Gulab Rai & ANR Vs. Puniya 
INSC 201 (7 October 1965)
07/10/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 637 1966 SCR (2) 102
Rajasthan High Court Ordinance 1949 (Raj. 15
of 1949), cl.
18--Application under Guardian & Wards
Act-Appeal to Single Judge-If further appeal to Division Bench competent.
Guardian & Wards Act, 1890 (8 of 1890),
ss. 47 and 48-Scope of.
The respondent's application under s. 25 of
the Guardians and Wards Act for the custody of respondent's daughter was
rejected by the Civil Judge. When the decision was reversed in appeal by a
single Judge of the Rajasthan High Court, the appellants preferred an appeal to
the Division Bench under cl. 18 of the Rajasthan High Court Ordinance. This was
dismissed on the ground that the appeal was incompetent having regard to sq. 47
and 48 of the Guardians and Wards Act. In appeal to this Court,
HELD: The appeal before the Division Bench of
the Rajasthan High Court under cl. 18(1) of the Ordinance was competent.
[106 H] The competence of an appeal before
the Division Bench will have to be judged by the provisions of cl. 18 of the
Ordinance itself and s. 48 of the Act has no restrictive impact. Section 48
saves the provisions of s. 47 of the Act and s. 115 of the Code of Civil
Procedure; and considered by them the provisions of s. 47 do not create any bar
against the competence of an appeal under cl. 18(1) of the Ordinance where the
appeal permitted by s. 47 is heard by a single Judge. [106 G] Section 48
attaches finality to the order passed by the trial Court subject to the
provisions prescribed by s. 47 of the Act and s. 115 of the Code of Civil
Procedure. [106 E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 729 of 1964.
Appeal by special leave from the order dated
February 1964 of the Rajasthan High Court in D.B. Civil Appeal No. 2 of 1963.
O. P. Varma, for the appellants.
Mohan Behari Lal, for the respondent.
The Judgment of the Court was delivered by
Gajendradkar, C.J. This appeal by special leave arises from an application made
by the respondent Puniya in the Court of the Senior Civil Judge at Jhalawar
under S. 25 of the Guardians and Wards Act, 1890 (No. 8 of 1890) (hereinafter
called 'the Act'), for the custody of his daughter Mt. Chitra. To this
application, the 103 respondent had impleaded the two appellants, Gulab Bai and
her, husband Onkar Lal. The respondent is a Kumhar by caste, whereas the
appellants are fat. The respondent's case was that the minor Chitra who was
about 11 years of age at the date of the application, had been living with the
appellants for the last 4 or 5 years with his consent.
Whilst the minor girl was living with the
appellants, she used to come to spend some time with the respondent and his
wife; but for some time past, the appellants did not allow Chitra to visit her
parents. That is why the respondent thought it necessary to move the Court for
an order under s. 25 of the Act.
The claim thus made by the respondent was
disputed by the appellants. They alleged that the respondent and his wife had
lost some children in their infancy, and so, they decided to leave the minor in
the custody of the appellants, in the hope that their custody would save the
Accordingly, the minor was entrusted to the
appellants a few-hours after her birth and in fact, she was given away by the
respondent and his wife to the appellants to be looked after as if she was
their adopted child. During all these years, the appellants have looked after
the minor as their own child, have taken fond care of her, and have looked
after her education. The appellants. and the respondent and his wife are
neighbours, and the appellants denied the allegation made by the respondent
that they ever obstructed the minor from visiting her parents. According to the
appellants, recently an unfortunate incident had taken place between appellant
No. 1 and the wife of the respondent and that was the real cause of the present
application. They pleaded that as a result of the ugly incident that took place
between the two ladies, the minor was frightened and appeared to be disinclined
to visit her parents any longer.
On these pleadings, the parties led evidence
to support their respective contentions. The learned trial Judge held that the
child had been entrusted to the appellants soon after she was born, and that
she was looked after by the appellants as if she was their daughter. He felt
satisfied that in case the child was removed from the homely atmosphere which
she enjoyed in the house of the appellants, that would definitely be
detrimental to her welfare and would also affect her health, because she had
come to look upon the appellants as her parents. The learned trial Judge
examined the child in order to ascertain her own wishes, because he thought
that she had attained the age of discretion and could express her wishes
intelligently. He was convinced that the child definitely preferred to stay
with the appellants. Having come to the conclusion that it would be
inconsistent with the interests of the child to allow the application made by
the respondent, the learned Judge ordered that 104 appellant No. 2 should be
appointed the guardian of the person of the minor under ss. 7 and 8 of the Act.
He directed that the said Guardian shall give an undertaking to the. Court not
to remove the child from the territorial jurisdiction of the Court and not to
marry her without the permission of the Court. A direction was also issued that
the child shall not, of course, be married outside her caste without the
consent of her parents even if she so desires.
Against this order, the respondent preferred
an appeal before the Rajasthan High Court. This appeal was heard by a learned
single Judgeof the said High Court who reversed the decision of the trial
Judge. He came to the conclusion that it would be in the interests of the minor
to deliver her to the custody of the respondent and his wife. He held that
under s. 6 (a) of the Hindu Minority and Guardianship Act, 1958, the respondent
was entitled to be the guardian of his daughter in the absence of any
allegation or proof that he was in any way unsuitable to be such a guardian.
The learned single Judge also took into account the fact that the appellants
and the respondent belonged to different castes. and he held that since the
minor was then about 12 years of age, it was in her interest that she went back
to be looked after by her own parents. ion this view, the learned single Judge
set aside the order passed by the learned trial Judge by which appellant No. 2
was appointed the guardian of the minor and directed him to deliver the minor
to -the custody of the respondent. The order passed by the learned Judge
further provided that if the appellants did not deliver the minor Chitra to her
parents on the expiry of three months, the respondent shall apply for execution
of the order and that it would be executed as a decree under S. 25 (2) of the
Act by issue of a warrant under s. 100 of the Code of Criminal Procedure.
Against this decision, the appellants
preferred an appeal under clause 18 of the Rajasthan High Court Ordinance, 1949
(No. 15 of 1949) (hereafter called 'the Ordinance'). This appeal was dismissed
by a Division Bench of the High Court on the ground that the appeal was
incompetent having regard to the provisions of sections 47 and 48 of the Act.
The appellants then moved the High Court for certificate to prefer an appeal to
this Court, but the said application was dismissed. That is how the appellants
applied for and obtained special leave from this Court, and it is with the said
leave that this appeal has come before us.
The short question of law which arises for
our decision is whether the High Court was right in holding that the appeal
under clause 18 (1) of the Ordinance was incompetent and that raises the
-question about the construction of sections 47 and 48 of the Act.
105 Before dealing with this point, two
relevant facts ought to be mentioned. The Act was extended to Rajasthan by the
Part B States (Laws) Act, 1951 (Act III of 1951) on the 23rd February; 1951;
but before the Act was thus extended to Rajasthan, the Ordinance had already
Clause 18(1) of the Ordinance provides, inter
alia, that an appeal shall lie to the High Court from the judgment of one Judge
of the High Court; it excepts from the purview of this provision certain other
judgments with which we are not concerned. It is common ground that the
judgment pronounced by the learned single Judge of the High Court on the appeal
preferred by the respondent before the High Court, does not fall within the
category of the exceptions provided by clause 1 8 ( 1 ) of the ordinance; so
that if the question about the competence of the appeal preferred by the
appellants before the Division Bench of the High Court had fallen to be
considered solely by reference to clause 18(1), the answer to the point raised
by the appellants before us would have to be given in their favour. The High
Court has, however, held that the result of reading ss. 47 and 48 together is
to make the present appeal under clause 18(1) of the Ordinance incompetent. The
question which arises before us is : is this view of the High Court right ?
Section 47 of the Act provides that an appeal shall lie to the High Court from
an order made by a Court under sections specified in clauses (a) to (j)
thereof. Clause (c) of the said section refers to an appeal against an order
made under s. 25, making or refusing to make an order for the return of a ward
to the custody of his guardian. It is thus clear that the order passed by the
learned trial Judge in the present proceedings was an order under s. 25 of the
Act, and as such, is appealable under s. 47; and when as a result of the rules
framed by the Rajasthan High Court the present appeal was placed before a
learned single Judge of the said High Court for hearing and was decided by him,
his decision became appealable to a Division Bench of the said High Court under
cl. 1 8 (1 ) of the Ordinance. Thus far, there is no difficulty or doubt.
But the High Court has held that s. 48 of the
Act, in substance, amounts to a prohibition against an appeal to a Division
Bench under cl. 18(1) of the Ordinance; and that makes it necessary to examine
the provisions of s. 48 carefully. Section 48 reads thus "Save as provided
by the last foregoing section and by s.
622 of the Code of Civil Procedure, an order
made under this Act I shall be final, and shall not be liable to be contested
by suit or otherwise." 106 It is clear that what is made final by S. 48 is
an order made under this Act; and the context shows that it is an order made by
the trial Court under one or the other provision of the Act. This position is
made perfectly clear if the first part of s. 48 is examined. The finality
prescribed for the order made under this Act is subject to the provisions of s.
47 and s. 622 of the earlier Code which corresponds to S. 115 of the present
Code. In other words, the saving clause unambiguously means that an order
passed by the trial Court shall be final, except in cases where an appeal is
taken against the said order under S. 47 of the Act, or the propriety,
validity, or legality of the said order is challenged by a revision application
preferred under s. II 5 of the Code. It is, therefore, essential to bear in
mind that the scope and purpose of 'S. 48 is to make the orders passed by the
trial Court under the relevant provisions of the Act final, subject to the
result of the appeals which may be preferred against them, or subject to the
result of the revision applications which may be filed against them. In other
words, an order passed on appeal under s. 47 of the Act, or an order passed in
revision under S. II 5 of the Code, are, strictly speaking, outside the purview
of the finality prescribed for the orders passed under the Act, plainly because
they would be final by themselves without any such provision, subject, of
course, to any appeal provided by law or by a constitutional provision, as for
instance, Art. 136. The construction of s. 48, therefore, is that it attaches
finality to the orders passed by the trial Court subject to the provisions
prescribed by S. 47 of the Act, and s. 115 of the Code.
That is one aspect of the matter which is
The other aspect of the matter which is
equally material is that the provisions of S. 47 are expressly saved by S. 48,
and that means that S. 47 will work out in an ordinary way without any
restriction imposed by, S. 48. In considering the question as to whether a
judgment pronounced by a single Judge in an appeal preferred before the High
Court against one or the other of the orders which are made appealable by S. 47
will be subject to an appeal under clause 1 8 (1) of the Ordinance, S. 48 will
have no restrictive impact. The competence of an appeal before the Division
Bench will have to be judged by the provisions of cl. 18 itself. Section 48
saves the provisions of S. 47, and as we have already indicated, considered by
themselves the provisions of S. 47 undoubtedly do not create any bar against
the competence of an appeal under cl. 18(1) of the Ordinance where the appeal
permitted by s. 47 is heard by a learned single Judge of the High Court.
Therefore, we are satisfied that the High Court was in error in coming to the
conclusion that an appeal before a Division Bench of the said High Court under
clause 18 (1) of the Ordinance was incompetent.
107 It is true that in upholding the
respondent's plea that the appeal preferred by the appellants under clause
18(1) of the Ordinance was incompetent, the High Court has no doubt purported
to rely upon and apply its earlier decision in the case of Temple of Shri
Bankteshwar Balai Through Rampal v. The Collector, Ajmer(1). The said decision,
however, was concerned with the effect of the provisions prescribed by s. 66(3)
of the Ajmer Abolition of Intermediaries and Land Reforms Act (No. III of 1955)
in relation to clause 18 of the Ordinance, and since we are not called upon to
consider the correctness of the conclusion reached in that behalf, it is
unnecessary for us to examine whether the High Court was right in holding that
the provisions of the said s. 66(3) created a bar against the competence of
-the appeal under cl. 18(1) of the Ordinance. All that we are-concerned to deal
with in the present appeal is the effect of s. 48 of the Act, and in our
opinion, the High Court was in error in holding that s. 48 excluded the
application of clause 1 8 (1) of the Ordinance to the decision of the learned
single Judge in the present proceedings.
In this connection, we may incidentally refer
to the decision of this Court in Union of India v. Mohindra Supply Company(1).
In that case, this Court has held that an appeal against the appellate order of
the single Judge was barred under s. 39(2) of the Indian Arbitration Act, 1940,
because the expression "second appeal" in s. 39(2) means a further
appeal from an order passed in appeal under s. 39 (1) and not an appeal under
s. 100 of the Code, and as such, the said expression "second appeal"
includes an appeal under the Letters Patent. In substance. the effect of the
decision of this Court in the case of Mohindra Supply Co.(2) is that by enacting
s. 39(2) the Arbitration Act has prohibited an appeal under the Letters Patent
against an order passed under s. 39 (1). This decision again turned upon the
specific words used its. 39(1) & (2) of the Arbitration Act and is not of
any assistance in interpreting the provisions of s. 48 of the Act with which.
we are concerned in the present proceedings.
The question a,, to whether an appeal
permitted by the relevant clause of the Letters Patent of a High Court can be
taken away by implication, had been considered in relation to the provisions of
s. 588 of the Codes of Civil Procedure of 1877 and 1882. The first part of the
said section had provided for an appeal from the orders specified by clauses
(1) to (29) thereof, and the latter part of the said section had laid down that
the orders passed in appeals under this section shall be final. Before the
enactment of (1) LL.R. 14 Raj. 1.
(2)  3 S.C.R. 497 SupCI/66-8 108 the
present Code, High Courts in India had occasion to consider whether the
provision as to the finality of the appellate orders prescribed by S. 588
precluded an appeal under the relevant clauses of the Letters Patent of
different High Courts. There was a conflict of decisions on this point. When
the matter was raised before the Privy Council in Harrish Chunder Chowdhry v.
Kali Sundari Debia(1), the Privy Council thus tersely expressed its conclusion:
"It only remains to observe that their
Lordships do not think that section 588 of Act X of 1877, which has the effect
of restricting certain appeals, applies to such a case as this, where the
appeal is from one of the Judges of the Court to the Full Court".
Basing themselves on these observations, the
High Courts of Calcutta, Madras, and Bombay had held that S. 588 did not take
away the right of appeal given by clause 15 of the Letters Patent, vide Toolsee
Money Dassee & Others v. Sudevi Dassee & Others(2), Sabhapathi Chetti
& Others v. Narayanasami Chetti(3), and The Secretary of State for India in
Council v. Jehangir Maneckji Cursetji (4 ) respectively.
On the other hand, the Allahabad High Court
took a different view, vide Banno Bibi and others v. Mehdi Husain and
Others(5), and Muhammad Naim-ul-Lah Khan v. Ihsan-Ullah Khan(6). Ultimately,
when the present Code was enacted, S. 104 took the place of S. 588 of the
earlier Code. Section 104(1) provides that an appeal shall lie from the
following orders, and save as otherwise expressly provided in the body of this
Code or by any law for the time being in force, from no other orders. It will
be noticed that the saving clause which refers to the provisions of the Code,
or to the provisions of an law for the time being in force, gives effect to the
view taken by the Calcutta, Madras and Bombay High Courts. In fact, later, the
Allahabad High Court itself has accepted the same view in L. Ram Sarup v. Mt.
Kaniz Ummehani (7 ).
We have referred to these decisions to emphasise
the fact that even where the relevant provision of s. 5 8 8 of the earlier Code
made certain appellate orders final, the consensus of judicial opinion was that
the said provision did not preclude an appeal being filed under the relevant
clause of the Letters Patent of the High Court. In the present case, as we have
already indicated, S. 48 in terms saves the provisions of S. 47 of the Act as
well as those of S. 115 of the (1) 10 I.A. 4 at p. 17. (2) (1899) 26 Cal. 361.
(3) (1902))5 Mad. 555. (4) (1902) 4 Bom. L.R.
(5) (1889) 11 Alld. 375. (6) (1892) 14 AIId.
226 (F.P.) (7) A.I.R. 1937 Alld. 165.
109 Code, and that gives full scope to an
appeal under clause 18 of the Ordinance which would be competent when we deal
with the question about appeals under s. 47 of the Act considered by itself.
The result is, the appeal is allowed, the
order passed by the Division Bench of the High Court dismissing the appeal
preferred by the appellants under cl. 18(1) of the Ordinance on the ground that
it is incompetent, is set aside, and the said appeal is remitted to the High
Court for disposal in accordance with law. In view of the unusual circumstances
of this case, we direct that parties should bear their own costs incurred so