Radha Kinkar Gorain and Other vs Monibati Gorain and other

S.N. Jha, J.—This appeal by the defendants against the judgment of affirmance arises out of a suit for partition. One Sharda Gorain had two wives, Lakshmibala and Sumitrabala. The former predeceased her husband leaving behind one daughter Kaminibala. Sharda Gorain died in 1930 leaving behind Sumitrabala and Kaminibala. Kaminibala also died in 1942 leaving behind three sons who are defendants in the suit and a daughter, namely Monibati who is the plaintiff. Sumitrabala died on 1-6-1970. According to the plaintiff, after the death of Sharda Gorain his widow came in possession of his property as the sole heir and remained in possession till her death. Thereafter, the property devolved in equal shares upon the defendants and the plaintiff, being heirs of her husband under the provisions of the Hindu Succession Act, 1956. On account of the difficulties in joint possession of the property, the plaintiff requested for partition and on refusal instituted the suit claiming 1/4th share in the property.

The case of defendants on the other hand is that on the death of Sharda Gorain in 1930, his daughter Kaminibala came in exclusive possession of the entire property. It is said that sometime after the death of Sharda Gorain Sumitrabala surrendered her entire interest in the estate of her husband in favour of Kaminibala who was the next reversioner of her husband. Later, she renounced the world, became ascetic and died as such. The property remained throughout in possession of Kaminibala in her own right till her death in 1942. Thereafter, the defendants being her sons came in its possession as exclusive heirs to the exclusion of the plaintiff who, according to the then Hindu Law, being a daughter could not inherit along with the son. Thus, the defendants denied that the plaintiff had any right, title or interest in the suit property.

Both the courts below have concurrently held that the story of surrender of the property by Sumitrabala propounded by the defendants is untrue. She and not Kaminibala remained in possession of the property till her death. By virtue of the provisions of Section 14 of the Hindu Succession Act, she became its absolute owner on 17th June, 1956. After her death in 1973, the property devolved upon the heirs of her husband including the plaintiff. The plaintiff was, thus, entitled to 1/4th share in the suit property.

Mr. Ganpati Trivedi, Learned Counsel for the defendants contended that the suit being valued at Rs. thirteen thousand and odd, appeal in terms of Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (in short ''the Civil Courts Act'') lay before this Court and therefore, the judgment and decree under appeal passed by the Additional District Judge is without jurisdiction and nullity. Counsel submitted that in the circumstances this Court should treat this second appeal as first appeal and examine the correctness of the findings of facts recorded by the courts below. Reliance was placed on Ranjit Missir vs. Ramuddar Singh,: 1912 (16) Indian Cases 940 and Kiran Singh vs. Chaman Paswan, AIR 1954 Supreme Court 340.

In Ranjit Missir, the suit was originally valued at Rs. 2,100/- which was subsequently altered at the instance of the plaintiffs to Rs. 7,549 and ultimately reduced to Rs. 3,690. The Court held on facts that the real value of the suit was Rs. 5,415/- and an appeal against the decree of the subordinate Judge assessing the mesne profits could thus be entertained only by the High Court. It was held that the party aggrieved by the decree of the District Judge was entitled to raise the question of want of jurisdiction notwithstanding the fact that he had failed to take exception in the court below and it will not constitute waiver. In Kiran Singh, (Supra) no dobut, an observation has been made in paragraph 6 of the judgment that a defect of jurisdiction, whether pecuniary or territorial or whether it is in respect of the subject matter of action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of the parties. However, in ultimate analysis the Supreme Court refused to hold that the decree was nullity. Their Lordships stated�

There is one principle which stands out clear and conspicuous. It is that a decree passed by a Court, which would have had no jurisdiction to hear a suit, or appeal but for over-valuation or undervaluation, is not to be treated as, what it would be, but for the section, null and void, and that an objection to jurisdiction based on over-valuation or under valuation, should be dealt with under that section and not otherwise.

In that case, validity of the decree was challenged on the ground of want of jurisdiction due to wrong valuation and its consequence in terms of Section 11 of the Suits Valuation Act, 1887, which provides that if objection as to the wrong valuation is not taken in the initial stage, such objection shall not be entertained by the appellate or revisional Court unless it is satisfied for reasons to be recorded by it in writing that the wrong valuation of the suit or appeal has prejudicially affected the disposal of the suit or appeal on its merit.

The position in the instant case is slightly different. The validity of the decree is challenged on the ground of violation of Section 21 of the Civil Courts Act. Sub-section (1) of that Section, which is material, reads as follows :

Save as aforesaid, an appeal from decree or order of a Subordinate Judge shall lie�

(a) to the District Judge where the value of the original suit or in any proceeding arises out of which the decree or order was made was less than Rs. 10,000/-

(b) to the High Court in any other cases.

At this stage, it would be relevant to notice the other two provisions, namely. Section 11 of the Suits Valuation Act and Section 21 of the CPC (in short, ''the Code''). The former, in its material part, provides:

Notwithstanding anything in section 578 of the Code of Civil Procedure, 1882 (14 of 1882) an objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or lower Appellate Court which had no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless�

(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to that Court, or

(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing that the suit or appeal was over-valued or under valued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.

Section 21 of the Code as it stood prior to Amendment Act 104 of 1976 was as follows�

No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

It would, thus, appear that whereas both Section 11 of the Suits Valuation Act and unamended Section 21 of the Code contain specific provisions laying down the manner in which objection can be taken at the appellate or revisional stage for the first time regarding the incompetency of the suit or appeal in the court below on the ground of its over-valuation or undervaluation or on the ground of lack of territorial jurisdiction, respectively, Section 21 of the Civil Courts Act merely fixes pecuniary jurisdiction of the appellate court without prescribing or providing either for the consequences for its non-compliance or whether a belated objection as to its violation can be allowed to be taken for the first time at the second appellate stage, and if so, with what results and consequences. It may be stated here that by Amendment Act 104 of 1976 two new sub-sections have been inserted in Sections 21 of the Code as sub-sections (2) and (3) containing similar provision as to lack of pecuniary jurisdiction of the Court. The appeal in the instant case was filed prior to 1.2.1977 when the Amendment Act came into force and, therefore, by reason of Section 8 of the Amendment Act the question, strictly speaking, has to be considered in terms of the unamended Section 21. However, it would be relevant to refer to the said provisions in order to find out the legislative intendment as to the consequence of waiver of objection in the Court of first instance regarding its incompetence on the ground of excess of pecuniary jurisdiction. The said provisions read as follows :

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earlier, possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.

Kiran Singh (Supra) was a case where objection as to wrong valuation of the suit had not been taken in the Court of first instance. Dealing with the provisions of Section 11 of the Suits Valuation Act, their Lordships stated as follows:

The prejudice on the merits must be directly attributable to over-valuation or undervaluation and an error on a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valuation or undervaluation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section.

As to the meaning of the term ''prejudice'', their Lordships observed that it is neither possible nor even desirable to define or confine the term within the stated bounds. But it was categorically held that ''mere change of forum'' will not constitute prejudice. The following observations may usefully be noticed :�

So far, the definition of "prejudice" has been negative in terms�that it cannot be mere change of forum or mere error in the decision on the merits. What then is positively prejudice for the purpose of section 11 ? That is a question which has agitated Courts in India ever since the enactment of the section. It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in in justice, that would be prejudice within section 11 of the Suits Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under-valuation on the small cause side. The procedure for trial of suits in the Small Cause Court is summary; there are no provisions for discovery or inspection; evidence is not recorded ''in extenso'', and there is no right of appeal against its decision. The defendant thus loses the benefit of an elaborate procedure and a right of appeal which he would have had, if the suit had been filed on the original side. It can be said in such a case that the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case.

Section 21 of the Code, which is on the same lines, contains a different phraseology. While in section 11 of the Suit Valuation Act the test for allowing a belated objection is ''prejudice'', in Section 21 of the Code the words used are unless there has been a consequent failure of justice''. But as would appear from the following observations rendered in the context of Section 11 in Kiran Singh (Supra), the term ''prejudice'' was virtually treated as synonymous with ''consequent failure of justice'' as a result of wrong valuation.

The jurisdiction that is conferred on appellate Courts under that Section is an equitable one, to be exercised when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over-valuation or under-valuation and a consequent failure of justice.

(Emphasis added)

In my opinion, therefore, the use of a different phrase in Section 21 of the Code would hardly make difference and the observations of the Supreme Court, noticed above, would mutatis mutandis apply to cases where a decree is challenged on the ground of being in excess of the pecuniary jurisdiction of the appellate Court. I am conscious of the position that the provisions of sub-sections (2) and (3) of Section 21 of the Code, strieto sensu are not applicable to the instant cage, chronologically as also because they apply only to suits. However, it has to be kept in mind that Section 21 of the Civil Courts Act fixing the pecuniary limits of the Appellate Court does rot stipulate the consequences of its non-compliance or provide for the manner in which a belated objection in that regard can be taken. On principles, therefore, it must be held that, like Section 11 of the Suits Valuation Act or Section 21 of the Code, the party aggrieved must show that the disposal of the appeal has caused prejudice to it or has occasioned consequent failure of justice. It is not desirable, and indeed not possible, to define the phrases. But the alleged prejudice or failure of justice must be directly attributable to something relating to practice and procedure and manner of disposal by the Court concerned and not errors in conclusions reached by it. If wrong conclusions or findings of fact were to be basis for judging whether prejudice has been caused or failure of justice has occasioned, it would virtully amount to relegating the Second Appellate Court to the position of the First Appellate Court and then to see for itself as to whether the findings of fact are correct or erroneous. As to exercise of discretion, it has to be kept in mind that that object underlying these provisions is that contested decree of the Court should not be avoided and lightly interfered with by allowing a participant to raise belated objection on the ground of lack of jurisdiction after an adverse decree is passed against him.

Another striking feature of the case is that the appeal in the court below was preferred by none else than the appellants herein. In other words, the appellants having filed the appeal in the court which had no pecuniary jurisdiction, want to take advantage of their own wrong and avoid the adverse decree. This aspect also fell for consideration in the case of Kiran Singh (Supra) and was negatived in these words :�

It would be an unfortunate state of the law if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own.

It is settled principle of law that a party having participated in the prceeeding and got adverse decree or order cannot subsequently turn round and challenge the jurisdiction of the Court.

The submission of the Learned Counsel that the instant second appeal should be treated as a first appeal and the Court should examine the correctness of the finding is equally misconceived. I can do no better than to refer to the following observations of the apex court in case of Kiran Singh (Supra).

It must further be noted that there is no provision in the Civil Procedure Code, which authorises a Court of second appeal to go into questions of fact on which the lower appellate Court has recorded findings and reverse them. Section 103 was relied on in�''AIR 1949 Pat 278 (FB)'' as conferring such a power. But that section applied only when the lower appellate Court has failed to record a finding on any issue or when there has been irregularities or defects such as fall u/s 100, C.P.C. If these conditions exist, the judgment under appeal is liable to be set aside in the exercise of the normal powers of a Court of second appeal. If they do not exist, there is no other power under the CPC authorising the Court of second appeal to set aside findings of fact.

To conclude, an adverse decree of the appellate Court can be avoided on the ground of lack of of pecuniary jurisdiction in terms of Section 21 of the Civil Court Act only if it would cause prejudice or occasion consequent failure of justice. Nothing of the kind has been shown to us. Accordingly, the plea is rejected.

Learned Counsel next contended that there is an apparant error of law in the finding of the courts below in as much as they have proceeded on the assumption that Sumitrabala inherited the property of her husband although by reason of the death of her husband in 1930 i.e. prior to coming into force of the Hindu Womens'' Right to Property Act, 1937 (in short, ''1937 Act'') her status cannot be more than that of a maintenance holder. To my mind, reference to the provisions of 1937 Act is wholly irrelevant. As is well known, that Act was enacted to remove the disabilities of Hindu women and to give them better rights. They were not in derogation of the rights already enjoyed by them from before. In other words, if the law as it stood prior to 1937 Act, based on custom or otherwise, conferred certain rights upon Hindu women, they were not intended to be taken away by the Act. If she, in certain circumstances, was an heir in her own right, the Act did not intend to abridge or restrict her rights or affect her status as such.

In paragraph 88 of his treatise on Hindu Law, Mulla has enumerated the Sapinda heirs of a male Hindu governed by the Dayabhaga School. According to the order of succession amongst the Sapindas, son, grandson and greatgrand son were the first heirs who would inherit the property in that order. In absence of the son, grand son or great-grandson, the widow was an heir in her own right-at serial No. 4. The daughter was an heir mentioned at serial No. 5 i.e. only when, apart from son, grandson or great-grand son, the widow also was not available to inherit the estate. By virtue of the provisions of subsection (1) of Section 3 of the 1937 Act, the widow, besides the others, became entitled to the same share in the property as that of a son, with the only difference that her interest in the property was limited in nature known as "Hindu Woman''s estate''. In other words, while before 14.4. 1937, when that Act came into force, a widow was entitled to inherit the property of the husband as an heir only if there was no son, grandson or great-grandson, after the Act, she became entitled to inherit, in equal shares, along with the son as also widow of predeceased son and widow of a predeceased son of a predeceased son provided there was no son surviving of such predeceased son.

In the instant case, Sharda Gorain died in 1930 admittedly without leaving behind any son, grandson or great-grandson. Thus, it is obvious that Sumitrabala, as his widow and, therefore, as an heir in her own right, was competent to inherit his property to the exclusion of Kaminibala who was only next in the order of succession. The geneaology is not in dispute. That being the position, it is axiomatic that Sumitrabala had inherited the property of Sharda Gorain upon his death, as limited owner and after coming into force of Hindu Succession Act as absolute owner till her death on 1.6.1970. Section 15 of the Hindu Succession Act sets out the rules of succession in the case of female Hindu dying intestate. Clause (b) of Sub-section (2) of the section provides :�

any properly inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of her husband.

Admittedly, Sumitrabala died issueless. Thus, the property of her deceased husband would devolve upon not only the defendants but also the plaintiff, being the sons and daughter, respectively, of the predeceased daughter, namely, Kaminibala, of Sharda Gorain. The finding of fact concurrently recorded by the courts below regarding possession of Sumitrabala over the suit property during her life time and entitlement of the plaintiff to her one-fourth share therein cannot be said to be erroneous in law.

In the result I find no merit in this appeal which is, accordingly, dismissed. Since there is no appearance on the side of plaintiff-respondent, I shall make no order as to costs.

Aftab Alam, J.

I agree.