Dajisaheb Mane & Ors Vs. Shankar
Rao Vithal Rao Mane& ANR  INSC 52 (11 October 1955)
AIYAR, N. CHANDRASEKHARA DAS, SUDHI RANJAN
BOSE, VIVIAN JAGANNADHADAS, B.
IMAM, SYED JAFFER
CITATION: 1956 AIR 29 1955 SCR (2) 872
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 811-1949-High
Court granted leave to appeal on 1-10-1951Appeal to the Supreme Court -Whether
competent-Word "exercisable" in Art. 135-Construction of.
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 1-101951.
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.
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 873 too narrow and does not give full
and proper scope to the meaning of the word 'exercisable' in the Article.
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 subjectmatter 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
874 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
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 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 875 (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
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 Constitution 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 111 876
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 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 877 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 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.  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 plaintiff 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
owner879 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
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 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
"...... 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 880 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,
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.