DAJISAHEB MANE AND OTHERS versus SHANKAR RAO VITHAL RAO MANE AND ANOTHER.

CttANDRASEKH.~RA J.-This appeal is from a reversing decree of the Bombay High Court in a suit for the possession of certain immovable proper-· ties which w<ts dismissed hv the Civil Judge, Senior · Division, Sholapur. The value of the properties has been found to be over Rs. 10,000.

p. 873

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 subject-matter of the suit at the time of the rnit 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 the:cafter granted leave to appeal on 1-10-1951, overrn1ing the objections raised by the plaintiff to the grant of such lt:a-:e.

p. 873

The maintainability of this appeal has been questionc.I before us hy Mr. Dadachanji, learned counsel for the respondents. in a somewhat lengthv argument. His main contention was th~t article LB of the Constitution applies to the case, and as the value is below Rs. 20,0lJO, no appeal can be entertained. It is the correctness of this argument that we have to consider.

pp. 873–874

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 appeilate authority for India came into force on 26-1-195(). Did the vested right become extinguished with the abolition of the Federal Court? If the coun 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 rp examine whether the Constitution which ~rought the Supreme Court into being makes any p.:ovision 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 en~ertained and heard by the Supreme Court.

p. 874

Article 135 is in these terms:-

p. 874

"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 la\Vn.

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Article 133 runs as follows:-

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"(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-

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( 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 le5s than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

p. 874

(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

p. 875

( c) that the case is a fit one for appeal to the Superme Court; and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in ;:ny 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 ............ "

p. 875

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 Constitution. The territory of India comprises the territory of the States. Aricle 214 says that there shall be a High Court for each State, and clause (2) thereof provides that "the High Court ,:xerc;s:ng jurisdic~ion in relation to any Province immediately bdore the commencement of this Constitution shall be deemed to be the High Court for the corresponding St1te". \Ve can compendiously speak of the High Court prior to the Constitution and the I-Ii?h Court after the Constitution as the P;-ovincial Higi1 Court and the State High Court. A High Court in the territory of India means a State High Court, and J..rticle 133 provides for appeals against any judgment. decree or final order in a civil proceeding of such High Court.

p. 875

Though article 133 does not apply, we have still to see whether it is a matter as regar<ls which jurisdiction a'!d powers were exercisable by the Federal Court immediately before the commencement of the Constitution. It is unnecessary to refer in detail the earlier enactments defining the jurisdiction of the Privy Council, and the Government of India Act, 1935 establishing the Federal Court and conferring a lim;tcd jurisdiction on the same. It is sufficient to pohr out that as the law then stood, the Federal Court had jurisdiction to entertain and hear appeals from a decree of a High Court which reverse<l the lower court's <lecree as re.!,!ards properties of the value of more than Rs. 10,000. The aggrieved p.rtv had a right to go before it, without any special leave l:eing 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 XL V of the Civil Procedure Code is too narrow, and doc; 110t give full and prooer scope to the meanin!;( of the word "exercisable" in the. article. Pending: matten 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 F c<leral Court to hear an appeal from that decree became exercisable. provided certain conditions as to security and deposir were complied with, which are not material for present purpose.

pp. 875–876

Reference may be made here to paragraph 20 of thc- Adaptation of Laws Order, 1950, as amended in 195], which provides:

p. 876

"Nothing in this Order shall affect the previnm operation of, or anvthing duly done or suffered under, any existing law, or anv 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 "' to value was raised from 10,0UO to 20,000. What 1s provided is that this adaptation will not affect the right of appeal already accrued.

p. 876

If we accede to the argument urged by the respon · dents, we shall be shutting out altogether a large number of appeals, where the parties had an automatic right to go before the Federal Court befor~ the Con::titution and which we must hold was taken a'"°"'i from ·them for no fault of their own, merely bec;use the Supreme Court came into existence in phce of the Federal Court. An interpretation or 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 G1111dapuneedi Tleeranna and three others v. Gundapuneedi China Tl enkanna and seven others( was a case where the decree of the High Court ~md 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.

pp. 876–877

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 Jar.,Js were held by the eldest branch represented by Yeshwant Rao (son of Panduranga Rao) bv right of lineal pnmogeniture. When Yeshwant Rao and hi~ 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 R:io, 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 br:mch. After Yeshwant Rao's death, Lakshman Rao, the grandfather of defendants 1 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 th~ dee.eased Yeshwant Rao, and had a right in such capacity to take possession of all the propLrtie~, excluding the inam income and the Sangam laPLls specified in Schedule B of the decree and a small item of prooertv 5ituated in the same vi,llage and specified in Schedule G. As regards the excluded items, Shankar 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 decb·ed to belong to Shankar Rao.

pp. 877–878

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 V elapur 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 tbat 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 V elapur 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 meme profits and the plain-· tiff was to abandon the rest of the claim. The decree states, "The defendant has given up all the contentions in his written statement".

p. 878

After possession was taken of the V elapur Mahal properties under the decree, the plaintiff, · Shankar Rao, brought this suit to recover from defendants 1 and 2 the Sangam lands to which he referred in his earlier written statement alleging that they were gi\·cn 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 pbin~ tiff), the High Court reversed this decree construing the deed of 1867 as a deed under which absolute ownership was not transferred to Krishna Rao and that the specified items of Sangam lands were given to hiw provisionally and conditionally till Krishna Rao obtained possession of the Peta V elapur Mahal lands which were then under a mortgage.

pp. 878–879

V/e 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 i~; 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 Vclapur Mahal, it proceeds to say,

p. 879

" ........ In lieu of the land of that Mahal and in respect of the cash aliowance 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 :

p. 879

"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 Ramch:mdra 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 village. It further states :

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" ...... There are four shops and a wada at· the; Kasha of Velapur, and a one-third share thereof has beeo allotted to your share over which we have no claim of inheritance left".

pp. 879–880

It is obvious from this document that the one-third share of Krishna Rao's branch in the Peta Velapm 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 V elapur Mahal lands as wroPgly 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 posse:ssion and management of Krishna Rao's branch. To say 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. 1t 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, Y eshwant Rao.

p. 880

There is no other question which arises for discussion or decision. It follows that the trial Judge was right in hok!ing 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 In the defendants.

p. 880