Dajisaheb Mane And Others vs Shankar Rao Vithal Rao Maneand Another

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 92 of 1953

Decision Date: 11 October 1955

Coram: Vivian Bose, B. Jagannadhadas, Syed Jaffer Imam, Chandrasekhara Aiyar

The case of Dajisaheb Mane and others versus Shankar Rao Vithal Rao Mane and another was decided on 11 October 1955 by a bench of the Supreme Court of India consisting of Justices Vivian Bose, B. Jagannadhadas and Syed Jaffer Imam, with Justice Aiyar, N. Chandrasekhara Das, Sudhi Ranjan Bose, Vivian Jagannadadas, B. Imam and Syed Jaffer cited as members of the bench. The petitioners were Dajisaheb Mane and others, while the respondents were Shankar Rao Vithal Rao Mane and another. The judgment was reported in 1956 AIR 29 and in 1955 SCR (2) 872. The principal constitutional provisions under consideration were Articles 133 and 135 of the Constitution of India. The matter arose from a suit for possession of certain immovable properties whose value exceeded Rs 10,000 but was below Rs 20,000. The trial court dismissed the suit on 20 December 1946. The Bombay High Court reversed that decision and granted a decree in favour of the plaintiffs on 8 November 1949. The defendants then sought leave to appeal to the Federal Court on 6 January 1950, and such leave was granted on 1 October 1951. The appeal subsequently reached the Supreme Court, raising the question of whether the appeal was competent under the Constitution and how the word “exercisable” in Article 135 should be interpreted.

The Court held that Article 133 did not apply to the present case because that article expressly concerned appeals against any judgment, decree or final order of a High Court situated within the territory of India, and the decree in question had already been altered by the High Court. The Court further observed that, on the date of the High Court’s decree, the defendants possessed a vested right to appeal to the Federal Court, since the property value met the statutory threshold and the certificate of leave to appeal was duly granted on 6 January 1950. Consequently, the appeal was deemed competent before the Supreme Court by virtue of Article 135, since the Federal Court, immediately prior to the commencement of the Constitution, had jurisdiction under existing law to entertain appeals from High Court decrees that reversed lower-court orders concerning properties valued at more than Rs 10,000. The Court rejected the respondents’ narrow construction that the jurisdiction under Article 135 was exercisable only when the matter was pending before the Federal Court and not until the appeal was admitted under Order XLV of the Civil Procedure Code. The Court concluded that a broader interpretation of “exercisable” was appropriate, thereby affirming the competence of the appeal under Article 135 and confirming the civil appellate jurisdiction of the Supreme Court in this matter.

Civil Appeal No. 92 of 1953 was filed under section 110 of the Civil Procedure Code against the judgment and decree dated 8 November 1949 rendered by the Bombay High Court in an appeal from Original Decree No. 195 of 1947. The original decree arose from the judgment and decree dated 20 December 1946 of the Court of Civil Judge, Senior Division, Sholapur in Special Suit No. 78 of 1945. The appellants were represented by the Solicitor-General of India together with counsel, while the respondents were represented by counsel appearing on their behalf. The appeal, dated 11 October 1955, was delivered by Justice Chandrasekhara Aiyar. The matter before the Court involved a reversing decree of the Bombay High Court in a suit concerning possession of certain immovable properties. The trial judge of the Senior Division in Sholapur had dismissed the suit, but the High Court subsequently allowed the plaintiff’s claim, the value of the properties having been fixed at more than ten thousand rupees. The original decree was entered on 20 December 1946 and the High Court decree granting the plaintiff’s claim was entered on 8 November 1949. The defendants applied for leave to appeal to the Federal Court on 6 January 1950. The High Court directed the trial court to determine the value of the property that formed the subject matter of the suit both at the time the suit was filed and at the date of the decree on appeal. On 22 January 1951 the lower court ascertained the value as indicated above. The High Court then granted leave to appeal on 1 October 1951, rejecting the plaintiff’s objections to the grant of such leave. The maintainability of the appeal was contested by counsel for the respondents in a lengthy argument. The principal contention raised was that article 133 of the Constitution applied, and that because the value was below twenty thousand rupees, no appeal could be entertained. The Court needed to examine the correctness of this argument. At the time of the High Court decree, the defendants possessed a vested right of appeal to the Federal Court because the properties met the requisite value, and on 6 January 1950 they sought a certificate of leave to appeal which was bound to be granted. The Constitution that established the Supreme Court as the final appellate authority for India came into force on 26 January 1950. The Court considered whether the vested right was extinguished by the abolition of the Federal Court. It noted that if the court to which an appeal lay was abolished without a substitute forum for pending matters or for lodging appeals, the vested right would inevitably perish. Consequently, the Court examined whether the Constitution, which created the Supreme Court, provided any mechanism for an appeal from a reversing decree of the High Court dated before the Constitution’s commencement, where the property value was ten thousand rupees or more, to be entertained and heard by the Supreme Court. Article 135 was then examined, which states that until Parliament provides otherwise, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which articles 133 or 134 do not apply if such jurisdiction and powers were exercisable by the Federal Court immediately before the commencement of the Constitution under existing law.

The Constitution provides that the Supreme Court shall possess jurisdiction and powers over any matter to which articles 133 or 134 do not apply, provided that such jurisdiction and powers were exercisable by the Federal Court immediately before the Constitution came into force, under any law then existing. Article 133, in full, stipulates that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court located in the territory of India if the High Court certifies one of the following: first, that the amount or value of the subject-matter of the dispute at the trial court and still in dispute on appeal is not less than twenty thousand rupees, or such other sum as Parliament may specify by law; second, that the judgment, decree or final order involves directly or indirectly a claim or question respecting property of that amount or value; or third, that the case is fit for appeal to the Supreme Court. In addition, where the appealed judgment, decree or final order affirms the decision of the lower court in any case other than those covered by sub-clause (c), the High Court must further certify that the appeal raises a substantial question of law. The Court observed that article 133 does not apply to the matter presently before it. The language of article 133 is prospective, and the judgment, decree or final order from which the appeal is sought is that of a High Court in the territory of India—that is, a High Court created under the Constitution. The expression “territory of India” includes the territories of the States. Article 214 mandates a High Court for each State, and clause (2) of that article declares that a High Court exercising jurisdiction over any Province immediately before the Constitution’s commencement shall be deemed to be the High Court for the corresponding State. For convenience the Court may refer to the pre-Constitution High Court as the Provincial High Court and to the post-Constitution High Court as the State High Court. Thus, a “High Court in the territory of India” means a State High Court, and article 133 governs appeals against any judgment, decree or final order in a civil proceeding of such a Court. Although article 133 is inapplicable, the Court must still determine whether the matter falls within the category of jurisdiction and powers that were exercisable by the Federal Court immediately before the Constitution began. It is unnecessary to recount in detail the earlier statutes that defined the jurisdiction of the Privy Council or the Government of India Act 1935, which established the Federal Court and limited its jurisdiction. It suffices to note that, at that time, the Federal Court possessed jurisdiction to entertain and hear appeals from a decree of a High Court that reversed the decree of a lower court.

In this matter the Court observed that for properties valued at more than Rs 10,000 the aggrieved party possessed an automatic right to approach the Federal Court without the necessity of obtaining any special leave. Such a right fell within the jurisdiction that was “exercisable” by the Federal Court. The Court rejected the narrow view that the jurisdiction was exercisable only after the appeal had been formally admitted under Order XLV of the Civil Procedure Code, holding that this construction failed to give the full meaning of the term “exercisable” as used in the constitutional provision. The Court explained that pending matters were governed by article 374(2) and that article 135 must also be given effect. Accordingly, the moment a decree of a High Court came into existence, the Federal Court’s jurisdiction to entertain an appeal from that decree became exercisable, subject only to the usual conditions of security and deposit, which were not material to the present question.

The Court then referred to paragraph 20 of the Adaptation of Laws Order, 1950 as amended in 1951, which states that nothing in that Order shall affect the operation of any existing law or any right, privilege, obligation or liability already acquired, accrued or incurred under such law. By that Order, section 110 of the Civil Procedure Code was adapted to the new constitutional situation and the monetary threshold for a right of appeal was raised from Rs 10,000 to Rs 20,000. However, the adaptation was held not to affect rights of appeal that had already accrued. The Court warned that accepting the respondents’ argument would extinguish a large number of appeals that, before the Constitution, entitled parties to approach the Federal Court automatically, and that such a result could not be imposed upon them simply because the Supreme Court had succeeded the Federal Court. An interpretation leading to that conclusion was to be avoided unless absolutely unavoidable.

The Court noted that the Full Bench decision of the Madras High Court in Gundapuneedi Veeranna and three others v. Gundapuneedi China Venkanna and seven others concerned a decree and a leave application that arose after the Constitution had commenced, and therefore did not decide the issue of pre-Constitution suits. The question of whether every appeal under section 110 of the Civil Procedure Code continued for suits filed before the Constitution was not required to be decided at this stage. On the merits, the Court found the appeal to be unassailable. It further recorded that the family whose genealogical tree had been set out in the trial judge’s judgment owned properties described as Sangam properties and Peta Velapur Mahal properties, all of which were of the watan character, with the Sangam lands being held by the eldest branch under the rule of lineal primogeniture.

In the matter before the Court, the inheritance of the family’s Sangam and Peta Velapur Mahal properties was determined by the rule of lineal primogeniture. The senior branch of the family was represented by Yeshwant Rao, who was the son of Panduranga Rao. When Yeshwant Rao and his widow Tarabai died in November 1924, the succession fell to the next senior line, which was the branch of the plaintiff, Shankar Rao. The Peta Velapur Mahal estate was divided into three equal shares, which were held respectively by Narsinga Rao, Vithal Rao and Krishna Rao. Their fourth brother, Shyama Rao, was excluded from any right to the property because he was declared insane. The present defendants numbered as 1, 2 and 3 and they claimed to represent the branch of Krishna Rao.

Following the death of Yeshwant Rao, Lakshman Rao—who was the grandfather of defendants 1 and 2—instigated civil suit No. 1064 of 1925 seeking a declaration that he was the nearest heir to the Sangam lands, the Peta Velapur Mahal properties and the cash income that was attached to the inam-dar’s right in Sangam. The Subordinate Judge delivered a declaratory decree stating that Lakshman Rao was indeed the nearest heir of the deceased Yeshwant Rao and, in that capacity, he was entitled to take possession of all the properties, except for certain items that were expressly excluded. The excluded items comprised the inam income, the Sangam lands listed in Schedule B of the decree, and a small parcel of property located in the same village and specified in Schedule G. Regarding those excluded items, the decree identified the first defendant, Shankar Rao—who is the plaintiff in the present suit—as the rightful heir. Upon appeal, the High Court affirmed the Subordinate Judge’s decree, modifying it only with respect to the cash allowance arising from the three villages of Nevare, Tambure and Limbagaon, which the High Court also held to belong to Shankar Rao (see I.L.R. [1953] Mad. 1079). Because the decree was solely declaratory, a subsequent action was required. Consequently, Narayana Rao, the son of Lakshman Rao, instituted a fresh suit—Civil Suit No. 2148 of 1936—aimed at recovering possession of the Peta Velapur Mahal properties situated at Mahalung, Lavang and Wafegaon. Along with possession, the suit also sought recovery of certain cash amounts and the value of ornaments and clothing.

The defendants, led by Shankar Rao, opposed the claim. Their principal argument was that, in exchange for the properties now sought by the plaintiff, a substantial quantity of land at Sangam had originally been transferred to Shankar Rao’s branch. They contended that unless those Sangam lands were returned, the plaintiff could not lay claim to the Velapur Mahal properties. The litigation concluded with a compromise decree. Under the terms of that decree, Shankar Rao was obligated to deliver actual possession of the disputed lands to the plaintiff as the owner, together with the payment of costs and mesne profits, while the plaintiff was required to abandon the remainder of his claim. The decree explicitly recorded that “The defendant has given up all the contentions in his written statement.” After Shankar Rao complied with the decree and took possession of the Velapur Mahal properties, the plaintiff subsequently initiated a new suit against defendants 1 and 2, seeking recovery of the Sangam lands that he had mentioned in his earlier written statement. The plaintiff alleged that those Sangam lands had been handed over to the defendants’ grandfather as part of a maintenance arrangement. In response, the defendants asserted that the Sangam lands claimed by the plaintiff had been transferred absolutely to their ancestor, Krishna Rao, under the deed dated 1867, and that they had been in the defendants’ possession as owners since that time.

The Civil Judge dismissed the plaintiff’s suit on the basis that the plaintiff’s claim—that the lands had been given to Krishna Rao for maintenance under the deed of 1867—was unfounded. Upon appeal by Shankar Rao, the High Court set aside that decree and interpreted the deed of 1867 as a document that did not convey absolute ownership to Krishna Rao; instead, the Court held that the specified Sangam lands had been transferred to him only provisionally and on condition that Krishna Rao later obtained possession of the Peta Velapur Mahal lands, which at that time were subject to a mortgage. The Supreme Court examined the deed closely and found no basis for the view adopted by the learned Judges on appeal. The deed, identified as Exhibit No. 35, appears on page 63 of the Paper Book, and the correctness of its translation was admitted. It was executed by Narsinga Rao of the first branch in favour of Krishna Rao of the last branch, who was the predecessor-in-title of defendants 1 to 3. After stating that Krishna Rao was entitled to a one-third share of the income from the Deshmuki rent of the family at Peta Velapur Mahal, the deed continued: “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 then listed the items by area, assessment and boundaries, and added: “In all six numbers have been given by us to you in lieu of your entire income from the said Mahal. Now, five and a 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, five Pavs of land is not in your Vahiwat this day. Hence on the expiry of six 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 concluded with a provision for the residence of the donee in an open space in the same village and further stated: “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 claim of inheritance left.” From this document it was clear that Narasinga Rao retained the one-third share of Krishna Rao’s branch in the Peta Velapur Mahal properties, and that, in exchange, Krishna Rao was given six items of the Sangam properties, the whole of which could not be placed in his possession at that time because a usufructuary mortgage over a portion of the lands was still in effect.

The Court observed that the items referred to could not at that moment be transferred into the possession and management of Krishna Rao because a usufructuary mortgage covered a portion of the lands, and that mortgage was scheduled to expire only after six years had elapsed from the date of its creation. The Court clarified that the lands described as mortgaged were the Sangam lands, not the Peta Velapur Mahal lands, a distinction that the High Court had mistakenly assumed. The Court noted that the deed contained no provision indicating that any properties were being given for the maintenance of Krishna Rao. Conversely, the Court pointed out that the deed contained two explicit references whereby any right to inheritance was expressly surrendered. The Court further stated that the plaintiff’s claim had already been relinquished before the trial Judge heard the matter. While acknowledging that an exchange of properties had taken place, the Court rejected the learned Judges’ view that such an exchange was provisional or conditional, and that the Sangam lands were to be returned when the Velapur Mahal properties were placed under the possession and management of Krishna Rao’s branch. The Court emphasized that to infer an implied arrangement would be to disregard the plain language of the deed. The Court described the disputed properties as precisely those items enumerated in the deed, noting that they had never been the subject-matter of the two earlier litigations. Since the date of Exhibit No. 35 in 1867, the Court observed that the items have continuously remained in the possession of the defendants’ branch as owners. The Court also recalled that the earlier suits of 1925 and 1936 were based on the premise that the defendants’ branch was the heir of the deceased, Yeshwant Rao. The Court concluded that no further question remained for consideration. Accordingly, the Court held that the trial Judge had correctly decided that the plaintiff’s claim to recover possession of the suit properties covered by the 1867 deed was wholly without merit. Consequently, the decree of the High Court was set aside and the decree of the trial Judge was restored, with the costs of the proceedings throughout to be paid by the plaintiff to the defendants.