J., in Bhuta, Jayatsingh v. Lakadu Dhan Singh 50 Ind. Cas. 715 : 43 B. 433 : 21 Bom. L.R. 157. On the otherhand in Tulsimoney Dasee v. Sudevi Dassee 26 C. 361 : 3 C.W.N. 347 : 13 Ind. Dec. (N.S.) 834. Ameer Ali, J., expressing a view against the extension of Section 575 observed:
In my opinion Section 588 of the C.P.C. applies only to orders made by subordinate Court, which derive their powers from the Code. The C.P.C. 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 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 indicates to my mind that the preceding section was applicable only to the orders, of subordinate, Courts.' Again in Debendra Nath Das v. Bibhudhendra Mansingh 33 Ind. Cas. 745 : 43 C. 90 Jenkins,C.J., stated:
The Code makes no provision for ari 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 36, Letters Patent).
54. Accordingly it was held in Chappans case 22 M. 68 : 8 M.L.J. 231 : 8 Ind. Dec. (N.S.) 49, Sabhapetty Chetti's case 25 M. 555 at p. 558 : 11 M.L.J. 346, Sesha Ayyars case 27 M. 121, Boop Laul v. Lakshmi Das 29 M. 1, Lachman Singh v. Ram Lagan Singh 26 A. 10 A.W.N. (1903) 162, Surajmal Horniman 47 Ind. Cas. 449 : 20 Bom. L.R. 185, Bhutta Jagatsingh's case 50 Ind. Cas. 715 : 43 B. 433 : 21 Bom. L.R. 157, (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 C.P.C. Amendment Act (XII of 1895 and which was re-enacted in Section 129 of the Code of 1908), that the procedure of Section 36 remained unrepealed and in forcfe 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 C.P.C. 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. 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 (1) 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 of procedure prescribed by or under any other law for.the time being in force.
55. 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 should be put upon Section 4 is plain, for Mr. 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 such as they are in the present Code.
56. Moreover, since the Code of 1908 was passed the Courts in India consistently have held that the law then in force wras not repealed by Section 4 of 1902, 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' case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), 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' case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), 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 taken was to refer the matter to two other Judges, Batchelor and Shah, JJ., who also decided adversely to the plaintiff's contention.The plaintiff has now brought a.n appeal before His Majesty in Council, and the first point that he 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. Bhaidas'case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.).
57. It is to be observed that Scott, C.J., and Heaton, J., in Bhuta Jyatsingh's case 50 Ind. Cas. 715 : 43 B. 433 : 21 Bom. L.R. 157 while the proceedings in Bhaidas' case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), were pending, took a contrary view, and expressed the opinion that Clause 36 of the Letters Patent applied to an oppeal frorh a Judge exercising original civil jurisdiction. Lord Buckmaster in Bhaidas' case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), 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 he is 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 Roop Laul v. Lakshmi Das 29 M. 1, Lachman Singh v. Ram Lagan Singh 26 A. 10 : A.W.N. (1903) 162, and Nundeeput Mahta v. Alexander Shaw Urquhart 10 C. 814 : 5 Ind. Dec. (N.S.) 545
58. 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 on 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 is equally plain, as I apprehend the matter, that the provisions of the Code of 1882 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' case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), was from a Judge of the High Court exercising ordinary 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 Buck-master 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.
59. 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 Buck-mastei referred do not warrant such a supposition; Rooplaul's case 29 M. 1 being an appeal from a Judge of the High Court; exercising original civil jurisdiction Luchman's case 26 A. 10 : A.W.N. (1903) 162 an appeal from a single Judge of the High Court sitting as a Divisional Bench; while in Nundiput's case 13 W.R. 209 : 4 B.L.R.A.C. 181, 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 was addressed, to their Lordships relating to the law in force in 1908 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 long 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 subject; much less would they have couched their decision in terms such as those which they employed. For these reasons I hold that the judgment in Bhaidas' case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), is limited to appeals from Judges of the High Court exercising ordinary civil jurisdiction to the Court on appeal (such as the appeal which they were called xipon to determine), arid is not to be taken as deciding that the law relating to appeals from subordinete 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 of 1908. Since Bhaidas' case 60 Ind. Cas. 822 : 45 B. 718 : 40 M.L.J. 519 : 25 C.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409 : 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 (P.C.), 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 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 judgment of the Judicial Committee. In Suresh Chandra Mukerji v. Shitekanta Banerjee 78 Ind. Cas. 679 : 28 C.W.N. 637 : 51 C. 669 : (1924) A.I.R. (C.) 855. Newbould, B.B. Ghose, JJ., and I expressed the opinion that Section 36 extended to differences of opinion in first appeals from a Mofusil Court to the High Court. But in that case the opinion of the Court was merely obiter; no argument I think 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 brother Walmsley and myself in this appeal, and I agree that the appeal should be dismissed with costs.