Asrumati Debi Vs. Kumar Rupendra Deb
Raikot & Ors  INSC 13 (27 February 1953)
SASTRI, M. PATANJALI (CJ) BOSE, VIVIAN
BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 198 1953 SCR 1159
CITATOR INFO :
RF 1965 SC 507 (19) RF 1970 SC 891 (5) R 1971
SC2337 (4) R 1974 SC1719 (11,12,13,14) RF 1981 SC1786 (73,99,139,152) R 1988
Letters Patent (Calcutta High Court), cls.
13, 15-Order for transfer of suit under cl. 13-Whether " judgment"-
Appealability -meaning of "judgment".
An order for transfer of a suit, made under
clause 13 of the Letters Patent of the Calcutta High Court is not a
"judgment" within the meaning of clause 15 of the Letters Patent and
no appeal lies therefrom under the Letters Patent, as it neither affects the
merits of the controversy between the parties in the suit itself, nor
terminates or disposes of the suit on any ground.
[Meaning of the word "judgment"
Khatizan v. Sonairam (I.L.R. 47 Cal. 1104), Justices of the Peace for Calcutta v. Oriental Gas Co. (8 Beng. L.R. 433),
Dayabhai v. Murugappa Chettiar (I.L.R. 13 Rang. 457), Tuljaram v. Alagappa
(I.L.R. 35 Mad. 1), Mathura Sundari v. Haranchandra (I.L.R. 48 Cal. 857), Chandicharan v. Tnanendra (29 C.L.J. 225), Lea Badin v. Upendra Mohan Boy
Chowdhry (39 C.W.N. 156), Kanwar Lal Singh v. Uma Devi (A.I.R. 1945 Nag. 156),
Sankar Deo v. Kalyani (A.I.R. 1948 Nag. 85), Shahzadi Begum v. Alaknath (I.L.R.
57 All. 983), Shaw Hari v. Sonahal Beli Ram (I.L.R. 23 1160 Lab. 491), Sonebai
v. Ahmedbhai (9 Bom. H.C.R. 398) and Vaghoji v. Gamaji (I.L.R. 29 Bom. 249)
referred to. Krishna Reddi v. Thanikachala (I.L.R. 47 Mad. 136) disapproved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 92 of 1952.
Appeal by special leave from the Judgment and
Order dated 16th May, 1951, of the High Court of Judicature at Calcutta
(Harries C. J. and Das J.) in Appeal from Original Order No.
136 of 1949 arising out of Judgment and Order
dated the 25th April,' 1949, of the said High Court (Banerjee J.) in Extra-
ordinary Suit No. 2 of 1948.
N. C. Chatterjee (B. Sen, with him) for the-
S. P. Sinha (A. K. Dutt, with him) for the
1953. February 27. The Judgment of the Court
was delivered by MUKHERJEA J.This appeal, which has come before us on special
leave, is directed against a judgment of an Appellate Bench of the Calcutta
High Court, dated the 16th May, 1951, by which the learned Judges dismissed an
appeal taken against an order, made by a single Judge on the Original Side of
that Court,, under clause 13 of the Letters Patent, on the preliminary ground
that the appeal was not competent in law.
There is no dispute about the material facts
of the case which lie with-in a short compass. On 7th August, 1947, a suit was
filed by the respondent Kumar Rupendra Deb Raikot in the Court of the
Subordinate Judge at Jalpaiguri in West Bengal,being Title Suit No. 40 of
1947,for recovery of possession of a large estate known as Baikunthapur Raj
situated in that district, on the allegation that he, being the eldest son of
late Prosanna Deb Raikot, the last holder of the estate, became entitled to the
properties on the I death of his father under a custom of the family which
excludes all females from inheritance and follows the rule of Iineal 1161
primogeniture in matters of succession. Prosanna died in December, 1946, and
Asrumati Debi, the appellant before us, is admittedly his widow. There was no
son born to her and her only child is a daughter named Prativa. According to
the plaintiff respondent, his mother Renchi Debi, who is a Lepcha by birth was
another lawfully wedded wife of Prosanna and was married to the latter in what
is known as the " Gandharba form. Prosanna had three sons by this wife,
the plaintiff being the eldest. Asrumati, it is alleged, took possession of the
bulk of the properties comprised in the estate on the death of her husband,
although she had no legal right to the same and it was to evict her from these
properties that this suit was brought. Besides Asrumati, the plaintiff also
impleaded three other agnatic relations of the deceased (who are defendants
Nos. 2 to 4) and also his own two younger brothers as defendants to the suit.
Asrumati filed her written statement on
January 19, 1948, and the main defence put forward by her was that there was no
legal marriage between her husband and the plaintiff's mother, the latter being
only one of the several mistresses of her husband. She denied that there was
any custom in the family under which females were excluded from inheritance.
The defendants 2 to 4 also filed written
statements, challenging the legitimacy of the plaintiff and his claim to
succession, and put forward their own rights as heirs under the customary law
obtaining in the family.
On 30th April, 1948, the plaintiff presented
an application in the Original Side of the High Court of Calcutta under clause
13 of the Letters Patent, praying for transfer of the suit filed in the
Jalpaiguri court to the High Court to be tried in its Extraordinary Original Civil
This application was heard by Banerjee J.
sitting singly and by his order dated the 25th of April, 1949, the learned
Judge allowed the application, substantially on the ground that having regard
to the atmosphere of prejudice that was created in the locality by supporters
of the defendant, who wielded 1162 considerable influence in the district, the
plaintiff might have a legitimate apprehension that he would not get fair trial
in the district court.
Against this decision the defendant No. 1
took an appeal to the Appellate Bench of the High Court of Calcutta and the
learned Judges (Trevor Harries C. J. and Das J.) dismissed the appeal on the
ground that the order appealed again was not a 'judgment' within the meaning of
clause 15 of the Letters Patent. It is the propriety of this decision that has
been challenged before us in this appeal.
The High Court of Calcutta in holding the
appeal before it to be incompetent based its decision entirely upon an earlier
pronouncement of a Division Bench of the same court, where it was held by
Mookerjee A.C.J. sitting with Fletcher J. that an order for transfer of a suit
made under clause 13 of the Letters Patent was not a 'judgment' within the
meaning of clause 15 (1). Reliance was placed by the learned Judges for this
view upon the pronouncement of Sir Richard Couch C. J. in the well-known and
often cited case of The Justice of the Peace for Calcutta v. The Oriental Gas
Company (2), where the learned Chief Justice said as follows:- "We think
that 'judgment' in clause 15 means a decision which affects the merits of the
question between the parties by determining some right or liability. It may be
either final or preliminary, or interlocutory, the difference between them
being that a final judgment determines the whole cause or suit, and a
preliminary or interlocutory judgment determines only a part of it, leaving
other matters to be determined." The identical question, whether an order
for transfer under clause 13 of the Letters Patent is a 'judgment' for purposes
of appeal, was pointedly raised before the Madras and the Rangoon High Courts,
and while the Madras High Court (3) answered the question hi the affirmative, a
definitely negative answer was given by (1) See Khatizan v. Sonairam, I.L.R. 47
Cal. 1104 (2) 8 Ben. L.R. 433.
(3) Vide Krishns Reddi v. Thanikacha, I.L.R
47 Mad. 136.
1163 the Rangoon High Court (1). The Madras
decision purports to be in accordance with the view enunciated a Full Bench of
that court in Tuljaram v. Alagappa(2) where Sir Arnold White C. J. sitting with
Krishna swami Aiyar and Ayling JJ.
formulated a definition of 'judgment' in a
comprehensive manner differing fro the wide interpretation put upon the term in
the earlier case of DeSouza v. Coles (3). "The test seems me," thus observed
the learned Chief Justice, "to be not what is the form of the
adjudication, but what is its effect on the suit or proceeding in which it is
made. If its effect, whatever its form may be, and whatever may be the nature
of the application on which it is made, is to put an end to the suit or
proceeding so far as the court before which the suit or proceeding is pending
is concerned, or if its effect, if it is not complied with, is to put an end to
the suit or proceeding, I think the adjudication is a judgment within the
meaning of the clause." This decision, it may be pointed out, has not only
been adhered to in Madras since then without any comment, but the Calcutta High
Court has in several instances manifested a marked leaning towards it (4).
On the other hand, a Full Bench(1) of the
Rangoon High Court presided over by Page C.J. took 'a view altogether different
from that of the Calcutta and the Madras High Courts as regards the meaning of
the word I judgment' in clause 13 of the Rangoon Letters Patent, which
corresponds to clause 15 of the Letters Patent of the Calcutta and Madras High
Courts. It was held by the Full Bench of the Rangoon High Court that the term
'judgment' in the Letters Patent means and is a decree in a suit by which the
rights of the -parties in the suit are determined. In other words, 'judgment'
is not what is defined in section 2 (9) of the Civil Procedure Code as being
the statement given by the judge of the grounds of a decree (1) Dayabhai v.
Muyugappa Chettiay, 13 Rang. 457 (F.B.).
(2) 35 M 1 (F.B.).
(3) 3 M.H.C.R. 384.
(4) Vide Muathura Sundari v. Haran Chandra
I.L.R. 43 Cal.
857; Chandi Charan v. Jnanendra 29 C.L.J. 225
at 229 Lea Badin v. Upendra Mohan Roy Chaudhury, 39 C.W. N. 155 1164 or order,
but is a judoment in its final and definitive sense embodying a decree. A final
' judgment is an adjudication which conclusively determines the rights of the
parties with regard to all matters in issue in the suit, whereas a preliminary
or interlocutory judgment is a decree by which the right to the relief claimed
in the suit is decided but under which further proceedings are necessary before
a suit in its entirety can be disposed of. Save and except final and
preliminary judgments thus defined, all other decisions are ' orders' and they
do not come within the description of I judgments ' under the relevant clause
of the Letters Patent. No 'order' is appealable unless an appeal is expressly
provided against it by the Civil Procedure code or some other Act of the
Legislature. In this view an ' order' for transferring a suit from a
subordinate court to the High Court could not possibly be regarded as a
'judgment', and consequently no appeal would lie against such an order. This
definition of ' judgment 'has been accepted in several cases by the Nagpur High
Court (1), and substantially this seems to be the view of the Allahabad High
Court also (2). A Full Bench of the Lahore High Court(,'), however, has refused
to accept this view and has preferred to follow the tests enumerated by the Calcutta
and the Madras High Courts. The Bombay High Court accepted the Calcutta view
from the very beginning (4).
In view of this wide divergence of judicial
opinion, it may be necessary for this court at some time or other to examine
carefully the principles upon which the different views mentioned above purport
to be based and attempt to determine with as much definiteness as possible the
true meaning and scope of the word I judgment' as it occurs in clause 15 of the
Letters Patent of the Calcutta High Court and in the corresponding clauses of
the Letters Patent of the other High Courts. We are, however, relieved from
embarking (1) Vide Kunwar Lal Singh v. Uma Devi, A.I.R. 1945 Nag.
156; Shankar Deo v. Kalyani, A.I.R. 1948 Nag.
(2) Vide Shahzadi Begam v. Alakhnath, 57 All.
983 (F.B.) (3) Shaw Hari v. Sonah Mal Beli Ram, I.L.R. 23 Lah. 491, (4) Vide
Sonebai v. Ahmedbhai, 9 Bom. H.C.R. 398, 1165 on such enquiry in the present
case as we are satisfied that in none of the views referred to above could an order
of the character which we have before us, be regarded as a judgment' within the
meaning clause 15 of the Letters Patent.
Couch C.J., as said already, defined
'judgment' be a decision which determines some right or liability affecting the
merits of the controversy between the parties. It is true that according to the
learned Chief Justice an adjudication, in order that it might rank as a
'judgment', need not decide the case on its merits, but it must be the final
pronouncement of the court making it, the effect of which is to dispose of or
terminate the suit or proceeding.
This will be apparent from the following
observations made by Couch C.J. in the course of his judgment in the case
referred to above :
" It is, however, said that this court
has already put a wider construction upon the word I judgment' in clause 15 by
entertaining appeals in cases where the plaint has been rejected as
insufficient, or as showing that the, claim is barred by limitation,, and also
in cases where orders have been made in execution. These however are both
within the above definition of a judgment, and it by no means follows that,
because we hold the order in the present case not to be appealable, we should
be bound to hold the same in the cases referred to. For example, there is an
obvious difference between an order for the admission of a plaint and an order
for its rejection. The former determines nothing, but is merely first step
towards putting the case in a shape for determination. The latter determines
finally so far as the court which makes the order is concerned that the suit,
as brought. will not lie. The decision, therefore, is a judgment in the proper
sense of the term ." It cannot be said, therefore, that according to Sir
Richard Couch every judicial pronouncement on a right or liability between the
parties is to be regarded 151 1166 as a 'judgment', for in that case there
would be any number of judgments in the course of a suit or proceeding, each
one of which could be challenged by way of appeal.
The judgment must be the final pronouncement
which puts an end to the proceeding so far as the court dealing with it is
concerned. It certainly involves the determination of some right or liability,
though it may not be necessary that there must be a decision on the merits.
This view, which is implied in the observations of Sir Richard Couch C.J.
quoted above, has been really made the basis of the definition of I judgment'
by Sir Arnold White C.J. in the Full Bench decision of the Madras High Court to
which reference has been made (1). According to White C.J. to find out whether
an order is a I judgment ' or not, we have to look to its effect upon the
particular suit or proceeding in which it is made. If its effect is to
terminate the suit or proceeding, the decision would be a 'judgment' but not
otherwise. As this definition covers not only decisions in suits or actions but
'orders' in other proceedings as well which start with applications, it may be
said that any final order passed on an application in the course of a suit,
e.g., granting or refusing a party's prayer for adjournment of a suit or for
examination of a witness, would also come within the definition. This seems to
be the reason why the learned Chief Justice qualifies the general proposition
laid down above by stating that "an adjudication on an application, which
is nothing more than a step towards obtaining a final adjudication in the suit,
is not a judgment within the meaning of the Letters Patent. " As stated
already, it is not our purpose in the present case to frame an exhaustive
definition of the word 'judgment' as used in clause 15 of the Letters Patent.
We have indicated what the essential features of a I judgment' are according to
both the Calcutta and the Madras High Courts and all that we need say is that,
in our opinion, an order under clause 13 of the Letters Patent does not satisfy
the tests of a 'judgment' as formulated by either of these High Courts.
(1) Vide Tuljaram v. Alagappa, 35 Mad, 1,
1167 The question that requires determination in an application under clause 13
of the Letters Patent is, whether a particular suit should be removed from any
court which is subject to the superintendence of the High Court and tried and
determined by the latter as a court of extraordinary original jurisdiction. It
is true that unless the parties to the suit are agreed on this point, there
must arise a controversy between them which has to be determined by the court.
In the present case, a single Judge of the High Court has decided this question
in favour of the plaintiff in the suit; but a decision on any and every point
in dispute between the parties to a suit is not necessarily a ' judgment'. The
order in the present case neither affects the merits of the controversy between
the parties in the suit itself, nor does it terminate or dispose of the suit on
any ground. An order for transfer cannot be placed in the same category as an
order rejecting a plaint or one dismissing a suit on a preliminary ground as
has been referred to by Couch C.J. in his observations quoted above.
An order directing a plaint to be rejected or
taken off the file amounts to a final disposal of the suit so far as the court
making the order is concerned. That suit is completely at an end and it is
immaterial that another suit could be filed in the same or another court after
removing the defects which led to the order of rejection. On the other hand, an
order of transfer under clause 13 of the Letters Patent is, in the first place,
not at all an order made by the court in which the suit is pending. In the
second place, the order does not put an end to the suit which remains perfectly
alive and that very suit is to be tried by another court, the proceedings in
the latter to be taken only from the stage at which they were left in the court
in which the suit was originally filed.
Mr. Chatterjee in the course of his arguments
placed considerable reliance upon the pronouncement of the Calcutta High Court
in Hadjee Ismail v. Hadjee Mahomed (1), where it was held by Court C.J. and (1)
13 Beng, L.R. 91.
1168 Pontifex J. that an order refusing to
rescind leave to sue granted under clause 12 of the Letters Patent was a
'judgment' under clause 15 and could be challenged by way of appeal. This
decision was followed by the Bombay High Court in Vaghoji v. Camaji(1); and it
is argued by Mr. Chatterjee that there is no difference in principle between an
order of that description and an order transferring a suit under clause 13 of
the Letters Patent. The contention of Mr. Chatterjee undoubtedly receives
support from the judgment of the Madras High Court in Krishna Reddy v. Thanikachala(2),where
precisely the same line of reasoning was adopted. In our opinion, this
reasoning is not sound and there is an essential difference between an order
rescinding or refusing to rescind leave to sue granted under clause 12 of the
Letters Patent and one removing a suit from a subordinate court to the High
Court under clause 13 of the Letters Patent, and this distinction would be
apparent from the observations of Sir Arnold White C.J. in the Madras Full
Bench case(3) mentioned above, to which sufficient attention does not appear to
have been paid by the learned Judges of the same court who decided the later
case. Referring to the decision of the Bombay High Court in Vaghoji v.
Camaji(1), White C.J. observed as follows:
"As regards the Bombay authorities I may
refer to Vaghoji v. Camaji(1), where it was held that an appeal lay from an
order dismissing a Judge's summons to show cause why leave granted under clause
12 of the Letters Patent should not be rescinded and the plaint taken off the
file. Here the adjudication asked for, if made, would have disposed of the
suit. So also would an order made under an application to revoke a submission
to arbitration. I think such an order is appealable." Leave granted under
clause 12 of the Letters Patent constitutes the very foundation of the suit
which is instituted on its basis. If such leave is rescinded. the (1) I.L.R. 29
Bom. 249. (2) I.L.R. 47 Mad. 136.
(3) Vide Tuljaram v. Alagappa 35 Mad. 1
1169 suit automatically comes to an end and
there is no doubt that such an order would be a judgment. If, on the other
hand, an order is made dismissing the Judge's summons to show cause why the
leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed
out(1), that a decision on a vital point adverse to the defendant, which goes
to the very root of the suit, becomes final and decisive, against him so far as
the court making the order is concerned. This brings the order within the
category of a 'judgment' as laid down in the Calcutta cases. We need not
express any final opinion as to the propriety or otherwise of this view. It is
enough for our purpose to state that there is a difference between ail order
refusing to rescind leave granted under clause 12 of the Letters Patent and one
under clause 13 directing the removal of a suit from one court to another, and
there is no good reason to hold that the principle applicable to one applies to
the other also.
The result, therefore, is that, in our
opinion, the view taken by the High Court is right and this appeal should fail,
and is dismissed with costs.
Agent for the appellant: P. K. Bose.
Agent for the respondent No. 1 : Sukumnar
Ghose for P. C. Dutt.