Mukund Deo (Dead) Represented By His... vs Mahadu And Ors.

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 31 August, 1964

Coram: P.B. Gajendragadkar, J.C. Shah, N. Rajagopala Ayyangar

The appeal, titled Mukund Deo (Dead) represented by his legal representatives versus Mahadu and others, was decided on 31 August 1964 by the Supreme Court of India. The matter was heard by a three‑judge bench consisting of P.B. Gajendragadkar, J.C. Shah and N. Rajagopala Ayyangar, and the judgment was authored by Justice J.C. Shah. The dispute concerned a tract of land that originally belonged to Beli Ram, the son of Ananda. Upon Beli Ram’s death, his surviving wife Sukhma Bai and his daughter Vitha Bai remained alive, and the deceased’s estate passed to his wife Rukhma Bai as a limited owner. Rukhma Bai executed a deed on 26 July 1916 selling the lands to Mukund Deo for a sum of six hundred rupees in old standard currency, and she subsequently delivered possession of the property to Mukund Deo. Rukhma Bai died in 1940. On 21 February 1944 the sons of Vitha Bai instituted a suit before the Munsiff Court of Mominabad Taluk, seeking a decree for possession of the lands that had been sold by Rukhma Bai. In their plaint they asserted that they adhered to the Mayukha school of Hindu law, that the sale by Rukhma Bai was not supported by legal necessity, and that upon Rukhma Bai’s death they, as the nearest reversioners to Beli Ram’s estate, became entitled to the lands. Mukund Deo defended the claim by contending, among other points, that the sale was indeed for legal necessity, that Vitha Bai survived Rukhma Bai, and that Vitha Bai had during her lifetime consented to the alienation. He further argued that Vitha Bai had filed a suit seeking a declaration that the sale was not binding on her, but had withdrawn that suit after reaching a compromise with Mukund Deo, thereby admitting his title. The Trial Court rejected Mukund Deo’s contentions, holding that the sale was not for the purpose of legal necessity, that Vitha Bai had predeceased Rukhma Bai, and that the plaintiffs, as the nearest reversioners upon Rukhma Bai’s death, were entitled to a decree for possession. The decree of the Trial Court was reversed on appeal before the Additional Sub‑Judge of Mominabad. The appellate judge held that the sale was supported by legal necessity and observed that Vitha Bai, while alive, had attempted to set aside the alienation but later entered into a compromise that acknowledged Mukund Deo’s title, concluding that the plaintiffs, who could claim only as heirs of Vitha Bai, had no valid claim to the land.

In the second appeal, identified as No. 544 of 1947, the High Court of Hyderabad rendered a judgment on 17 July 1953 that reversed the decision of the First Appellate Court and restored the original decree of the Trial Court. The High Court found that Mukund Deo had failed to demonstrate that the sale was made for legal necessity, and it held that Vitha Bai’s conduct in entering a compromise and withdrawing her declaratory suit did not confer a valid title upon Mukund Deo. Moreover, the High Court gave greater weight to the testimony of the plaintiffs’ witnesses that Vitha Bai had predeceased Rukhma Bai, describing it as preferable to the evidence presented by the defendant. With special leave, the heirs and legal representatives of the deceased Mukund Deo, who had died after the High Court’s decree, filed the present appeal before this Court.

The Court observed that Mukund Deo had not succeeded in proving that the conveyance of the disputed lands was made out of legal necessity. It further held that Vitha Bai’s decision to enter into a compromise with Mukund Deo and to withdraw the declaratory suit she had originally instituted could not, by itself, create a lawful title in Mukund Deo’s favour. The Court accepted the testimony of the plaintiffs’ witnesses that Vitha Bai had died before Rukhma Bai, describing that evidence as “preferable” to the material presented by the defendant, Mukund Deo. With the benefit of special leave, the heirs and the legal representatives of the deceased Mukund Deo filed the present appeal. The High Court of Hyderabad set aside the view of the First Appellate Court on two important questions: first, whether the sale to Mukund Deo was justified by legal necessity; and second, whether Vitha Bai had indeed predeceased Rukhma Bai. Counsel for the appellants contended that, on a second appeal, the High Court lacked authority to overturn the factual findings recorded by the First Appellate Court. In advancing that contention, counsel alleged that the High Court’s jurisdiction over the second appeal was derived from Section 100 of the Code of Civil Procedure, 1908, and that such an assumption was incorrect. The Court explained that at the time the suit was instituted, the land in dispute lay within the territory of His Excellency the Nizam of Hyderabad, and consequently the suit had to be heard and disposed of according to the procedural law then applicable in the State of Hyderabad. That law was the Hyderabad Civil Procedure Code (Act 31 of 1323 Fasli), enacted in Urdu. The Court reproduced the English rendering of the relevant portion of Section 602 of that Code, which provides that, except as otherwise provided, a second appeal may be taken to the High Court from every decree passed on first appeal by any subordinate court. It was thereby clear that, under the Hyderabad Code, a second appeal to the High Court was permissible on questions of fact as well as on questions of law.

Counsel for the appellants acknowledged that the position described in Section 602 was the correct law at the date of institution of the suit. However, counsel argued that the Hyderabad Code of Civil Procedure had subsequently been repealed and that, on 1 April 1951, the Code of Civil Procedure (Act 5 of 1908) had been extended to the Part B State of Hyderabad after its accession to the Indian Union. According to that argument, the power of the High Court to hear and determine a second appeal now derived from Section 100 of the 1908 Code, and consequently the High Court could not set aside the factual findings recorded by the First Appellate Court. The Court could not accept this contention. While it is true that procedural amendments are generally applied retrospectively, the Court noted that a substantive right of appeal, once vested, is not lost by a subsequent change in procedural law unless a specific provision or necessary implication extinguishes that right. The Court therefore rejected the appellants’ submission that the High Court was bound by the later provision of Section 100 to refrain from reviewing the factual determinations of the First Appellate Court. It affirmed that the appellate jurisdiction of the High Court, as conferred by the Hyderabad Code, remained effective for the present appeal, and that the Court was empowered to examine both factual and legal issues. It concluded that the argument advanced by counsel was untenable, and proceeded to address the remaining issues, observing that, although procedural changes are normally retrospective, a right of …

In this case, the Court observed that the right to appeal to a specific forum constitutes a substantive right and is not extinguished by a subsequent change in the law unless a statute expressly provides for its removal or the change is necessarily implied. The Court referred to the authority of Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369, where Lord Macnaghten, delivering the judgment of the Judicial Committee, explained that a judicial act is not retrospective by express enactment or by necessary intendment. He further stated that the essential question was whether the appeal to His Majesty in Council was a right vested in the parties at the time the Act was passed, or merely a procedural matter. According to the Judicial Committee, there was no doubt that the appeal was a vested right, and that depriving a litigant of an appeal that he possessed as a matter of right was fundamentally different from merely regulating procedure.

The Court also cited Delhi Cloth and General Mills Co. Ltd. v. Income‑tax Commissioner, Delhi, 54 Ind App 421 (AIR 1927, PC 242), in which the Judicial Committee refused to grant an aggrieved litigant a newly created right of appeal to His Majesty in Council under Section 66‑A of the Indian Income‑tax Act because the High Court judgment in question had been delivered before the amendment took effect. In addition, the Court mentioned the decision in Garikapatt Veeraya v. N. Subbiah Choudhury, holding that a vested right of appeal is a substantive right governed by the law that prevailed at the commencement of the suit. Such a right may be withdrawn only by a later enactment that expressly or necessarily provides for its removal.

Applying these principles, the Court examined whether any provision in the Act extended the Code of Civil Procedure, 1908, to the territory of the State of Hyderabad in a manner that would give Section 100 of that Code retrospective effect. The Court found that the Act contained no express or necessary implication that would invest Section 100 with retrospective operation. Consequently, the authority of the High Court to entertain the present appeal must be derived from the Hyderabad Code of Civil Procedure, unaffected by the provisions of Section 100 of the 1908 Code. While Section 100 of the 1908 Code did restrict the High Court’s power to hear a second appeal, that restriction applied only to cases instituted on or after 1 April 1951. For cases instituted before that date, the High Court’s jurisdiction remained governed by Section 602 of the Hyderabad Code of Civil Procedure.

The appellants’ counsel further argued that the High Court’s finding that Vitha Bai died before Rukhma Bai lacked evidential support. The Court acknowledged that the High Court had not provided an extensive discussion on that specific point and had limited its analysis to a brief observation. Nevertheless, the Court noted that the High Court had at least indicated its agreement with the trial court’s view that the evidence favored the conclusion that Vitha Bai predeceased Rukhma Bai.

The High Court merely observed: “As regards the question as to whether Vithabai predeceased Rukhma Bai we are in agreement with trial court that the evidence is more in favour of the conclusion that Vithabai predeceased Rukhma Bai.” The trial court had, in turn, set out in some detail the evidence produced by the witnesses of both the plaintiffs and the defendant. It noted that a revenue record identified as Exhibit 2, which reproduced the order of the Tahsildar directing an inquiry to enter the names of the plaintiffs as the pattedars and shikmidars, indicated that Vitha Bai could not have survived Rukhma Bai. The trial judge explained that if Vitha Bai had survived Rukhma Bai, her name would have been entered in the revenue records and the plaintiffs would have appeared in those records as heirs of Vitha Bai. The judge accepted that the evidence presented by the plaintiffs was not very strong. Nonetheless, the trial judge recognized the weakness in the plaintiffs’ case but held that, even though the plaintiffs’ evidence was “shaky” compared with the evidence of the defendant Mukund Deo, the plaintiffs’ evidence was “reliable to some extent.” The appellate judge did not re‑examine the evidence in depth. He merely observed that the statements of Nagoba, witness 1, and Rama, witness 3, “deserved consideration,” and that these witnesses had said that the land had been retained by Rukhma Bai for her own livelihood and had been given after her death to her daughter Vitha Bai. From those statements the appellate judge inferred that Rukhma Bai died first and that Vitha Bai died sometime thereafter. He expressed the view that, had the sequence been different, the witnesses would have stated that on the death of Rukhma Bai, Vitha Bai inherited the field set apart for Rukhma Bai herself. Accordingly, in the appellate judge’s opinion, the testimony of the plaintiffs’ witnesses established that Vitha Bai died after Rukhma Bai. The Court was unable to see how the mere absence of any statement by the plaintiffs’ witnesses that Vitha Bai did not inherit the property could be used to draw an inference in favour of the defendant. In any event, the High Court adopted the view of the trial court and rejected the view taken by the first appellate court. In an appeal filed with special leave under Article 136 of the Constitution, the Supreme Court would not ordinarily set aside the High Court’s findings on a question of fact that the High Court was competent to determine under the law governing the appeal. Consequently, the appeal failed and was dismissed with costs.