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Hari Das Minor Through Balak Ram as His Next Friend Vs. Mt. Lachhmi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 19 of 1951
Judge
Reported inAIR1953HP19
ActsHimachal Pradesh (Courts) Order, 1948; ;Code of Civil Procedure (CPC) , 1908 - Sections 110 and 115
AppellantHari Das Minor Through Balak Ram as His Next Friend
RespondentMt. Lachhmi and ors.
Appellant Advocate Amar Chand Sud, Adv.
Respondent Advocate Jaggannath Seth, Adv. for Nos. 1, 2 and 3 and; Man Mohan Nath, Adv.
DispositionAppeal dismissed
Cases ReferredSubramania Aiyar v. Sellammal
Excerpt:
- .....the supreme court. the first variation is that the section of the code speaks of the value of the subject-matter of the suit but the said paragraph of the order, of the value of the suit, a distinction considered in -- 'kishan chand v. lachhmi chand', 54 all 941. that was a case of an application for leave to appeal to the privy council where the value of the suit was less, but that of the property which was the subject-matter of the suit more than the then prescribed limit of rs. 10,000/-. it was held that the condition of the value of the subject-matter of the suit being rs. 10,000/- or upwards was satisfied under section 110 of the code, the result of this difference between the section of the code and the paragraph of the order is that, under the first alternative laid down under.....
Judgment:

Chowdhry, J.C.

1. This is a second appeal by the minor plaintiff Hari Das through his natural father Balak Ram as his next friend. Dhani Ram made a gift of his property to Jiwanu and Moti Ram. A report for mutation of this gift was made by the Patwari on 14-7-1948 and, despite the objection of Balak Ram on behalf of the minor, sanctioned on 2-8-1948. The present suit was then filed against the donor and the donees on .18-6-1949 by the minor, claiming to be an adopted son of the donor Dhani Ram, and alleging the property to be ancestral, for a declaration that the gift is invalid and ineffectual against the interests of the plaintiff. The adoption was alleged to have taken place on 28-1-1946.

2. The plaint mentioned both the Hindu Law and custom. One of the issues framed by the trial Court therefore was: Are the parties governed in the matter of succession and alienation by custom, and if so, what is that custom, and what is its effect on the suit? The matter in respect of which custom had been pleaded was adoption, and therefore the issue was wrong in omitting adoption and mentioning succession and alienation. That is, however, immaterial since in spite of the said mistake the parties produced evidence in regard to adoption. The trial Court came to the conclusion that as no rule of custom prescribing any special ceremonies for adoption different from those laid down by the Hindu Law had been proved, the case must be decided according to the provisions of the Hindu Law. According to the Hindu Law the ceremony of giving and taking was necessary, but there was no evidence to that effect on behalf of the plaintiff. The trial Court held that the oral evidence produced on behalf of the plaintiff was not reliable, but that even if it be held to be reliable the plaintiff had, in the absence of proof of the necessary ceremony of the physical act of giving and receiving, failed to prove that he was the adopted son of Dhani Ram and dismissed the suit. During the pendency of the suit in the trial Court Dhani Ram died and his widow Mt. Lachchmi was brought on the record as his legal representative. She adopted the joint written statement which her husband had filed along with the donees.

3. The plaintiff went up in appeal, but the District Judge dismissed the appeal. He did not go into the question of whether custom or the Hindu Law should govern the case, but held that the suit was liable to dismissal in either case since, if it was governed by the Hindu Law, the plaintiff had failed to prove the essential ceremony of giving and receiving, and, if by custom, he had failed to prove permission of the Koti State which, according to him, was a condition precedent to adoption, in view of the terms of the Wajibularz recording the custom.

4. A preliminary objection was taken by the learned counsel for the defendants-respondents that a second appeal is not competent. This being a land suit, and the lower appellate Court having affirmed the judgment and decree of the trial Court, the relevant provision applicable is para 32(1)(b)(ii) of the Himachal Pradesh (Courts) Order, 1948, which is to the following effect :

1. 'A second appeal shall lie to the Court of the Judicial Commissioner in any of the following cases from an appellate decree of a District Court on any ground which would be a good ground of appeal if the decree had been passed in an original suit, namely :

(b) in a land suit,

(ii) if the value of the suit is one thousand rupees or upwards, or the decree of the District Court involves directly some claim to, or question respecting, property of like value.'

The property in suit being revenue-paying land, the suit was valued at Rs. 800/10/-, that being thirty times the land revenue. The value of the suit therefore falls short of the prescribed limit of Rs. 1,000/- or upwards within the above provision. An affidavit has however been filed in this appeal on behalf of the plaintiff-appellant that the market-value of the land in suit is more than Rs. 1,500/-. Due notice of this affidavit was given to the defendants-respondents, but no objection or counter-affidavit has been filed on their behalf. It may therefore be taken that the market-value of the land in suit exceeds the said prescribed limit. The question for determination therefore is whether the question of maintainability of the present second appeal should be decided on 'the value of the suit being Rs. 1,000/- or upwards' or on 'the decree of the District Court involving directly some claim to, or question respecting, property of like value', these being the two alternatives laid down in the said provision. It was argued by the learned counsel for the plaintiff-appellant that if the value of the suit fell short of the prescribed limit of Rs. 1,000/- or upwards, it was still open to the plaintiff to file a second appeal if the value of the property in suit satisfied that pecuniary condition.

5. The above provision is, except for certain variations which for purposes of the present decision are immaterial, analogous to the provisions of the first two paragraphs of Section 110, Civil P. C., which lay down pecuniary limits for purposes of appeal to the Supreme Court. The first variation is that the section of the Code speaks of the value of the subject-matter of the suit but the said paragraph of the Order, of the value of the suit, a distinction considered in -- 'Kishan Chand v. Lachhmi Chand', 54 All 941. That was a case of an application for leave to appeal to the Privy Council where the value of the suit was less, but that of the property which was the subject-matter of the suit more than the then prescribed limit of Rs. 10,000/-. It was held that the condition of the value of the subject-matter of the suit being Rs. 10,000/- or upwards was satisfied under Section 110 of the Code, The result of this difference between the section of the Code and the paragraph of the Order is that, under the first alternative laid down under the paragraph, it is the value of the suit and not the value of the property which is the subject-matter of the suit that can be taken into consideration. The next variation is that there is no mention in the said paragraph of the Order of the additional condition laid down in the first paragraph of Section 110 of the Code as to the amount or value of the subject-matter in dispute on appeal being the same sum or upwards. This is immaterial for it only means that this additional condition does not arise for consideration under the said provision of the Himachal Pradesh (Courts) Order,' and therefore it may be disregarded. The only other variation is that whereas the second paragraph of Section 110 mentions 'directly or indirectly', the said provision of the Himachal Pradesh (Courts) Order does not contain the word 'indirectly' but only 'directly'. That again is a distinction without a difference for the present purpose of interpretation of the said two alternatives.

6. The two alternatives, as already stated, are the value of the suit being Rs. 1,000/- or upwards, or the decree of the District Court involving directly some claim to, or question respecting, property of like value. And the question for determination is whether, if the first condition is not satisfied, it is still open to the appellant to take the benefit of the second. This is the argument put forward on behalf of the plaintiff-appellant. To subscribe to this view will however have the effect of rendering the first of the above two alternatives nugatory, for the second alternative of the decree of the District Court involving directly some claim to, or question respecting, property of the Value of Rs. 1,000/- or upwards, being wider, will always cover the first one of the value of the suit being Rs. 1,000/- or upwards. The present case is an illustration in point. That was exactly the difficulty felt by their Lordships of the Madras High Court in interpreting the said two corresponding alternative provisions of Section 110 of the Code in -- 'A.V. Subramania Aiyar v. Sellammal', AIR 1916 Madras 985, which is the leading case on the point. That was a case where the value of the subject-matter of the suit was less than the prescribed pecuniary limit but the decree of the High Court wherefrom the party wanted to go up in appeal to the Privy Council involved a claim to property of value exceeding that limit. The party in question therefore wanted to have the benefit of the latter position under the second paragraph of Section 110 of the Code, disregarding the provisions of the first paragraph. He was however not allowed to do so.

In order to understand the observations of their .Lordships it is necessary to set here incidentally that the condition in the first paragraph of Section 110 as to the amount or value of the subject-matter of the suit in the Court of first instance was first introduced by the Privy Council Appeals Act (VI of 1874), and that the alternative contained in the second paragraph of that section already existed under Clause 39 of the Letters Patent. The question of which provision came first had, however, no bearing upon the decision of their Lordships. Wallis C. J., observed as follows :

'It is of course necessary to read the whole section together and to give effect to every part of it; and when doing so it becomes necessary in my opinion in order to give effect to the new provision in the first paragraph to put a restrictive construction on the general words of the second paragraph which are reproduced from Clause 39 of the Letters Patent, and to read them in their present collocation as applying only to cases which involve some claim or question to or respecting property additional to the actual subject-matter in dispute in the appeal and to be taken into account therewith in making up the appealable value. Something might be said for this construction of the alternative provision as it stood in Clause 39 of the Letters Patent, and I think that it is imperatively required in the present Section 110, Civil Procedure Code, which first appeared as Section 5 of the Act of 1874, if the provision in the earlier part of the section is not to be rendered nugatory. Some difficulty is no doubt occasioned by the retention in the second paragraph of the words 'involve directly', but I think my learned brother, in his judgment which I have had the advantage of reading, has shown how effect may be given to the word 'directly' consistently with this construction; and in any case I think that in the section as it now stands, the words, 'involve directly', cannot be read as including cases which involve nothing but the actual subject-matter in dispute in the appeal. Cases which involve nothing else are in my opinion governed exclusively by the first paragraph.'

Discussing the same question Srinivasa Aiyangar J., laid down as follows :

'As to the second point, petitioner contends that, inasmuch as the decree of this Court directs him to surrender possession of the house and pay mesne profits, the decree necessarily involved a claim to property of over the appealable value. This construction renders the whole of the first clause nugatory. It must be remembered that provisions similar to these are to be found in the laws of a large majority of the Colonies (See the table in Surge's Colonial Laws, Volume I, page 362) and it is impossible to construe the second clause of Section 110 of the Code of Civil Procedure so as to render the first perfectly useless. If the second clause stood by itself (See Wheeler's Privy Council Practice, page 694) it would be legitimate to construe it in the manner suggested, as the word 'involves' is sufficiently wide to cover direct adjudications in respect of the subject-matter in dispute. In this case, we have to take both the clauses together so as to give a meaning to both. In my judgment, the first clause applies to cases where the decree awards a particular sum, or property of a particular value, or refuses that relief, (i.e.), to cases where the object-matter in dispute is of a particular value. In fact, the words 'objects in dispute' are used in the provisions relating to appeals from Guernsey. If the operation of the decision is confined only to the particular object-matter, Clause 2 does not apply, and unless the case satisfies the conditions in Clause 1, there is no right of appeal. If the decision beyond awarding relief in respect of the particular object-matter of the suit affects rights in other properties, Clause 2 would apply; also if the matter in dispute is one which is incapable of valuation as in the case of easements, Clause 2 may apply.'

7. The question came up before their Lordships of the Privy Council in connection with a special leave to appeal in -- 'Mangamma v. Mahalakshmamma', AIR 1930 PC 44. The said Madras ruling was approved and in that connection it was observed as follows :

'Their Lordships agree with their reasoning which, indeed, treated the question under the first part of the section as completely clear, but considered whether the second part, 'or the decree or final order must involve', etc., made any difference, and held that it did not, for reasons which commend themselves to their Lordships.'

8. The same question cropped up before their Lordships of the Patna High Court in -- 'Sati Bala Dasi v. Chota Nagpur Banking Association Ltd.', AIR 1949 Pat 448. The application in that case for leave to appeal to the Privy Council arose from a mortgage suit. The amount which was the subject-matter of the suit, i.e., the mortgage loan, was less than Rs. 10,000/-. The intending appellant sought to get over this difficulty of the provisions of the first paragraph of Section 110 of the Code not being satisfied by seeking to ignore those provisions and bringing the case within the provisions of the second paragraph of that section. It was contended that the latter provision was in any case satisfied since the value of the mortgaged property was more than Rs. 10,000-This contention was repelled on the ground that in a mortgage suit the property in dispute is not the property secured but the loan advanced. It was next contended that as the Amount in dispute in the appeal exceeded the limit of Rs. 10,000/- due to its including post litem interest, that should be taken as the value of the property in dispute for the purpose of the second paragraph of Section 110. This contention was also repelled on the ground that if that were the proper construction of the section, the fixed requirement of para one would be rendered nugatory, and the said -- 'Subramania Aiyar v. Sellammal', A. I. R. 1916 Madras 985 ruling was relied upon.

9. The above well-settled view must be adopted for the interpretation of the said corresponding provisions of the Himachal Pradesh (Courts) Order also. The only difference between the two provisions worth noting relates to the first alternative: the section of the Code speaks of the value of the subject-matter of the suit and the paragraph of the Order of the value of the suit. I have already noted this distinction and shown that the only result of this distinction is that in applying the first alternative under the provisions of the Order it is the value of the suit, and not the value of the subject-matter of the suit, that should be taken into consideration. It is also clear that the ratio decidendi of the aforesaid basic Madras ruling (AIR 1916 Mad. 985) did not turn on any such distinction. There has been a good deal of confusion in the matter of the interpretation of the said and corresponding provisions appearing in the Himachal Pradesh (Courts) Order, 1948. It is now laid down that if the operation of the decision is confined only to the particular property which is the subject-matter of the suit, it is the condition of the value of the suit, and not that of the decree appealed against involving directly some claim to, or question respecting, property of like value, which will be the determining factor as regards the maintainability of the appeal. If however, the decision beyond awarding relief in respect of the particular property which is the subject-matter of the suit, affects 'rights in. other properties, or if the matter in dispute is one which is incapable of valuation, the second of the above two alternatives, and not the first, would apply.

10. Applying the above principle to the present case, as the decision does not go beyond awarding relief in respect of the land in suit, there would be no right of second appeal unless the value of the suit is Rs. 1,000/- or upwards, which it is not. I therefore hold that a second appeal is not maintainable, and that this appeal should be heard as a revision.

11. Heard as a revision, however, there is no ground for interference. The trial Court has considered in detail the evidence produced by the parties and arrived at the conclusion that the case must be decided according to the Hindu Law and not according to custom, and that according to the Hindu Law the plaintiff has failed to prove his adoption. The lower appellate Court has agreed with those findings and gone further in holding that even if the case be governed by custom, the plaintiff had failed to prove the permission of the Koti State which in his view was a condition precedent to adoption. The learned counsel for the plaintiff took me through the entire evidence and argued that the aforesaid findings with regard to the applicability of the Hindu Law, the non-performance of the necessary ceremonies and want of permission of the Koti State were erroneous. That would not, however, be any ground for interference in revision, for the mere fact of the Courts below having arrived at erroneous findings of fact or law does not give rise to any question of jurisdiction within the provisions of Para. 35 of the Himachal Pradesh (Courts) Order. From the detailed examination of the evidence, both oral and documentary, it cannot even be said that the Courts below have acted with material irregularity in the exercise of their jurisdiction in the sense of any of the said findings having been arrived at perversely.

It appears from, the said mutation record, filed on behalf of the plaintiff himself, that the objection to mutation by Balak Ram on behalf of the minor was resisted by the donor by contending that he no doubt had an intention of adopting the child but Balak Ram did not agree to it and therefore he gave up the idea of adopting Hari Das. Had the child been really adopted, he should have been found living with his adoptive father, but the only evidence with regard to it on behalf of the plaintiff is that one witness speaks of the child being on visiting terms with Dhani Ram and the other of his having lived with Dhani Ram for the first five or six months only. It is also noteworthy that the application to Koti State for permission to adopt the child was, according to the said mutation record, preferred on 2-10-1945, and that the permission was granted on 28-5-1946. The order of permission has not been filed in this case, and the fact that it was passed on 28-5-1946 appears only in the objection which Balak Ram filed in the mutation proceedings. The lower appellate Court was therefore not unjustified in holding that the permission had not been established. What is noteworthy in this connection is that the adoption is alleged to have taken place on 28-1-1946. According to the entry in the Wajbularz permission of the State for adoption was necessary. That it was so considered by the parties themselves appears from the admission that an application for permission was filed on 2-10-1945. As the plaintiff has failed to prove that the required permission was granted, it is incredible that the adoption should have really been made. Even if it be supposed, that the admission of Balak Ram in the mutation proceedings as to the permission having been granted on 28-5-1946 was correct, it would still be incredible that adoption should have been made in January 1946 before permission to adopt had been accorded by the State. In these circumstances, I am not prepared to hold that the findings arrived at by the Courts below were erroneous, to say nothing of their being perverse.

12. The appeal, now disposed of as a revision, is dismissed with costs, and the judgmentand decree of the lower appellate Court areaffirmed.


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