Asrumati Debi vs Kumar Rupendra Deb Raikot And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 92 of 1952

Decision Date: 27 February 1953

Coram: B.K. Mukherjea, M. Patanjali Sastri, Vivian Bose, Natwarlal H. Bhagwati

In the matter titled Asrumati Debi versus Kumar Rupendra Deb Raikot and Others, the Supreme Court of India delivered its judgment on 27 February 1953. The opinion was authored by Justice B. K. Mukherjea and the bench was comprised of Justices B. K. Mukherjea, M. Patanjali Sastri, Vivian Bose, Natwarlal H. Bhagwati and Natwar Lal H. Bhagwati. The petitioner was Asrumati Debi and the respondents were Kumar Rupendra Deb Raikot together with other parties. The official citation of the decision appears as 1953 AIR 198 and 1953 SCR 1159, and the case has been referenced in subsequent reports including RF 1965 SC 507, RF 1970 SC 891, R 1971 SC 2337, R 1974 SC 1719, RF 1981 SC 1786, R 1988 SC 1531, amongst others.

The headnote of the judgment explains that an order directing the transfer of a suit, issued under clause 13 of the Letters Patent of the Calcutta High Court, does not constitute a “judgment” for the purposes of clause 15 of the same Letters Patent. Consequently, such an order is not appealable under the provisions of the Letters Patent because it neither resolves the substantive dispute between the parties nor terminates or disposes of the suit on any ground. The Court examined the meaning of the term “judgment” and referred to a series of precedents, including 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). The Court noted that the decision in Krishna Reddi v. Thanikachala (I.L.R. 47 Mad. 136) was disapproved in this context.

The case proceeded under civil appellate jurisdiction as Civil Appeal No. 92 of 1952, filed by special leave against the judgment and order dated 16 May 1951 of the High Court of Judicature at Calcutta. That order had been rendered by Judges Harries C.J. and Das J. and dismissed an appeal that challenged a prior order dated 25 April 1949, issued by Judge Banerjee in Extra-ordinary Suit No. 2 of 1948, which itself arose from Original Order No. 136 of 1949. Counsel for the appellant was represented by a senior advocate accompanied by an assistant, while counsel for the respondent was similarly instructed. The judgment of the Supreme Court was delivered by Justice Mukherjea. The appeal before this Court, taken on special leave, challenged the decision of the Calcutta High Court Appellate Bench, dated 16 May 1951, which had dismissed the appeal 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.

In this proceeding, the Court noted that the appeal was taken on a preliminary ground that the appeal was not competent in law, but that there was no dispute about the material facts of the case, which were confined within a short compass. On 7 August 1947, the plaintiff, Kumar Rupendra Deb Raikot, instituted Title Suit No 40 of 1947 in the Court of the Subordinate Judge at Jalpaiguri, West Bengal, seeking recovery of possession of a large estate known as Baikunthapur Raj situated in that district. The plaintiff alleged that, being the eldest son of the late Prosanna Deb Raikot, the last holder of the estate, he became entitled to the property upon his father’s death under a family custom that excluded all females from inheritance and followed the rule of lineal primogeniture in matters of succession. Prosanna Deb Raikot died in December 1946, and Asrumati Debi, the appellant before this Court, was his widow. She had no son and her only child was a daughter named Prativa. According to the plaintiff, his mother Renchi Debi, a Lepcha by birth, was another lawfully wedded wife of Prosanna, married in the form known as the “Gandharba form.” Prosanna had three sons by this wife, the plaintiff being the eldest. The plaintiff claimed that Asrumati had taken possession of the bulk of the estate on the death of her husband although she had no legal right to it, and that the suit was brought to evict her from those properties. In addition to Asrumati, the plaintiff also impleaded three other agnatic relations of the deceased, who were designated as defendants Nos 2 to 4, as well as his own two younger brothers. Asrumati filed her written statement on 19 January 1948, asserting as her main defence that there was no legal marriage between her husband and the plaintiff’s mother, the latter being only one of several mistresses of her husband. She denied the existence of any family custom that excluded females from inheritance. Defendants 2 to 4 also filed written statements, challenging the legitimacy of the plaintiff’s claim to succession and advancing their own rights as heirs under the customary law prevailing in the family.

Subsequently, on 30 April 1948, the plaintiff presented an application in the Original Side of the Calcutta High Court under clause 13 of the Letters Patent, praying that the suit filed in the Jalpaiguri court be transferred to the High Court for trial in its Extraordinary Original Civil Jurisdiction. The application was heard by Justice Banerjee, sitting singly, and his order dated 25 April 1949 allowed the transfer. The learned judge based his order substantially on the consideration that, in view of the atmosphere of prejudice created in the locality by supporters of the defendant, who wielded considerable influence in the district, the plaintiff might have a legitimate apprehension that he would not obtain a fair trial in the district court. Consequently, the transfer of the suit to the High Court was deemed necessary to ensure an impartial adjudication.

The plaintiff asserted that he might not obtain a fair trial in the district court. Against the order granting transfer, defendant number one filed an appeal before the Appellate Bench of the High Court of Calcutta. The learned judges, Trevor Harries C. J. and Das J., dismissed the appeal on the ground that the order under challenge did not constitute a “judgment” within the meaning of clause fifteen of the Letters Patent. The propriety of that dismissal was the subject of the present appeal before this Court. The Calcutta High Court, in holding the appeal to be incompetent, based its decision entirely upon an earlier pronouncement of a Division Bench of the same court. That earlier decision was delivered by Mookerjee A. C. J., sitting with Fletcher J., who held that an order for transfer of a suit made under clause thirteen of the Letters Patent was not a “judgment” within the meaning of clause fifteen. The learned judges relied on the authority of Sir Richard Couch C. J. as expressed in the well-known case of The Justice of the Peace for Calcutta v. The Oriental Gas Company, where the Chief Justice explained that “judgment” in clause fifteen means a decision affecting the merits of the dispute by determining some right or liability, whether final, preliminary or interlocutory. The identical question—whether an order for transfer made under clause thirteen amounts to a “judgment” for purposes of appeal—was expressly raised before the Madras and the Rangoon High Courts. The Madras High Court answered affirmatively, while the Rangoon High Court gave a definite negative answer. The Madras decision claimed conformity with a Full Bench ruling in Tuljaram v. Alagappa, where Sir Arnold White C. J., together with Krishna Swami Aiyar and Ayling JJ., defined “judgment” based on its effect on the suit rather than its form, stating that if the effect is to put an end to the suit or proceeding before the court, the adjudication is a judgment within the clause. This definition has been consistently followed in Madras without comment, and the Calcutta High Court has, on several occasions, shown a marked tendency to adopt the same interpretation.

The Court observed that a previous decision had stated, “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.” It pointed out that this formulation had been consistently followed in Madras without any objection and that the Calcutta High Court had, on several occasions, shown a clear inclination to adopt the same approach (4). By contrast, a Full Bench of the Rangoon High Court, presided over by Page C.J., expressed “a view altogether different from that of the Calcutta and the Madras High Courts as regards the meaning of the word 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. The Rangoon Full Bench held that, for the purposes of the Letters Patent, the term “judgment” signified a decree in a suit that determines the rights of the parties involved, rather than the definition found in section 2(9) of the Civil Procedure Code, which describes a judgment as the judge’s statement of the grounds of a decree. The Court cited authorities such as Dayabhai v. Muyugappa Chettiay, 13 Rang. 457 (F.B.) (1); 35 M 1 (F.B.) (2); 3 M.H.C.R. 384 (3); and 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 (4). The Court explained that a judgment, in its final and definitive sense, is an adjudication that conclusively resolves the rights of the parties on all issues raised in the suit. In contrast, a preliminary or interlocutory judgment is a decree that decides the entitlement to the relief claimed but still requires further proceedings before the suit can be fully disposed of. Apart from final and preliminary judgments as defined, every other decision is classified as an “order” and does not fall within the description of “judgment” under the relevant clause of the Letters Patent. Consequently, an order is not appealable unless a statute such as the Civil Procedure Code specifically provides a right of appeal. On this basis, an order directing the transfer of a suit from a subordinate court to the High Court cannot be considered a judgment, and therefore no appeal lies against it. This definition of “judgment” has been accepted in several decisions of the Nagpur High Court (1) and appears to be the view of the Allahabad High Court as well (2). However, a Full Bench of the Lahore High Court (’ ) declined to adopt this approach and chose to follow the tests laid down by the Calcutta and Madras High Courts. The Bombay High Court, from the outset, embraced the Calcutta view (4). In view

In view of the considerable divergence of opinion among the various High Courts, the Supreme Court may at some future stage need to examine in depth the principles underlying the differing views and to endeavour to define with certainty the true meaning and scope of the term ‘judgment’ as it appears in clause 15 of the Letters Patent of the Calcutta High Court and in the analogous clauses of the Letters Patent of the other High Courts. Nevertheless, the Court is relieved from undertaking such an inquiry in the present matter because it is satisfied that none of the approaches previously discussed would treat the order presently before it as a ‘judgment’ within the meaning of clause 15 of the Letters Patent. The Court notes the earlier authorities: Vide Kunwar Lal Singh v. Uma Devi, A.I.R. 1945 Nag. 156; Shankar Deo v. Kalyani, A.I.R. 1948 Nag. 85; Vide Shahzadi Begam v. Alakhnath, 57 All. 983 (F.B.); Shaw Hari v. Sonah Mal Beli Ram, I.L.R. 23 Lah. 491; and Vide Sonebai v. Ahmedbhai, 9 Bom. H.C.R. 398. The learned Chief Justice, Sir Richard Couch, defined a ‘judgment’ as a decision that determines some right or liability affecting the merits of the controversy between the parties. He further explained that, although an adjudication need not resolve the case on its merits to qualify as a ‘judgment’, it must constitute the final pronouncement of the court whose effect is to dispose of or terminate the suit or proceeding. This principle is illustrated by several passages from Sir Richard Couch’s own judgment, including the observation that this Court has previously adopted a broader construction of the word ‘judgment’ in clause 15 by permitting appeals where a plaint has been rejected as insufficient, where a claim is barred by limitation, and where orders have been made in execution. The Court held that those situations still satisfy the definition of a judgment, but emphasized that the present order should not be treated alike. The Court distinguished an order admitting a plaint, which merely prepares the case for determination and does not decide any right, from an order rejecting a plaint, which finally determines, for the court making the order, that the suit as presented will not proceed. Accordingly, the rejection of a plaint constitutes a judgment in the proper sense of the term. Consequently, it cannot be said that, according to Sir Richard Couch, every judicial pronouncement affecting a right or liability between the parties automatically qualifies as a ‘judgment’, because in that

The Court explained that the law does not permit an unlimited number of judgments to arise during a single suit or proceeding; instead, a judgment must be the final pronouncement that conclusively ends the proceeding as far as the court that makes it is concerned. Such a judgment inevitably determines some right or liability, although it is not essential that the decision be reached on the merits of the case. This principle, which can be inferred from the observations of Sir Richard Couch, Chief Justice, was later adopted as the foundation of the definition of “judgment” by Sir Arnold White, Chief Justice, in a Full Bench decision of the Madras High Court that has been cited earlier. According to Chief Justice White, the test for deciding whether an order qualifies as a judgment is to examine the effect of that order on the specific suit or proceeding in which it was issued. If the effect of the order is to bring the suit or proceeding to an end, the order constitutes a judgment; otherwise, it does not. This definition therefore embraces not only final decisions in ordinary suits or actions but also final orders issued in other types of proceedings that commence with applications. Consequently, any final order passed on an application that arises during the course of a suit—such as an order granting or refusing a party’s request for an adjournment or for the examination of a witness—falls within the meaning of a judgment. The Court noted that this reasoning appears to be the basis for the learned Chief Justice’s qualification of the general rule, when he stated 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.” The Court further clarified that its purpose was not to formulate an exhaustive definition of the word “judgment” as employed in clause fifteen of the Letters Patent; rather, it had merely identified the essential characteristics of a judgment as recognized by both the Calcutta and the Madras High Courts. In the Court’s view, an order made under clause thirteen of the Letters Patent fails to satisfy the criteria of a judgment laid down by either of those High Courts.

The Court then turned to the specific question that must be resolved in an application under clause thirteen of the Letters Patent, namely whether a particular suit should be removed from any court that is under the superintendence of the High Court and tried and determined by that High Court as a court of extraordinary original jurisdiction. The Court observed that, where the parties to the suit are not in agreement on this point, a genuine controversy necessarily arises that must be settled by the court. In the case presently before the Court, a single Judge of the High Court had already addressed this issue and had decided in favour of the plaintiff in the suit. The Court cited the authority of Tuljaram v. Alagappa, 35 Mad. 1, to illustrate the procedural context and to underscore that the determination of jurisdictional removal under clause thirteen is a distinct matter that must be examined in light of the preceding principles concerning what constitutes a judgment.

The Court observed that a decision on every point contested by the parties to a suit does not automatically become a “judgment.” In the present matter, the order that was made did not address the substantive merits of the dispute between the parties, nor did it bring the suit to an end on any basis. Consequently, the Court held that an order directing the transfer of a suit cannot be treated in the same manner as an order that rejects a plaint or dismisses a suit on a preliminary ground, as referred to in the earlier observations of Couch C.J. The Court explained that when a plaint is ordered to be rejected or taken off the file, the suit is finally disposed of by the court issuing that order; the suit is considered concluded, and it is irrelevant that the aggrieved party might later commence a new suit in the same or another forum after correcting the defects that led to the rejection. By contrast, a transfer order made under clause 13 of the Letters Patent is fundamentally different. First, such an order is not issued by the court in which the suit originally lies; it is an order made by a higher court directing the matter to be heard elsewhere. Second, the transfer order does not terminate the suit. The suit remains alive and must be tried by the receiving court, which is required to continue the proceedings from the point at which they were left in the court of original jurisdiction. Counsel for the appellant, Mr Chatterjee, heavily relied on the Calcutta High Court decision in Hadjee Ismail v. Hadjee Mahomed, where Court C.J. and Justice Pontifex held that an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent constituted a “judgment” within the meaning of clause 15 and was therefore appealable. Mr Chatterjee noted that the Bombay High Court followed that reasoning in Vaghoji v. Camaji and argued that there is no substantive distinction between such an order and an order transferring a suit under clause 13. He further pointed to the Madras High Court judgment in Krishna Reddy v. Thanikachala, which adopted the same line of reasoning, to support his contention that the transfer order should likewise be treated as a judgment subject to appeal. The Court, however, rejected this line of argument. It expressed the view that the reasoning advanced by the learned counsel was unsound because a clear distinction exists between an order that rescinds or refuses to rescind leave to sue under clause 12 and an order that removes a suit from a subordinate court to the High Court under clause 13. The Court emphasized that this essential difference can be seen from the observations of Sir Arnold White C.J. in the earlier Madras Full Bench decision, which the later Madras High Court judges apparently failed to consider adequately. Accordingly, the Court concluded that the transfer order under clause 13 does not meet the criteria of a “judgment” as defined by clause 15 and therefore cannot be challenged by way of appeal in the same manner as the orders discussed in the cited precedents.

The Court referred to the decision of the Bombay High Court in Vaghoji v. Camaji and recorded the observations of White C.J. In that decision it was held that an appeal lies from an order that dismisses a Judge’s summons to show cause why leave granted under clause twelve of the Letters Patent should not be rescinded and the plaint taken off the file. The Court noted that the adjudication sought, if made, would have disposed of the suit, and that an order made on an application to revoke a submission to arbitration would likewise be appealable.

The Court explained that leave granted under clause twelve of the Letters Patent constitutes the very foundation of a suit, because the suit is instituted on the basis of that leave. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that the order effecting the rescission is a judgment. The Court cited the authorities (1) I.L.R. 29 Bom. 249, (2) I.L.R. 47 Mad. 136 and (3) Vide Tuljaram v. Alagappa 35 Mad. 1 (F.B.).

The Court then considered the opposite situation, where an order dismisses the Judge’s summons to show cause why the leave should not be rescinded. In that case, as Sir Lawrence Jenkins pointed out (1), a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against the defendant as far as the court making the order is concerned. The Court observed that such an order falls within the category of a “judgment” as defined in the Calcutta cases.

The Court stated that it need not express a final opinion on the propriety of the view expressed by Sir Lawrence Jenkins. For the purpose of the present appeal it was sufficient to emphasise that there is a material difference between an order refusing to rescind leave granted under clause twelve of the Letters Patent and an order made under clause thirteen that directs the removal of a suit from one court to another. The Court found no good reason to apply the same principle to both types of orders.

Consequently, the Court held that the view adopted by the Bombay High Court was correct. The appeal was therefore dismissed with costs. The appeal was dismissed. The appellant was represented by an agent, P. K. Bose, and the first respondent was represented by an agent, Sukumnar Ghose, appearing for P. C. Dutt.