Yellappagouda Shankargouda Patil vs Basangouda Shiddangouda Patil

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

Court: Supreme Court of India

Case Number: Civil Misc. Petition NO. 530 of 1959

Decision Date: 9 March, 1960

Coram: P.B. Gajendragadkar, K.N. Wanchoo

In this matter the Supreme Court of India examined an application filed by Yellappagouda Shankargouda Patil against Basangouda Shiddangouda Patil, and rendered its decision on 9 March 1960. The case was heard by a two‑judge bench composed of Justice P. B. Gajendragadkar and Justice K. N. Wanchoo, and it appears in the law reports at 1960 AIR 808 and 1960 SCR (3) 221. The dispute revolved around a decree for partition of certain Watan lands that had originally been granted by the trial court, overturned by the High Court of Bombay, and subsequently restored by the Privy Council; the decree was then effected by an Order‑in‑Council. The petitioners argued that the lands in question constituted remuneration attached to the hereditary office of Patil and were therefore governed by the Bombay Hereditary Offices Act, 1874 (Bombay III of 1874), and could not be subject to partition. The petition further sought cancellation of the decree on the ground that the Privy Council’s jurisdiction had been abolished by the Abolition of the Privy Council Jurisdiction Act, 1949 (V of 1949), and that the constitutional provisions of Articles 374(2) and 135 of the Constitution of India applied.

The factual background disclosed that the respondent had filed a suit for partition of the disputed Watan lands, and the trial court had decreed in favour of the respondent. The High Court of Bombay reversed that decree on appeal, but the Privy Council reinstated the trial‑court decree and an Order‑in‑Council was issued to enforce it. The petitioner resisted execution, asserting that the lands formed part of the remuneration for the Patil office and were therefore exempt from partition under the Bombay Hereditary Offices Act. Consequently, the Collector issued a certificate under section 10 of the Act on the petitioner’s request, and the executing court cancelled the execution proceedings. The respondent appealed this cancellation to the High Court, which, relying on its own full‑bench decision in Rachapa v. Amingouda (1881) V Bombay 283, held that the certificate was invalid because it was not addressed to the Privy Council, which had originally passed the decree, and it set aside the executing court’s order. Thereafter a fresh certificate under section 10 was issued by the Collector, this time addressed to the Supreme Court, and the petitioner filed a petition under the same section seeking cancellation of the Order‑in‑Council decree, noting that the Privy Council had by then ceased to exercise jurisdiction.

The principal question for determination was whether, in view of the constitutional changes, the Supreme Court could be said to have passed the decree and could therefore entertain the petition for its cancellation. The Court held that the petition must be allowed. It observed that the combined operation of sections 5 and 8 of the Abolition of the Privy Council Jurisdiction Act, 1949, together with Articles 374(2) and 135 of the Constitution, meant that a petition originally addressed to the Privy Council before that body lost its jurisdiction could be presented to the Federal Court before the commencement of the Constitution and subsequently to this Court. Accordingly, the certificate issued by the Collector and addressed to the Supreme Court was deemed valid and was to be given effect. The judgment affirmed the petition for cancellation of the decree dated 25 November 1949, which had been granted to the respondent by the Order‑in‑Council, and it was rendered under Civil Miscellaneous Petition No. 530 of 1959.

In Privy Council Appeal No XI of 1948, the petitioner was represented by counsel that included the Solicitor‑General for India, while the respondent was represented by his own counsel. The judgment was delivered on 9 March 1960 by Justice Gajendragadkar. The petitioner filed the present petition under section 10 of the Bombay Hereditary Offices Act, 1874, hereinafter referred to as the Act, seeking the cancellation of a decree that had been granted to the respondent by an Order‑in‑Council dated 25 November 1949. The petitioner argued that the decree should be set aside to the extent that it affected any right to the office of Patilki and the eleven Watan lands that were attached to that office.

The eleven lands in question were located at Kirtgeri in the taluk of Gadag. According to the revenue records, these lands formed part of a Watan and had been assigned as remuneration to the incumbent officer pursuant to section 23 of the Act. The petitioner had obtained a certificate prescribed under section 10 of the Act and submitted that, on the basis of this certificate, the Court should cancel the decree as he claimed in the petition.

Historically, the respondent had instituted a suit against the petitioner before the Court of the First Class Sub‑Judge at Dharwar, identified as Civil Suit No 18 of 1934. In that suit the respondent, claiming to be an adopted son of Shiddangouda, sought partition and possession of the properties. Those properties were at the time, and remained, in the petitioner’s possession. The trial court ruled in favour of the respondent and passed a decree granting him the relief sought.

The petitioner appealed the trial court’s decree, filing Appeal No 182 of 1935 before the High Court of Bombay. The High Court allowed the petitioner's appeal and consequently reversed the decree of the trial court. Dissatisfied, the respondent challenged the High Court’s decision and appealed further to the Privy Council, filing Appeal No XI of 1948. The Privy Council allowed the respondent’s appeal and held that the decree originally passed by the trial court should be restored.

Following the Privy Council’s decision, an Order‑in‑Council was issued on 25 November 1949. Under that order the respondent was entitled to recover, by partition, a one‑half share in the disputed properties. He was also entitled to mesne profits, both past and future, until possession was recovered or for a period of three years, and an inquiry was ordered to determine the extent of those profits. The eleven lands at Kirtgeri were among the properties for which the respondent thus obtained a share.

Subsequently, the respondent filed an execution application, identified as Darkhast No 41 of 1950, before the Court of the Subordinate Judge at Dharwar, seeking to enforce the Order‑in‑Council. The petitioner opposed the execution, contending that the eleven lands were governed by the provisions of the Act, had been assigned as remuneration to the Patil office, and therefore could not be subject to partition. The petitioner further argued that, in the original suit before the trial court, the respondent had never claimed a declaration that he was entitled to the office of Patil, and that without such a claim he could not assert any right over the eleven lands.

In the proceedings before the trial court, the petitioner argued that the eleven lands that formed the subject of the dispute could not be claimed by the respondent because they were governed by the provisions of the Act and had been assigned as remuneration to the office of Patil, rendering them ineligible for partition. To support this contention, the petitioner relied on the statutory provisions contained in sections 7, 10, 11, 13, 24, 25 and 36 of the Act. While the execution proceedings were pending, the petitioner applied for a certificate prescribed under section 10 of the Act, and such a certificate was issued by the Collector addressed to the Civil Judge, Senior Division, Dharwar. Acting on the basis of that certificate, the Civil Judge cancelled the execution process that had been issued against the Patilki‑assigned property of Kirtgeri. The respondent challenged the cancellation order before the Bombay High Court, and the High Court upheld the respondent’s challenge. In doing so, the High Court relied upon its earlier Full Bench decision in Rachapa v. Amingouda (1) (1881) V BOM. 283., holding that the certificate issued by the Collector under section 10 was invalid because it had been addressed to the Civil Judge at Dharwar rather than to the Privy Council, which was the court that had originally passed the decree. Consequently, the High Court set aside the order cancelling the execution process and directed that the execution proceedings should continue in accordance with law. Following this, the petitioner applied for a fresh certificate under section 10, requesting that the new certificate be addressed to this Court, on the ground that the Privy Council had ceased to possess jurisdiction and that this Court had become its successor. Accordingly, a certificate dated 13 January 1958 was issued, addressed to this Court. The certificate declared that the property in question had been assigned as remuneration to the office of Patil, was inalienable, and was not subject to civil court process; therefore, the attachment process levied against the property should be removed and the decree insofar as it related to the property should be cancelled. After the issuance of this certificate by the Assistant Commissioner of the Gadag Division, the respondent filed an appeal to the Deputy Commissioner, Dharwar, which was dismissed, and the certificate was confirmed. The petitioner then relied upon this certificate in seeking the cancellation of the decree concerning the eleven properties at Kirtgeri. The respondent contended before this Court that the decision of the Bombay High Court operated as res judicata, and therefore the present certificate should also be deemed invalid because, in the High Court’s view, the certificate ought to have been addressed to the Privy Council. The respondent’s argument was that, since the certificate was addressed to this Court, it was invalid. The Court, however, was not persuaded by this line of reasoning, noting that the High Court had held only that the certificate must be issued to the court which had passed the decree, and that if, in law, this Court could be regarded as that court, the certificate would be valid. Consequently, the argument of res judicata was found to lack substance.

In examining whether the certificate issued by the Assistant Commissioner was valid, the Court observed that if, in law, the present Court could be regarded as the Court that originally passed the decree, then the certificate must be treated as perfectly valid. Consequently, the argument that res judicata applied had no substance. The principal issue before the Court was whether, in light of the constitutional changes that had occurred, the present Court could be said to be the Court that had passed the decree in question. The Court held that the answer to this issue favored the petitioner. Accordingly, the Court proceeded to analyse the relevant statutory provisions. Section 2 of the Abolition of the Privy Council Jurisdiction Act, 1949, provided that, from the appointed day of 10 October 1949, the jurisdiction of His Majesty in Council to entertain appeals and petitions arising out of any judgment, decree or order of any court or tribunal within the territory of India ceased, subject to the exceptions later stipulated in the Act. Section 4(b) clarified that nothing in section 2 affected the jurisdiction of His Majesty in Council to dispose of any Indian appeal or petition on which the Judicial Committee had, after hearing the parties, reserved judgment. This exception applied to Appeal No. 11 of 1948, which was then pending before the Privy Council. Section 5 conferred on the Federal Court the corresponding jurisdiction to entertain and dispose of Indian appeals and petitions that His Majesty in Council had previously dealt with, whether by prerogative or otherwise, immediately before the appointed day. In other words, after 10 October 1949 the Federal Court acquired jurisdiction over both Indian appeals and petitions, a category that naturally included the petition presently before the Court. Section 8 dealt with the legal effect of orders issued by His Majesty in Council, providing that any such order on an Indian appeal or petition, whether made before or after the appointed day, would for all purposes have the effect not only as an order of His Majesty in Council but also as if it were an order or decree made by the Federal Court exercising the jurisdiction conferred by the Act. This established the position concerning the jurisdiction and powers of the Federal Court with respect to appeals and petitions pending before the Privy Council and the orders made on them. The Court then turned to the Constitution, noting the relevance of Articles 374 and 135. Article 374(2) stipulated that all suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of the Constitution were to be transferred to the Supreme Court, which would have jurisdiction to hear and determine them, and that the judgments and orders of the Federal Court delivered or made before the commencement of the Constitution would retain the same force and effect as if rendered by the Supreme Court.

In this case the Court examined the latter part of Article 374(2) of the Constitution. The Court first recalled that an Order in Council, issued pursuant to the Privy Council judgment in Appeal No 11 of 1948, had to be treated as if it were an order and decision of the Federal Court under the provisions of the 1949 Act. Article 374(2) now requires that the same order and decree be treated as if the decree had been passed and the order had been made by the Supreme Court. The analysis then turned to Article 135, which provides that, unless Parliament enacts a law to the contrary, the Supreme Court shall have 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 commencement of the Constitution under any existing law. The Court noted that the Federal Court possessed jurisdiction to entertain a petition of the present kind before the Constitution came into force, and that, by virtue of Article 135, the Supreme Court now exercises that same jurisdiction. Consequently, a petition that could have been presented to the Privy Council, had that jurisdiction not been abolished, could have been presented before the Federal Court before the Constitution’s commencement and may now be presented before the Supreme Court after its commencement. The Court therefore concluded that, on the basis of the statutory provisions discussed, the certificate issued in the present case to this Court is valid and must be given effect. There is no dispute that the properties for which the certificate was issued are properties assigned as remuneration to the office of Patilki and are governed by the Act. It is also accepted that if the certificate is duly issued under section 10 of the Act, the court is obliged to cancel the decree concerning the properties covered by the certificate. Section 10 provides, among other things, that when the Collector is satisfied that, by virtue of or in execution of a decree or order of any court, any watan or any part thereof, or any of its profits, recorded in the revenue records or registered under the Act and assigned under section 23 as remuneration of an officiator, has passed or may pass, after the Act’s commencement, without the State Government’s sanction into the ownership or beneficial possession of any person other than the officiator then in office, the court shall, upon receipt of a certificate

The Court observed that, under the provisions of the statute, a certificate issued by the Collector must bear the Collector’s hand and seal and must set out the particulars specified in the relevant section, and that such a certificate directs the cancellation of the decree or order that is the subject of the petition to the extent that it concerns the watan or any portion thereof. The only ground raised against the validity of the certificate was the contention that it had been addressed to an incorrect court. The Court noted that this objection had been rejected, and accordingly concluded that the segment of the decree that relates to the watan properties necessarily had to be set aside. Accordingly, the Court held that the petition should be granted and that the decree in question, insofar as it purports to affect or incorporate any right to the office of Patilki and the watan lands attached to that office at Kirtgeri as listed in the certificate, must be declared cancelled. The Court further directed that, given the circumstances of the present case, no order as to costs would be made. In summary, the petition was allowed and the decree was cancelled to the extent it dealt with the specified rights and lands.