1. This is an appeal from a judgment and decree of the Chief Judicial Officer, Simla Hill States, dated 5th August 1948, affirming, a judgment and decree of the District Judge, Koti State, dated 17th March 1948, and thereby, to all intents and purposes, decreeing the suit.
2. The plaintiff (who is respondent in this appeal) claimed in his suit a declaration that as a reversionary heir to the last male-holder of the property comprised in the deed of gift executed on 23th May 1941, by the donors, Mat. Karmi and Mt. Malti, widows of one Motia, alienating the property in favour of the defen-dant (appellant in this appeal), He further claimed that the said deed of gift be declared invalid and inoperative and not binding on him.
3. His case was, that on the death of Tulsia, the property was inherited by Parsa and Motia separately. On the death of Motia, his two widows, Mt. Malti and Mt. Karmi, took possession of the estate as limited owners. Parsa dying issueless, his widow, Mt. Sundru took possession of his estate. Amongst these three widows, Mt. Sundru pre-deceased Mt. Malti. On her death, Mt. Malti and Mt. Karmi took possession of the entire estate as limited owners. Mt. Malti and Mt. Karmi executed the alleged deed of gift in favour of the defendant.
4. The plaint further alleged that Mt. Malti had died before the suit and that Mt. Karmi had remarried and for these reasons, the plaintiff is entitled to a declaration that the deed of gift being invalid under the wajib-ul-arz as obtained in Koti State, he be declared the sole owner of the property comprised in the deed of gift.
5. In a written statement, the defendant challenged the validity of the wajib-ul-arz. This written statement contained many defences but it did not include the defence now urged before the Court, namely, that under Section 39, Koti State Courts Act, the suit was incompetent and the trial Judge had no jurisdiction to take cognizance of it.
6. Many issues were settled and tried by the District Judge of Koti State but there was no issue, as it was not pleaded, regarding his jurisdiction to try the suit.
7. After having fully discussed the entire evidence, the trial Judge decreed the suit in favour of the plaintiff, who was, however, declared to be entitled to the property comprised in the deed of gift on the death of Mt. Karmi.
8. An appeal was taken by the appellant to the Chief Judicial Officer, Simla Hill States. Ha agreed with the reasonings of the trial Court and dismissed the appeal and thereby affirmed the judgment of the District Judge, Koti State.
9. Against this judgment and decree, the defendant has appealed to the Judicial Committee.
10. In this appeal, it becomes obvious that there was one crucial point, the decision of which might supersede consideration of any further? point.
11. The learned Counsel for the defendant-appellant has readily conoeded that if this crucial point fails, he is bound by the decision dated 26th April 1949, of the Judicial Committee in the appeal. No. 83 of 1949: Mehar Singh v. Hukmi and Mst. Karmi A.I.R. (36) 1949 Himachal Pradesh 22.
12. In the appeal above mentioned, the present plaintiff had brought a suit for a declaration that a sale-deed executed on 7th April 1942, by Mt. Malti and Mt. Karmi, in favour of one Mehar Singh, should be declared null and void and not binding on him and that he might be given immediate possession of the property comprised in the sale-deed. The decision in that appeal was that the reversionary rights of the plaintiff would take effect immediately and that he would be given possession of the property comprised in the sale, deed and the property no held in possession of Mt. Karmi.
13. As has already been said, upon one point this appeal has been urged, namely, whether the trial Court was competent to take cognizance of the suit.
14. Section 39, Koti State Courts Act enacts as follows:
No Court shall take cognizance,
(a) of any civil suit or criminal complaint against the Ruler,
(b) without prior consent of the Durbar, of any civil suit or complaint, against the direct descendants of the Ruler or of the members of his family dependent upon him.
15. This raises an important question, for it has been contended on behalf of the defendant-appellant that the suit was in reality, though not in form, a suit against one of the members of the Ruler's family dependent upon the Ruler.
16. It is common ground that the appellant is a son of the present Ruler of Koti State. There is evidence on record that two witnesses D.W. 1 and D.W. 2, Chandu and Mathu, have stated that the appellant is the son of the Ruler and the appellant himself, as a witness on his own behalf, has stated that he is the son of the Ruler. There is, therefore, no contention that the appellant is not the son of the Ruler. No question was directed in cross-examination, whether he is a son of the Ruler by his mistress. It has been taken for granted that as a son of the Ruler, he is a member of the Ruler's family and the natural inference is that he is dependent on the Ruler. There is, therefore, no doubt that the appellant is a person as contemplated under Sub-section (b) of Section 39, Koti State Courts Act.
17. It has been argued by the learned Counsel for the respondent that neither in the written statement, nor in the settlement of issues nor in the memorandum of appeal to the Court of the Chief Judicial Officer, has this plea been taken or objection raised regarding the competency of the suit. In the deed of gift as well as in the Jamabandi, the father's name does not appear. The appellant did not take the plea in the trial Court and therefore, it is contended, that he waived the protection afforded by the section. It is further urged that the conduct of the appellant throughout clearly shows that he acquiesced in defending his suit as an individual. Last but not the least, the contention of the learned counsel is that the appellant is estopped from invoking Section 39, Koti State Courts Act in his favour.
18. He refers to a text book of 'The Statute Law by Craies, 1911 edition'. While discussing in chap. II, 'the Acts prescribing or regulating mode of doing something' the learned author observes as follows:
If the object of a Statute is not of general policy or if the thing which is being done with benefit only to a particular person or class of persons, then the conditions prescribed by the Statute are not considered as indispensable. This rule is expressed by maxim of law, Quilibet renunciare potest juri pro se introducto.
19. The plain literal meaning of the maxim is that any one can renounce a right introduced for himself. Accordingly, the learned Counsel argues, a defendant may decline to avail him. self of a defence which would be at law a valid and sufficient answer to the plaintiff's demand and waive his right to insist upon that defence or in other words, any one may waive or re-nounce the benefit of a principle or rule of law that exists only for his protection.
20. In my judgment, although a man may renounce a right or benefit introduced for himself, pro se introductum, he cannot renounce that which has been introduced for the benefit of another. No man can renounce a right of which the claims of society forbid the renunciation. (Per Lord Westbury, Hunt v. Hunt (1861) 31L.J.Ch.161 . For instance, if an action is brought upon a contract, which is shown at the trial to be illegal, the Courts may apply the maxim turpi causa non oritur actio, although the defendant has not pleaded the illegality. The Limitation Act, Section 8 enacts that every suit instituted, appeal presented and application made after the period of limitation prescribed therefor shall be dismissed, although limitation has not been set up as a defence. So also it was held that the lower appellate Court had done wrong in giving effect to an unregistered bond which by reason of its not having been registered was not admissible in evidence (Section 49, Registration Act) even though it was not specifically objected to in either of the. Courts below. Oomatool Fatima v. Ghunnoo Singh 19 W.R.22. In the same manner, a party cannot waive an objection to the jurisdiction of the Court. Jurisdiction cannot be conferred on the Court simply by waiver of objection, if the Court has no inherent jurisdiction, in the matter.
21. Lastly, the maxim does not apply where an express statutory direction enjoins' compliance with forms which it prescribes. For instance, a testator cannot dispense with the observance of formalities essential to the validity of a will. (See Indian Succession Act) nor can an individual waive a matter in which the public have an interest.
22. It is not law that every right may be renounced. The general rule is power of renunciation; but there are two marked classes of exceptions. There can be no renunciation of rights and consequent destruction of relative duties prescribed by an absolute law nor of rights inherent in man as man. A man may renounce a concrete right, but not one resulting from a natural condition.
23. Section 39, Koti State Courts Act is in. tended primarily for the benefit of the Ruler or in other words, for a public purpose. On analogy,. Sections 86 and 87, Civil P.C. are enacted for the public purposes which they serve. Their Lordships of the Privy Council, in Gaekwar Baroda State Railway v. Hafiz Habib-ul-Huq , observed:
Further as already pointed out, the provisions relating to the matter are statutory. They are contained in Sections 86 and 87, Civil P.C., they are imperative and having regard to the public purposes which they serve they cannot, in their Lordships' opinion, be waived in the manner suggested by the High Court.
24. In my opinion, Section 39, Koti State Courts Act involves public interest inasmuch as it is thought desirable that the Ruler and the members of his family dependent upon him should not be sued in Court without the prior consent of the Darbar.
25. I shall now consider the authorities cited at the Bar, which have bearing on the facts of the present case. It will be unreasonable to expect that there will be a ruling on all fours of any Court in India, with the present case. Both the learned Counsel have also realised this shortcoming and therefore, have contented themselves with the rulings from analogous law in India.
26. It appears that Section 80 and Sections 85, 86 and 87, Civil P.C. can upon analogy, be considered to have near resemblance to Section 39, Koti State Courts Act. Under Section 80, Civil P.C.,
No suit shall be instituted against the Crown or against a public officer In respect of any act....until the expiration of two months next after notice in writing has been delivered to, or left at the office of
(a) in the case, of a suit against the Central Government, a Secretary to that Government;
(b) in the case of a suit against the Crown Representative, the Political Secretary;
(c) in a case of a suit against a Provincial Government, a Secretary to that Government or the Collector of the District, and
(d) in the case of a suit against the Secretary of State, a Secretary to the Central Government, the Political Secretary and a Secretary to the Provincial Government of the Province where the suit is instituted,
and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
27. It has been held that the terms of this section are imperative and admit no exceptions or implications (see Bhagchand v. Secretary of State . The latest Privy Council decision in Vellayan Chettiar v. Madras Province A.I.R.1947 P.C.197, On Section 80, Civil P.C. refers to the above case. Their Lordships' observation is as follows:
In Bhagchand's case , no question of waiver arose. The observations of Lord Sumner in delivering the opinion of the Board in that case were directed solely to the construction of the section and cannot in their Lordships' opinion be regarded as deciding that it is not competent for the authority, for whose benefit the right to notice is provided, to waive that right. There is no inconsistency between the propositions that the provisions of the section are mandatory and must be lenreed by the Court and that they may be waived by the authority for whose benefit they are provided. The consideration case relied on was Gaekwar Baroda State Railway v. Hafiz Habib-ul-Haq . There the sections of the code under consideration were Sections 86 and 87, which in effect make the contest of the Governor-General in Council a condition of a suit being brought against a Sovereign Prince and it was held that, that condition could not be waived by the Soverign Prince. But their Lordships would observe that this decision, which related to a cogent by a third party who was not a party to the suit, is riot a governing authority where the only person concerned is himself a party to the suit. The condition, to which Sections 86 and 67 relate is created not, or not merely, for the benefit of the Sovereign Prince, but to serve an important public purpose. It is for that reason that the consent of the Governor-General in Council is required, and for that reason that there can be no waiver of his consent by a Sovereign Prince. On the other hand, there appears to their Lordships to be no reason why the notice required to be given under Section 80, should not be waived if the authority concerned thinks it to waive it. It is for his protection that notice is required: if in the particular case he does not require that protection and says so, he can lawfully waive his right.
28. Where there is question of notice, it is laid down that the notice has to be delivered, at the office of certain secretaries and so on. If no reply is received, and the law does not enjoin that any reply should be given to the notice-there is no reason why the suit cannot proceed. It is for his protection that notice under Section 80, Civil P.C., is required. If in the particular case, to quote the words of the Privy Council, he docs not require that protection and says so, he can lawfully waive his right.
29. Section 86, Civil P.C., enacts:
(1) Any such Prince or Chief, and any ambassador or envoy of a foreign State, may, (in the case of the Ruling Chief of an Indian State with the consent of the Crown representative, certified by the signature of the political Secretary, and in any other case with the consent of the Central Government, certified by the signature of a Secretary to that Government), but not without such consent, be sued in any competent Court.
(2)Such consent may be given with respect to a specified suit or to several specified suits, or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the. Court in which the Prince, Chief, ambassador or envoy may be sued; but it shall not be given unless it appears; to (the consenting authority) that the Prince, Chief, ambassador or envoy:
(a) has instituted a suit in the Court against the person desiring to sue him, or
(b) by himself or another trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immoveable property situate within those limits and is to be sued with reference to such property or for money charged thereon.
(3) No such Prince, Chief, ambassador or envoy shall be arrested under this Code, and, except with (such consent as is mentioned in Sub-section (1), certified as aforesaid, no decree shall be executed against the property of any such Prince, Chief, ambassador or envoy.
(4) The central Government or the Crown Representative as the case may be by notification in the Gazette-of India authorise a Provincial Government and the Secretary to that Government to exercise-with respect to any prince, Chief, ambassador or envoy named in the notification the functions assigned by the foregoing sub-sections to the consenting authority and a certifying officer respectively.
(5)A person may, as a tenant of immoveable property, sue, without such consent as is mentioned in this section, a Prince, Chief, ambassador or envoy from whom he holds or claim to hold the property.
30. Section 87, Civil P.C., is in the following terms:
A sovereign Prince or Billing Chief may sue, and shall he sued, in the name of his State:
Provided that in giving the consent referred to in the foregoing section (The Central Governmant, the Crown Representative or the Provincial Government), as the case may be, may direct that any such Prince or Chief shall be sued in the name of an agent or in any other name.
31. The conditions under Sections 86 and 87, Civil P.C., are quite different. It is not a question of notice but the pre-requisite for a suit is the consent of the Governor-General or the Crown (Representative or the Central Government, as the case may be. Here neither the Governor-General nor the Crown Representative nor the Central Government is a party to the suit.
It is for that reason that the consent of the Governor-General in Council is required and for that reason that there can be no waiver of his consent by a Sovereign Prince.' See Vellayan v. Madras Province A.I.R.1947 P.C.197 .
32. Section 80, Civil P.C., in general and 'Sa, 86 and 87, Civil P.C., in particular bear close analogy to Section 39 of Koti State Courts Act.
33. Section 39 of Koti State Courts Act makes the consent of the Durbar a condition of a suit being brought against any member of his family. This condition could not be waived by the member of his family dependent on him, The section relates to a consent by a third party (the Koti Durbar) who is not a party to the suit. To use the words of the Privy Council, the condition to which Section 39 relates is created not or not merely, for the benefit of the members of his family but to serve an important public purpose.
34. It has been held by their Lordships of the Privy Council in 'Vellayan v. Madras Province' A.I.R.1947 P.C.197, referred to above, that:
The plaintiffs were in error throughout in instituting a suit which Section 80 prohibited, one of the plaintiffs having served no notice as required by law. The respondents were under no duty to them to point out their error. They might have been negligent in their own interest in not raising the plea at an earlier state. But neglience cannot give rise to an estoppel unless there is a duty of care.
35. In the present case in the words of the Privy Council, the respondent was in error throughout in instituting a suit which Section 39, Koti (State Courts Act, prohibited. The appellant was -under no duty to him to point out his error. The appellant might have been negligent in his own interst in not raising the plea at an earlier stage and negligence cannot amount to an estoppel. (Therefore, the plea of waiver, or estoppel or acquiescence fails.
36. Next, the question of jurisdiction is bound up with that of the maintainability of the suit. Evidently, the Court of District. Judge had no jurisdiction. The learned Counsel for the respondent argued that the plea of want of jurisdiction should not be allowed to be raised in the Court of last resort.
37. As regards this point, I shall first refer to the decision of the Privy Council in the classical case of Spooner v. Juddow 4 M.I.A.353. Their Lordships observed:
Want of jurisdiction, not pleaded but facts showing, want of jurisdiction exist, the Court cannot proceed to try the Suit.
38. The learned Counsel relied upon the authority of Jan Mohammad v. Karam Chand A.I.R.1917 P.C.99. In that case, the opinion of their Lordships of the Privy Council was that
the point that the mortgagee held the new lease as part of the mortgaged property for the benefit of those interested in the original lease could not be taken in appeal before the Privy Council as it was neither pleaded nor argued in the Court below.
39. In my opinion, this decision is distinguish, able. There it was a case where a new point was taken with regard not to the jurisdiction of the Court but to the subject-matter of the suit. Thein Lordships of the Privy Council held in Raja Balwant Singh v. Secretary of State 30 I.A.172 that
new point as to jurisdiction, not involving new facts could be taken in the Court of the last resort.Further:
A plea of want of jurisdiction though abandoned in one Court can be raised in the higher Court, vide Bansi Lal v. Ghulam .And the same view found expression in the decision of their Lordships of the Privy Council in Nawab Khwaja Asanullah v. Hari Charan 19 I.A.191 , and last but not the least in Ram Lal v. Krishna Chandra A.I.R.1924 P.C.95, in which the points urged before their Lordships of the Privy Council were five in number but the first point was 'absence of previous sanction by the Commissioner.' It was observed by their Lordships that:If it was any other point except the point of jurisdiction, they would pay no attention to it but they were bound to take notice of an objection to the jurisdiction, however, late in the day it might be raised, it it be that on the facts admitted or proved, it is manifest that there was a defect of jurisdiction.
40. In my opinion, the statutory condition was inserted not only for the protection of the Ruler and the members of his family but also for the benefit of the parties to action. In this connection, I may refer to a decision of a Privy Council regarding the interpretation of Statute. Though it is not a decision that directly concerns India it is a decision of Privy Council that is entitled to great respect. In Westralian Powell Wood Process Ltd. v.Regem A.I.R.1921 P.C.228 , their Lordships discussed this matter and declared that
for public policy, certain terms of the Statute are to be interpreted strictly and further that the interpretation of the Statute may be allowed to be raised though it was not urged in the lower Courta.
41. Lastly, I wish to refer to a Privy Council decision, which was cited at the Bar, Chung Chi Cheung v. the King A.I.R.1939 .P.C.69. It was an appeal from Hongkong. The learned Counsel for the plaintiff took his stand upon this decision that the jurisdiction could be waived.
42. I may state at once that the foundation of that appeal, was a question of International Law. As observed by their Lordships, 'a nation can waive its right which the International Law provides.' The relation between a Ruler and his subject is not governed by the International Law but by the law of the land. In my judgment, the above decision does not assist the respondent.
43. In view of the decisions discussed above, I am of opinion that the District Judge of Koti State had no jurisdiction to take cognisance of the suit without the prior consent of the Durbar.
44. Upon one point this appeal has been urged and upon this point, this appeal succeeds. Though it is a point not taken at any stage of the proceedings in either of the Courts below, I am supported by the decisions of the Privy Council, stated above, that the point is such that can be taken in the Court of last resort.
45. It does not become necessary then to consider the other points urged by the learned Counsel for the appellant.
46. In consequence, the appeal is allowed and I shall advice the Chief Commissioner to set aside the judgment and decree of the Chief Judicial Officer, Simla Hill States and also the judgment and decree of the District Judge, Koti State, and dismiss the suit on the ground that it was not competently brought.
47. In the special circumstances of the case, I shall advise the Chief Commissioner to make no order as to costs of this appeal here and in the Courts below.
48. In conclusion, I wish to record my appreciation for the assistance rendered by the learned Counsel on both sides, in elucidating important points regarding the interpretation of a Statute and application of law, in relation to the jurisdiction of Courts.