Man Singh vs Maharani Nawalkhbati and Another

Dawson Miller, C.J.—This is an application on behalf of the plaintiff in the suit for leave to appeal to His Majesty in Council from a decree of a Division Bench of this Court, dated the 6th April this year. The value of the property which is the subject-matter of the suit and of this appeal is stated to be 45 lakhs of rupees. The decree appealed from affirmed the decision of the trial Court but on different grounds from those upon which the trial Court''s decision was based. The applicant contends that the appeal complies with the provisions of Section 110 of the CPC but if this contention should fail he contends further that the case is a fit one for a certificate under the provisions of Section 109, Clause (c) of the Code.

The suit was instituted by the plaintiff on the 17th January, 1921, for a declaration of his title to and to obtain possession of the estate of the late Maharaja Sir Harballabh Narain Singh who died in the year 1907 leaving two widows Maharani Tarabati and Maharani Naulakhbati but no male issue. On the death of the Maharaja his property descended to his widows who took a Hindu widows'' estate. The senior Maharani Tarabati had a married daughter Padambati who had two sons Rao Bahadur Gobind Singh and Rao Bahadur Rudra Pratab Singh. The plaintiff is the son of Gobind Singh. Shortly after the death of the late Maharaja Harballabh Narain Singh the estate was taken over by the Court of Wards under the provisions of the Court of Wards Act (Bengal Act IX of 1879) and the Maharanis became wards of Court. The two Maharanis are said to have conceived the idea of relinquishing the estate in favour of one of the two grandsons of the senjor Maharani but it was pointed out to them on behalf of the Court of Wards that they could not relinquish in favour of one only of the next male reversioners. In the result on the 18th December, 1918, they did execute a deed of relinquishment in favour of both the grandsons, Gobind Singh and Rudra Pratap Singh in equal shares. Subsequently when Gobind Singh applied for substitution of his name in the Land Registration Department together with that of his brother his claim was opposed on behalf of the Court of Wards and his prayer for registration was rejected. In October, 1919, Gobind Singh died leaving as his heir the plaintiff in this suit. If the deed of relinquishment relied upon is a valid and binding instrument the interest of the plaintiff''s father in the estate became vested at the date of the deed in December, 1918, and on his death his son the plaintiff would succeed to his share in the inheritance jointly with his uncle Rudra Pratap Singh. The defendant, first party in the suit, is the surviving Maharani Naulakhbati, the junior widow of the late Maharaja, who was sued through the Manager of the estate under the Court of Wards. As the plaintiff''s uncle Rudra Pratap Singh refused to join in the suit he was impleaded as the defendant, second party.

Several pleas were raised in defence to the suit on behalf of the Manager of the Court of Wards who then represented the Maharani Naulakhbati. It is only necessary, however, for present purposes, to refer to two of the issues which ware framed at the trial. Issue No. 3 was "Whether the deed of surrender dated the 18th Deoember, 1918, was executed by the Maharanis, widows of Maharaja Sir Harballabh Narain Singh Bahadur, under misrepresentation, without getting any independent advice and without) knowing or understanding its contents. Is it legally valid or operative?" Issue No. 5 was "Is the deed of surrender valid having regard to the provisions of Section 60 of the Court of Wards Act?"

It was apparently the case of the Maharani that she had no independent advice and had no knowledge or understanding of the contents of the document when she executed it. Her evidence was taken before a Commissioner appointed for that purpose and after she had made certain statements with regard to this issue the learned Vakil engaged by the Court of Wards to represent her interest stated to the Commissioner appointed to record the evidence that under instructions from the Court of Wards he would not press issue No. 3. Consequently she was not cross-examined on this issue. After the evidence was closed and after the learned Vakil for the plaintiff had addressed the Court in argument but before judgment was delivered the estate ceased to be under the management of the Court of Wards and was restored to the surviving Maharani. Immediately thereafter, having appointed another Vakil to represent her interests in the suit, she applied through him to be allowed to raise the issue which had been abandoned by the learned Vakil who had previously represented her under the instructions of the Court of Wards, and to be allowed to give further evidence upon the matters raised in that issue. The learned Additional Subordinate Judge refused the application to adduce further evidence and to reopen the issue but in his judgment ha considered at great length the questions of fact raised in that issue and decided them in favour of the plaintiff. With regard to issue No. 5 he decided that the surrender by the Maharanis in favour of their grandsons was invalid by reason of the provisions of Section 60 of the Court o� Wards Act. He accordingly dismissed the suit upon that ground.

The plaintiff appealed to the High Court and contended successfully that the deed of relinquishment was not invalid by reason of the provisions of Section 60 of the Court of Wards Act. He objected to the findings of fact by the trial Court upon the third issue being reopened in appeal as this point had been abandoned during the trial. The learned Judges before whom the appeal came considered, however, that they bad power in the circumstances to consider this issue but, before determining it, they thought that the appellant should, have an opportunity, if he so desired, to cross-examine the Maharani upon the evidence she bad already given and to call any further evidence he might wish to adduce upon this point. In the result the Maharani was cross-examined and further evidence was called by the appellant before the appellate Court. That Court by its judgment found that the Maharani had had no independent advice and had signed the deed of relinquishment without knowing or understanding its contents. The result was that although the appellate Court reversed the findings of the trial Court both upon the question of law and upon the question of fact the decree of the trial Court was affirmed and the appeal dismissed.

In applying for leave to appeal to His Majesty in Council from that decision the learned Government Advocate on behalf of the plaintiff has contended that the decree from which he seeks leave to appeal does not affirm the decision of the Court below within the meaning of Section 110 of the CPC and that it is not necessary therefore for him to show that the appeal involves some substantial question of law. It is true that there are not concurrent findings of fact in the present case but that does not, in my opinion, remove it from the operation of the last Clause of Section 110. The decision of the Court below was a decision dismissing the suit and the decree which it is now sought to appeal against undoubtedly affirmed that decision. It is unnecessary, in my opinion, that the judgment of affirmance should be based upon precisely the same reasons as those given by the Court below. The decision mentioned In that part of the Section must, I think, mean the decree or order passed and not the reasons given for passing such decree or order.

It was next contended that the appellate Court committed an error of procedure in permitting an issue which had been given up to be re-opened and in allowing, in the appellate stage further evidence to be taken and that this was in itself a sufficiently substantial question of law to entitle the applicant to appeal to His Majesty in Council. I am unable to accept the view that a substantial question of law arises in this respect. Having regard to the peculiar circumstances of this case I think it would have been perfectly legitimate for the learned Subordinate Judge of the trial Court to have granted the defendant''s request to be allowed to raise the issue which she asked to raise at a late stage of the case provided that the other side were given an opportunity of adducing evidence upon the issue raised, and if the Court of appeal considered that in the interests of justice this issue ought not to be shut out, I think they had power to deal with it having regard to the provisions of Sections 151 and 153 of the Civil Procedure Code. I cannot see that the appellant was prejudiced as he was given the opportunity, which he availed himself of, of cross-examining the Maharani and of calling further evidence upon the issue.

It was next contended that a question of law does arise in this appeal, namely, the construction of Section 60 of the Court of Wards Act. The construction of that section, however, is not involved in the present appeal as it was construed by the appellate Court in favour of the appellant and there is no appeal from that pare of the decision. Moreover if the appeal must fail unless a finding of fact is first reversed, it does not appear to me that an appeal in such circumstances necessarily involves any question of law at all.

It remains to consider whether this is a case which we ought to certify as a fit one for appeal under Clause (c) of Section 109: No limitation is imposed by that Clause to the cases in which the Court may certify, but at the same time it is a power which ought to be used very sparingly. The question generally arises in cases where the value of the subject-matter in appeal is below the statutory amount of Rs. 10,000. In such oases it is unusual to grant a. certificate unless the case is one of great general importance or involves the interests of a large Section of the community. But it is perhaps not possible and I do not think it desirable to attempt, to lay down any general Rule which will govern all cases. There are, however, in my opinion, special features in the present case which ought, I think, to justify us in certifying that this is a fit case for appeal u/s 109, Clause (c) of the Code. In the first place the value involved in the present case is very large. Secondly the decision of the High Court was based upon findings of fact which reversed the findings of the trial Court. Further the evidence upon which the High Court acted was not all before the trial Court. Again although, in my opinion, the question of law contended for is not one of substance it is a question touching procedure of a somewhat unusual character and it is quite possible that Higher tribunal might take a different view. Although no one of these features alone might be sufficient to justify us in acting u/s 109, I think that in the peculiar circumstances of this case the combined effect of these matters is such that we ought to exercise our power u/s 109 and certify that the case is a fit one for appeal to His Majesty in Council under the provisions of Clause (c) of that section. The applicant is entitled to his costs of this application. Hearing fee 5 gold mohurs.

Mullick, J.

I agree.