Full Judgment Text
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PETITIONER:
DAJISAHEB MANE AND OTHERS
Vs.
RESPONDENT:
SHANKAR RAO VITHAL RAO MANEAND ANOTHER.
DATE OF JUDGMENT:
11/10/1955
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
DAS, SUDHI RANJAN
BOSE, VIVIAN
JAGANNADHADAS, B.
IMAM, SYED JAFFER
CITATION:
1956 AIR 29 1955 SCR (2) 872
ACT:
Constitution of India-Arts. 133 and 135-Decree of lower
court in respect of properties of the value of more than Rs.
10,000 but below Rs. 20,000-Reversed by the High Court on 8-
11-1949-High Court granted leave to appeal on 1-10-1951-
Appeal to the Supreme Court -Whether competent-Word
"exercisable" in Art. 135-Construction of.
HEADNOTE:
This appeal to the Supreme Court was from a reversing decree
of the Bombay High Court in a suit for possession of certain
immovable properties. The suit was dismissed by the trial
court on 20-12-1946, the value of properties being found to
be over Rs. 10,000. The decree of the High Court allowing
the plaintiff’s claim was passed on the 8th November 1949.
The defendants applied to the High Court for leave to appeal
to the Federal Court on 6-1-1950 which was granted on 1-10-
1951.
One of the questions for determination was whether Art. 133
of the Constitution applied to the case and the appeal was
competent to the Supreme Court.
Held, that Art. 133 did not apply as it relates expressly to
appeals against any judgment, decree or final order in a
civil proceeding of a High Court in the "territory of
India".
Held further that on the date of the decree of the High
Court, the defendants had a vested right of appeal to the
Federal Court as the properties were of the requisite value
and on 6-1-1950 a certificate of leave to appeal was bound
to be granted.
Held also that the appeal was competent to the Supreme Court
by virtue of the provisions of Art. 135 of the Constitution
as the jurisdiction and powers in relation to the matter in
dispute were exercisable by the Federal Court immediately
before the commencement of the Constitution under an
existing law inasmuch as the Federal Court had jurisdiction
to entertain and hear appeals from a decree of a High Court
which reversed the lower court’s decree as regards
properties of the value of more than Rs. 10,000.
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The construction contended for by the respondent that the
jurisdiction was exercisable under Art. 135 by the Federal
Court only if the matter was actually pending before the
Federal Court and that it could not be said to be pending
until the appeal is declared admitted under Order XLV of the
Civil Procedure Code is
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too narrow and does not give full and proper scope to the
meaning of the word ’exercisable’ in the Article.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 92 of 1953.
Appeal under section 110 of the Civil Procedure Code from
the Judgment and Decree dated the 8th November 1949 of the
Bombay High Court in Appeal from Original Decree No. 195 of
1947 arising out of the Judgment and Decree dated 20th
December 1946 of the Court of Civil Judge, Senior Division,
Sholapur in Special Suit No. 78 of 1945.
C.K. Daphtary, Solicitor-General of India (R. A. Govind,
with him) for the appellants.
J.B. Dadachanji, Sri Narain Andley and Rajinder Narain, for
respondents.
1955. October 11. The Judgment of the Court was delivered
by
CHANDRASEKHARA AIYAR J.-This appeal is from a reversing
decree of the Bombay High Court in a suit for the possession
of certain immovable properties which was dismissed by the
Civil Judge, Senior Division, Sholapur. The value of the
properties has been found to be over Rs. 10.000.
The original decree was on 20-12-1946. The decree of the
High Court allowing the plaintiff’s claim was on 8-11-1949.
The defendants applied for leave to appeal to the Federal
Court on 6-1-1950. The High Court directed the trial court
to find the value of the property which was the subject-
matter of the suit at the time of the suit and on the date
of the passing of the decree in appeal. On 22-1-1951 the
lower court ascertained the value as stated above. ’The
High Court thereafter granted leave to appeal on 1-10-1951,
overruling the objections raised by the plaintiff to the
grant of such leave.
The maintainability of this appeal has been questioned
before us by Mr. Dadachanji, learned counsel for the
respondents, in a somewhat lengthy argument. His main
contention was that article 133 of the
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Constitution applies to the case, and as the value is below
Rs. 20,000, no appeal can be entertained. It is the
correctness of this argument that we have to consider.
On the date of the decree of the High Court, the defendants
had a vested right of appeal to the Federal Court, as the
properties were of the requisite value, and on 6-1-1950 they
sought a certificate of leave to appeal, which was bound to
be granted. The Constitution establishing the Supreme Court
as the final appellate authority for India came into force
on 26-1-1950. Did the vested right become extinguished with
the abolition of the Federal Court? If the court to which
an appeal lies is altogether abolished without any forum
substituted in its place for the disposal of pending matters
or for the lodgment of appeals, the vested right perishes no
doubt. We have therefore. to examine whether the
Constitution which brought the Supreme Court into being
makes any provision for an appeal from a reversing decree of
the High Court prior to the date of the Constitution
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respecting properties of the value of Rs. 10,000 and more
being entertained and heard by the Supreme Court.
Article 135 is in these terms:-
"Until Parliament by law otherwise provides, the Supreme
Court shall also have jurisdiction and powers with respect
to any matter to which the provisions of article 133 or
article 134 do not apply if jurisdiction and powers in
relation to that matter were exercisable by the Federal
Court immediately before the commencement of this
Constitution under any existing law".
Article 133 runs as follows:-
"(1) An appeal shall lie to the Supreme Court from any
judgment, decree or final order in a civil proceeding of a
High Court in the territory of India if the High Court
certifies-
(a) that the amount or value of the subject-matter of the
dispute in the court of first instance and still in dispute
on appeal was and is not less than twenty thousand rupees or
such other sum as may be specified in that behalf by
Parliament by law; or
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(b)that the judgment, decree or final order involves
directly or indirectly some claim or question respecting
property of the like amount or value; or
(c) that the case is a fit one for appeal to the Supreme
Court;
and, where the judgment, decree or final order appealed from
affirms the decision of the court immediately below in any
case other than a case referred to in sub-clause (c), if the
High Court further certifies that the appeal involves some
substantial question of law.................."
It is reasonably clear that article 133 does not apply to
this "matter". The language is prospective, and the
judgment, decree or final order from which the appeal is to
be taken is that of a High Court in the territory of India-
that is a High Court established under the Constitution.
The territory of India comprises the territory of the
States. Article 214 says that there shall be a High Court
for each State, and clause (2) thereof provides that "the
High Court exercising jurisdiction in relation to any
Province immediately before the commencement of this Consti-
tution shall be deemed to be the High Court for the
corresponding State". We can compendiously speak of the
High Court prior to the Constitution and the High Court
after the Constitution as the Provincial High Court and the
State High Court. A High Court in the territory of India
means a State High Court, and article 133 provides for
appeals against any judgment, decree or final order in a
civil proceeding of such High Court.
Though article 133 does not apply, we have still to see
whether it is a matter as regards which jurisdiction and
powers were exercisable by the Federal Court immediately
before the commencement of the Constitution. It is
unnecessary to refer in detail to the earlier enactments
defining the jurisdiction of the Privy Council, and the
Government of India Act, 1935 establishing the Federal Court
and conferring a limited jurisdiction on the same. It is
sufficient to point out that as the law then stood, the
Federal Court had jurisdiction to entertain and hear appeals
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from a decree of a High Court which reversed the lower
court’s decree as regards properties of the value of more
than Rs. 10,000. The aggrieved party had a: right to go
before it, without any special leave being granted. It was
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a matter over which jurisdiction was "exercisable" by the
Federal Court. The construction that it was "exercisable"
only if the matter was actually pending before the Federal
Court and that it could not be said to be pending until the
appeal is declared admitted under Order XLV of the Civil
Procedure Code is too narrow, and does not give full and
proper scope to the meaning of the word "exercisable" in
the-article. Pending matters are dealt with under article
374(2), and we must give some meaning to the provisions of
article 135. As soon as the decree of the High Court came
into existence, the jurisdiction of the Federal Court to
bear an appeal from that decree became exercisable, provided
certain conditions as to security and deposit were complied
with, which are not material for our present purpose.
Reference may be made here to paragraph 20 of the Adaptation
of Laws Order, 1950, as amended in 1951, which provides-
"Nothing in this Order shall affect the previous operation
of, or anything duly done or suffered under, any existing
law or any right, privilege, obligation or liability already
acquired, accrued or incurred under any such law.........."
By this Order section 110, Civil Procedure Code was adapted
to the new situation but the requirement as to value Was
raised from 10,000 to 20,000. What is provided is that this
adaptation will not affect the right of appeal already
accrued.
If we accede to the argument urged by the respondents, we
shall be shutting out altogether a large number of appeals,
where the parties had an automatic right to go before the
Federal Court before the Constitution and which we must hold
was taken away from them for no fault of their own, merely
because the Supreme Court came into existence in place of
the Federal Court. An interpretation or
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construction of the provisions of the Constitution which
would lead to such a result should be avoided, unless
inevitable. The Full Bench decision of the Madras High
Court in Gundapuneedi Veeranna and three others v.
Gundapuneedi China Venkanna and seven others(1) was a case
where the decree of the High Court and the application for
leave to appeal were both after the Constitution came into
force. Whether in all matters where there was a right of
appeal under section 110 of the Civil Procedure Code it
continues in respect of all suits filed prior to the
Constitution is a question that does not arise for decision
now.
On the merits, the appeal is unassailable. The family whose
genealogical tree is given in the opening portion of the
judgment of the trial Judge owned what may be compendiously
described as Sangam properties and Peta Velapur Mahal
properties, and all of them were of the nature of watan.
The Sangam lands were held by the eldest branch represented
by Yeshwant Rao (son of Panduranga Rao) by right of lineal
primogeniture. When Yeshwant Rao and his widow Tarabai died
in November 1924, these properties went to the plaintiff
Shankar Rao’s branch as the next senior in line. The Peta
Velapur Mahal properties were held in three shares by
Narsinga Rao, Vithal Rao and Krishna Rao, the fourth brother
Shyama Rao having no right as he was insane. Defendants 1,
2 and 3 represent Krishna Rao’s branch. After Yeshwant Rao’s
death, Lakshman Rao, the grandfather of defendants I and 2,
filed a suit No. 1064 of 1925 for a declaration that he was
the nearest heir to the Sangam properties, the Peta Velapur
Mahal properties and the cash income appertaining to the
inamdar’s right in Sangam. He got a declaratory decree that
he was the nearest heir of the deceased Yeshwant Rao, and
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had a right in such capacity to take possession of ill the
properties, excluding the inam income and the Sangam lands
specified in Schedule B of the decree and a small item of
property situated in the same village and specified in
Schedule G. As regards the excluded items, Shankar
(1) I.L.R. [1953] Mad. 1079.
878
Rao, the first defendant, (plaintiff in the present suit)
was held to be the heir. On appeal to the High Court, the
decree of the Subordinate Judge was confirmed, except as
regards the cash allowance of three villages Nevare, Tambure
and Limbagaon, which was also declared to belong to Shankar
Rao.
As the decree was only a declaratory decree, a fresh suit
had to be filed by Narayana Rao, son of Lakshman Rao, to
recover possession of the Peta Velapur Mahal properties at
Mahalung, Lavang and Wafegaon. This was Civil Suit No. 2148
of 1936. Recovery was also sought of some cash and the
value of some ornaments and clothes, etc. The claim was
resisted by Shankar Rao, and his main plea was that in lieu
of the properties claimed, a large number of lands at Sangam
had originally been given to the plaintiff’s branch, and
that unless those properties were given back, the plaintiff
could not claim to recover the Velapur Mahal properties.
The suit ended in a compromise decree. Shankar Rao was to
deliver actual possession of the lands to the plaintiff as
owner together with costs and mesne profits and the plain-
tiff was to abandon the rest of the claim. The decree
states, "The defendant has given up all the contentions in
his written statement".
After possession was taken of the Velapur Mahal properties
under the decree, the plaintiff, Shankar Rao, brought this
suit to recover from defendants I and 2 the Sangam lands to
which he referred in his earlier written statement alleging
that they were given to their grandfather in lieu of
maintenance. The defendants have made the answer that the
items of Sangam lands claimed by the plaintiff were given to
their ancestor, Krishna Rao absolutely under the deed of
1867, and that since then they had been in the enjoyment as
owners thereof. The Civil Judge dismissed the plaintiff’s
suit finding that the case of the plaintiff to the effect
that the lands were given to Krishna Rao for maintenance
under the deed of 1867 was unfounded. But on appeal by
Shankar Rao (the plaintiff), the High Court reversed this
decree construing the deed of 1867 as a deed under which
absolute owner-
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ship was not transferred to Krishna Rao and that the
specified items of Sangam lands were given to him
provisionally and conditionally till Krishna Rao obtained
possession of the Peta Velapur Mahal lands which were then
under a mortgage.
We have examined the deed closely and do not find any
warrant for the view taken by the learned Judges on appeal.
The deed is Exhibit No. 35, and it is printed at page 63 of
the Paper Book. The correctness of the translation is
admitted. It was executed by Narsinga Rao of the first
branch in favour of Krishna Rao of the last branch,
predecessor-in-title of defendants 1 to 3. After reciting
that Krishna Rao was entitled to a one-third share in the
income appertaining to the Deshmuki rent of the family at
Peta Velapur Mahal, it proceeds to say,
".......... In lieu of the land of that Mahal and in respect
of the cash allowance of the Haqdari rights we have given to
you for a 1/3 share of land of this Mahal the following
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lands from the village of Sangam which is continued with us
by Vadilki right (the right of primogeniture)".
The deed proceeds to set out the items by areas, assessment,
and boundaries, and then goes on:
"In all 6 numbers have been given by us to you in lieu of
your entire income from the said Mahal. Now, five and half
Pavs out of the said land are in your Vahiwat’ at present
and the remaining land was to have been given over to your
vahiwat, but we having formerly mortgaged the said village
to Ramchandra Pandurang Deshpande, 5 ’Pavs’ of land is not
in your Vahiwat this day. Hence on the expiry of 6 years,
the period of the mortgage, you may carry on the entire
Vahiwat of the land passed in your favour in writing as
aforesaid without any hindrance. We have no claim of
inheritance left on the aforesaid land".
The deed concludes with a provision made for the residence
of the donee in an open space in the same villagers It
further states:
"...... There are four shops and a wada at the Kasba of
Velapur, and a one-third share thereof has been allotted to
your share over which we have no
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claim of inheritance left".
It is obvious from this document that the one third share of
Krishna Rao’s branch in the Peta Velapur Mahal properties
was retained by Narasinga Rao and that in lieu thereof
Krishna Rao was given six items of the Sangam properties,
the whole of which could not then and there be given over
into his possession and management as there was a
usufructuary mortgage over a portion of the lands which was
to expire after the lapse of six years from that date. The
lands referred to as mortgaged are the Sangam lands and not
the Peta Velapur Mahal lands as wrongly assumed by the High
Court. There is absolutely nothing said about the
properties being given for maintenance to ]Krishna Rao. On
the other hand, in two places we find that any right to
inheritance was given up. In fact, this case of the
plaintiff was given up before the trial Judge. It is true
that there was an exchange of properties, but there is
nothing to warrant the view of the learned Judges that it
was provisional or conditional, and that the Sangam lands
were to be returned when the Velapur Mahal properties went
into the possession and management of Krishna Rao’s branch.
To say that such an arrangement was implied is to ignore the
plain terms of the deed.
The properties now in dispute are the items covered by the
deed. They did not form the subject-matter of the two
previous litigations. Since 1867, the date of Exhibit No.
35 they have always been in the possession of the
defendants’ branch as owners. It must also be remembered
that the earlier suits of 1925 and 1936 proceeded on the
basis that the defendants’ branch was the heir to the
properties left by the deceased, Yeshwant Rao.
There is no other question which arises for discussion or
decision. It follows that, the trial Judge was right in
holding that the plaintiff’s claim to recover possession of
the suit properties covered by the deed of 1867 was entirely
baseless. The decree of the High Court is reversed and that
of the trial Judge is restored with costs throughout payable
by the plaintiff to the defendants.
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