Yellappagouda Shankargouda Patil Vs.
Basangouda Shiddangouda Patil [1960] INSC 38 (9 March 1960)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION: 1960 AIR 808 1960 SCR (3) 221
ACT:
Hereditary Office-Decree for partition of Watan
land upheld by Privy Council in appeal-Abolition of Privy Council's
jurisdiction-Issue of certificate by Collector-Application for cancellation of
decree, if can be entertained by the Supreme Court-Bombay Hereditary Offices
Act, 1874 (Bom. III of 1874), s. Abolition of Privy Council Jurisdiction Act,
1949 (V Of 1949), ss. 5, 8-Constition of India, Arts. 374(2), 135.
HEADNOTE:
The respondent brought a suit for partition
against the petitioner in respect of certain Watan lands. The trial court
decreed the suit but the High Court of Bombay reversed that decree.in appeal.
The Privy Council restored the decree of the trial court and an
Order-in-Council was drawn up accordingly. Execution of the said decree was
resisted by the petitioner on the ground that the lands in suit being
admittedly remuneration attached to the office of the Patil and as such
governed by the Bombay Hereditary Offices Act, 1874 (Bom. III of 1874) were not
liable to partition. A certificate under s. 1o of the Act was issued by the Collector
at the instance of the petitioner and the executing Court cancelled the
execution case. The respondent appealed to the High Court and that court
following its own Full Bench decision in Rachapa v. Amingouda, (1881) V Bom.
283, held the certificate to be invalid since it was not addressed to the Privy
Council which had passed the decree and set aside the order of the executing
court. Thereafter a fresh certificate under s. 1o of the Act was issued by the
Collector and addressed to this Court and the petitioner applied to this Court
under that section for the cancellation of the said decree granted by the
Order-in-Council, the Privy Council having ceased to have any jurisdiction in
the meantime. 'The question for decision was whether as a result of the
constitutional changes this court could be said to have passed the decree and
could entertain the petition.
Held, that the petition must be allowed.
The combined effect of ss. 5 and 8 of the
Abolition of the Privy Council jurisdiction Act, 1949, and Arts. 374(2) and 135
of the Constitution was that this petition which lay to the Privy Council
before it ceased to exercise its jurisdiction, could be presented to the
Federal Court before the commencement of the Constitution and thereafter to
this Court.
The certificate issued by the Collector and
addressed to this Court was, therefore, valid and must be given effect to.
CIVIL APPELLATE JURISDICTION: Civil Misc.
Petition NO. 530 of 1959.
222 Petition for cancellation of the decree
dated November 25, 1949, granted to the Respondent by the Order-in-Council in
Privy Council Appeal No. XI of 1948.
C. K. Daphtary, Solicitor-General for India and B. R. L. Iyengar, for the petitioner.
K. R. Bengeri and A. G. Ratnaparkhi, for the
respondent.
1960. March 9. The Judgment of the Court was
delivered by GAJENDRAGADKAR, J.-This petition has been made under s. 10 of the
Bombay Hereditary Offices Act, 1874 (hereinafter called the Act), for
cancellation of the decree granted to the respondent by the Order in Council dated
November 25, 1949, in so far as the said decree purports to operate on or
include any right to the office of the Patilki and 11 Watan lands attached
thereto. These lands are situated at Kirtgeri in the Taluk of Gadag. They form
part of a Watan and, according to the revenue records, they have been assigned
as remuneration to the officiator for the time being under s. 23 of the Act.
The petitioner has obtained a certificate prescribed under s. 10, and he
contends that as a result of the said certificate this Court should cancel the
decree as claimed by him in the petition.
It appears that the respondent had filed a
suit against the petitioner in the Court of the First Class Sub Judge at
Dharwar (Civil Suit No. 18 of 1934) and in the said suit he had claimed
partition and possession of the properties as an adopted son of Shiddangouda.
These properties were and are in the possession of the petitioner. The trial
court passed a decree in favour of the respondent. The petitioner then
preferred an appeal, No. 182 of 1935, in the High Court of Bombay. His appeal
was allowed and the decree passed by the trial court was reversed. The
respondent then challenged the High Court decree and went up to the Privy
Council in Appeal No. 11 of 1948. His appeal was allowed, and the Privy Council
held that the decree passed by the trial court should be restored. Accordingly
an Order-in-Council was drawn up on November 25, 1949; under this order 223 the
respondent was entitled to recover by partition a half share in the properties
in suit. He was also entitled to mesne profits, past and future, till the
recovery of possession or three years and an enquiry was directed in that
behalf. Amongst the properties in which the respondent had thus become entitled
to claim a share are the 11 lands in question.
In due course the respondent filed an
execution application Darkhast No. 41 of 1950, in the Court of the Subordinate
Judge at Dharwar. The petitioner then contended that the 11 lands in question
were governed by the provisions of the Act, they were assigned as remuneration
to the office of the Patil, and as such they could not be partitioned. It was
also urged on his behalf that in the original suit the respondent had not
claimed any declaration that he was entitled to the office of Patil and that
without such a claim the 11 lands in question could not be claimed by the
respondent. In support of these pleas the petitioner relied upon the provisions
of the Act contained in ss. 7, 10, 11, 13, 24, 25 and 36.
Pending the execution proceedings the
petitioner applied for the grant of the prescribed certificate under s. 10 of
the Act, and a certificate was accordingly issued by the Collector addressed to
the Civil Judge, Senior Division, Dharwar. Thereupon the said court acted upon
the certificate and cancelled the execution process which had been issued
against the Patilki-assigned property of Kirtgeri. The respondent challenged
the said order before the Bombay High Court and his challenge was upheld by the
said High Court. The High Court followed its own earlier Full Bench decision in
Rachapa v. Amingouda (1) and held that the certificate issued by the Collector
under s. 10 was invalid in that it was addressed not to the Privy Council which
was the court which passed the decree but to the Civil Judge at Dharwar. In the
result the order cancelling the execution process which had been passed by the
executing court was set aside and a direction was issued that the execution
proceedings should proceed according to law.
Thereafter the petitioner applied for a
reissue of a certificate under s. 10 and prayed that the certificate (1) (1881)
V BOM. 283.
224 should be addressed to this Court as in
the meanwhile the Privy Council had ceased to have any jurisdiction and this
Court had become its successor. A certificate has accordingly been issued on
January 13, 1958, addressed to this Court. The certificate says that the
property in question has been assigned as remuneration to the office of Patil
and as such it is inalienable and not liable to process of civil court and so
the process of attachment levied against the said property should be removed
and the decree in so far as it relates to the said property should be
cancelled. It appears that after this certificate was issued by the Assistant
Commissioner, Gadag Division, the respondent filed an appeal to the Deputy
Commissioner, Dharwar. His appeal, however, failed and the certificate issued
by the Assistant Commissioner has been confirmed. It is with this certificate
that the petitioner has moved this Court for the cancellation of the decree in
question in regard to the 11 properties at Kirtgeri.
On behalf of the respondent it has been urged
before us that the decision of the Bombay High Court operates as res judicata
and so, in view of the said decision, the present certificate also should be
held to be invalid. The argument is that the effect of the decision of the
Bombay High Court is that the certificate should have been addressed to the
Privy Council, and since it is addressed to this Court it is invalid. We are
not impressed by this argument. What the Bombay High Court has held is that the
certificate must be issued to the court which passed the decree, and if in law
this Court can be said tobe in effect and in substance the Court that pssed the
decree then the Certificate must be held to be perfectly valid. Therefore,
there is no substance in the argument of res judicata. The main 'question which
falls to be considered is whether this Court can,. in view of the
constitutional changes which have taken place in the meantime, be said to be
the Court that has passed the present decree.In our opinion, the answer to this
question must be in favour of the petitioner. Lot us, therefore, proceed to
consider the relevant statutory Provisions.
225 Section 2 of the Abolition of the Privy
Council Jurisdiction Act, 1949, has provided, inter alia, that as from the
appointed day which was October 10, 1949, the jurisdiction of His Majesty in
Council to entertain' appeals and petitions' from or in respect of any judgment,
decree or order of any court or tribunal within the territory of India shall
cease save hereinafter provided. Section 4(b) provides that nothing contained
in s. 2 shall affect the jurisdiction of His Majesty in Council to dispose of
any Indian appeal or petition on which the, Judicial Committee has, after
hearing the parties, reserved judgment order.
This provision applied to 'Appeal No. 11 of
1948 between the parties thenpending before the Privy Council. Section 5
conferson the Federal Court corresponding jurisdiction to entertain and dispose
of Indian appeals and petitions which His Majesty in Council has, whether by
virtue of His Majesty's prerogative or otherwise, immediately before the
appointed day. In other words, after the appointed day the Federal Court was
given jurisdiction to entertain and dispose of not only Indian appeals but also
petitions, and that would naturally include. a petition like the present with
which we are dealing. Section 8 dealt with the effect of the orders of His Majesty
in Council; 'it provided that any order made by His Majesty in Council on an
Indian appeal or petition, whether before or after the appointed day shall, for
all purposes, have the effect not only asan order of His Majesty in Council but
also as if it were an order or decree made by the Federal Court in exercise of
the jurisdiction conferred by this Act. This then was the position with regard
to the jurisdiction and powers of the Federal Court vis-a-vis the appeals and
petitions pending before the Privy Council and orders made on them.
The next relevant provisions are contained in
Art. 374 and Art. 135 of the Constitution. Art. 374(2) provides that all suits,
appeals and proceedings, Civil or Criminal' pending in the Federal Court at the
commencement of the Constitution, shall stand removed to the Supreme Court, and
the Supreme Court shall have jurisdiction to hear and determine the same and
the judgments and orders of the Federal 29 226 Court delivered or made before
the commencement of the Constitution shall have the same force and effect ,as
if they had been delivered or made by the Supreme Court. It is with the latter
part of Art. 374(2) that we are concerned in the present petition. We have 'I
already seen that the Order in Council issued in accordance with the judgment
of the Privy Council in Appeal No. 11 of 1948 had to be treated as if it was an
order and decision of the Federal Court under the relevant provisions of the
Act of 1949. Now another fiction has been introduced by Art. 374(2) and the said
order and decree has now to be treated as if the decree had been passed and the
'order had been made by the Supreme Court. That takes us to Art. 135. This
article provides that 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 Art. 133 or Art.
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. We have
already noticed that the Federal Court had jurisdiction to deal with a petition
like the present before the commencement of the Constitution ; that
jurisdiction can now be exercised by this Court as a result of Art. 135. The
position, therefore, is that the petition which could have been presented to
the Privy Council if the jurisdiction of the Privy Council had not been
abolished could have been presented before the Federal Court before the
commencement of the Constitution and can be presented to this Court after the
commencement of the Constitution. We, therefore, feel no doubt that as a result
of the relevant statutory provisions to which we have referred the certificate
issued in the present case to this Court is valid and must be given effect to.
It is not disputed that the properties in
respect of which the certificate has been issued are properties assigned as
remuneration to Patilki I office and are governed by the provisions of the Act.
It is also conceded that if the certificate is duly issued under s. 10 of the
Act it makes it obligatory on the court to 227 cancel the decree in regard to
the properties covered by the certificate. Section 10 provides, inter alia,
that when it shall appear to the Collector that by virtue of, or in execution
of, a decree or order of any court any watan or any part thereof, or any of the
profits thereof, recorded as such in the revenue records or registered under
this Act, and assigned under s. 23 as remuneration of an officiator has or
have, after the date of this Act coming into force, passed or may pass without
the sanction of the State Government into the ownership or beneficial
possession of any person other than the officiator for the time being, the
court shall, on receipt of a certificate under the hand and seal of the
Collector, stating the particulars mentioned in the section, cancel the decree
or order complained of so far as it concerns the said watan or any part
thereof. The only objection against the validity of the certificate is that it
has been addressed to a wrong court. Since we have overruled that objection it
follows that portion of the decree which concerns the watan properties must be
cancelled.
In the result the petition is allowed and the
decree in question in so far as it purports to operate on or include any right
to the office of Patilki and watan lands attached thereto at Kirtgeri as
enumerated in the certificate is cancelled. Under the circumstances of this
case there will be no order as to costs.
Petition allowed.
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