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PETITIONER: GULAB RAI AND ANR.

       Vs.

RESPONDENT: PUNIYA

DATE OF JUDGMENT: 07/10/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  637            1966 SCR  (2) 102

ACT: Rajasthan  High Court Ordinance 1949 (Raj. 15 of 1949),  cl. 18--Application under Guardian & Wards Act-Appeal to  Single Judge-If further appeal to Division Bench competent. Guardian & Wards Act, 1890 (8 of 1890), ss. 47 and  48-Scope of.

HEADNOTE: The  respondent’s application under s. 25 of  the  Guardians and  Wards Act for the custody of respondent’s daughter  was rejected by the Civil Judge.  When the decision was reversed in appeal by a single Judge of the Rajasthan High Court, the appellants  preferred an appeal to the Division Bench  under cl.  18  of the Rajasthan High Court  Ordinance.   This  was dismissed  on  the ground that the  appeal  was  incompetent having  regard to sq. 47 and 48 of the Guardians  and  Wards Act.  In appeal to this Court, HELD:The  appeal before the Division Bench of the  Rajasthan High  Court under cl. 18(1) of the Ordinance was  competent. [106 H] The  competence of an appeal before the Division Bench  will have  to  be  judged  by the provisions of  cl.  18  of  the Ordinance  itself  and s. 48 of the Act has  no  restrictive impact.  Section 48 saves the provisions of s. 47 of the Act and s. 115 of the Code of Civil Procedure; and considered by themselves  the  provisions of s. 47 do not create  any  bar against  the competence of an appeal under cl. 18(1) of  the Ordinance where the appeal permitted by s. 47 is heard by  a single Judge. [106 G] Section  48  attaches finality to the order  passed  by  the trial Court subject to the provisions prescribed by s. 47 of the Act and s. 115 of the Code of Civil Procedure. [106 E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 729 of 1964. Appeal  by special leave from the order dated February  1964 of  the Rajasthan High Court in D.B. Civil Appeal No.  2  of

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1963. O. P. Varma, for the appellants. Mohan Behari Lal, for the respondent. The Judgment of the Court was delivered by Gajendradkar, C.J. This appeal by special leave arises  from an application made by the respondent Puniya in the Court of the  Senior  Civil  Judge at Jhalawar under  S.  25  of  the Guardians  and Wards Act, 1890 (No. 8 of 1890)  (hereinafter called  ’the  Act’),  for the custody of  his  daughter  Mt. Chitra.  To this application, the                             103 respondent  had impleaded the two appellants, Gulab Bai  and her,  husband  Onkar  Lal.  The respondent is  a  Kumhar  by caste,  whereas  the appellants are fat.   The  respondent’s case was that the minor Chitra who was about 11 years of age at  the  date of the application, had been living  with  the appellants  for  the  last 4 or 5 years  with  his  consent. Whilst  the minor girl was living with the  appellants,  she used to come to spend some time with the respondent and  his wife;  but for some time past, the appellants did not  allow Chitra  to  visit her parents.  That is why  the  respondent thought it necessary to move the Court for an order under s. 25 of the Act. The  claim thus made by the respondent was disputed  by  the appellants.   They alleged that the respondent and his  wife had  lost  some  children in their  infancy,  and  so,  they decided to leave the minor in the custody of the appellants, in  the  hope  that  their custody  would  save  the  child. Accordingly,  the  minor was entrusted to the  appellants  a few-hours after her birth and in fact, she was given away by the  respondent and his wife to the appellants to be  looked after  as if she was their adopted child.  During all  these years,  the appellants have looked after the minor as  their own  child,  have taken fond care of her,  and  have  looked after her education.  The appellants. and the respondent and his  wife  are  neighbours, and the  appellants  denied  the allegation made by the respondent that they ever  obstructed the  minor  from  visiting her parents.   According  to  the appellants, recently an unfortunate incident had taken place between  appellant No. 1 and the wife of the respondent  and that  was the real cause of the present  application.   They pleaded  that  as a result of the ugly  incident  that  took place  between the two ladies, the minor was frightened  and appeared to be disinclined to visit her parents any longer. On  these  pleadings, the parties led  evidence  to  support their respective contentions.  The learned trial Judge  held that  the  child had been entrusted to the  appellants  soon after  she  was born, and that she was looked after  by  the appellants as if she was their daughter.  He felt  satisfied that  in  case  the  child  was  removed  from  the   homely atmosphere which she enjoyed in the house of the appellants, that  would  definitely be detrimental to  her  welfare  and would  also affect her health, because she had come to  look upon the appellants as her parents.  The learned trial Judge examined  the  child in order to ascertain her  own  wishes, because  he  thought  that  she  had  attained  the  age  of discretion  and could express her wishes intelligently.   He was  convinced that the child definitely preferred  to  stay with the appellants.  Having come to the conclusion that  it would  be  inconsistent with the interests of the  child  to allow  the application made by the respondent,  the  learned Judge ordered that 104 appellant  No.  2 should be appointed the  guardian  of  the person  of  the  minor under ss. 7 and 8  of  the  Act.   He

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directed that the said Guardian shall give an undertaking to the.   Court  not to remove the child from  the  territorial jurisdiction  of the Court and not to marry her without  the permission  of the Court.  A direction was also issued  that the child shall not, of course, be married outside her caste without the consent of her parents even if she so desires. Against  this  order,  the respondent  preferred  an  appeal before the Rajasthan High Court.  This appeal was heard by a learned  single Judge- of the said High Court  who  reversed the decision of the trial Judge.  He came to the  conclusion that  it would be in the interests of the minor  to  deliver her to the custody of the respondent and his wife.  He  held that  under s. 6 (a) of the Hindu Minority and  Guardianship Act, 1958, the respondent was entitled to be the guardian of his daughter in the absence of any allegation or proof  that he  was  in any way unsuitable to be such a  guardian.   The learned  single Judge also took into account the  fact  that the  appellants  and the respondent  belonged  to  different castes.  and he held that since the minor was then about  12 years  of age, it was in her interest that she went back  to be  looked  after  by her own parents. ion  this  view,  the learned  single  Judge  set aside the order  passed  by  the learned  trial Judge by which appellant No. 2 was  appointed the  guardian of the minor and directed him to  deliver  the minor  to -the custody of the respondent.  The order  passed by the learned Judge further provided that if the appellants did  not  deliver  the minor Chitra to her  parents  on  the expiry  of  three  months, the respondent  shall  apply  for execution  of the order and that it would be executed  as  a decree  under  S. 25 (2) of the Act by issue  of  a  warrant under s. 100 of the Code of Criminal Procedure. Against  this decision, the appellants preferred  an  appeal under clause 18 of the Rajasthan High Court Ordinance,  1949 (No.  15 of 1949) (hereafter called ’the Ordinance’).   This appeal  was dismissed by a Division Bench of the High  Court on the ground that the appeal was incompetent having  regard to  the  provisions of sections 47 and 48 of the  Act.   The appellants  then  moved the High Court  for  certificate  to prefer an appeal to this Court, but the said application was dismissed.   That  is  how the appellants  applied  for  and obtained  special leave from this Court, and it is with  the said leave that this appeal has come before us. The  short question of law which arises for our decision  is whether the High Court was right in holding that the  appeal under  clause  18 (1) of the Ordinance was  incompetent  and that raises the -question about the construction of sections 47 and 48 of the Act. 105 Before dealing with this point, two relevant facts ought  to be mentioned.  The Act was extended to Rajasthan by the Part B  States  (Laws) Act, 1951 (Act III of 1951)  on  the  23rd February;  1951;  but before the Act was  thus  extended  to Rajasthan,  the  Ordinance  had  already  been  promulgated. Clause 18(1) of the Ordinance provides, inter alia, that  an appeal shall lie to the High Court from the judgment of  one Judge of the High Court; it excepts from the purview of this provision  certain  other judgments with which  we  are  not concerned.  It is common ground that the judgment pronounced by the learned single Judge of the High Court on the  appeal preferred by the respondent before the High Court, does  not fall  within  the  category of the  exceptions  provided  by clause  1 8 ( 1 ) of the ordinance; so that if the  question about  the  competence  of  the  appeal  preferred  by   the appellants  before the Division Bench of the High Court  had fallen to be considered solely by reference to clause 18(1),

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the  answer to the point raised by the appellants before  us would have to be given in their favour.  The High Court has, however,  held  that  the result of reading ss.  47  and  48 together is to make the present appeal under clause 18(1) of the Ordinance incompetent.  The question which arises before us is : is this view of the High Court right ? Section  47 of the Act provides that an appeal shall lie  to the High Court from an order made by a Court under  sections specified in clauses (a) to (j) thereof.  Clause (c) of  the said  section  refers to an appeal against.  an  order  made under  s.  25, making or refusing to make an order  for  the return of a ward to the custody of his guardian.  It is thus clear  that the order passed by the learned trial  Judge  in the present proceedings was an order under s. 25 of the Act, and as such, is appealable under s. 47; and when as a result of the rules framed by the Rajasthan High Court the  present appeal was placed before a learned single Judge of the  said High Court for hearing and was decided by him, his  decision became appealable to a Division Bench of the said High Court under cl. 1 8 (1 ) of the Ordinance.  Thus far, there is  no difficulty or doubt. But  the  High  Court has held that s. 48  of  the  Act,  in substance,  amounts to a prohibition against an appeal to  a Division  Bench under cl. 18(1) of the Ordinance;  and  that makes  it  necessary  to examine the  provisions  of  s.  48 carefully.  Section 48 reads thus "Save  as provided by the last foregoing section and  by  s. 622 of the Code of Civil Procedure, an order made under this Act  I  shall  be  final, and shall  not  be  liable  to  be contested by suit or otherwise." 106 It  is  clear that what is made final by S. 48 is  an  order made  under  this Act; and the context shows that it  is  an order  made  by  the  trial Court under  one  or  the  other provision of the Act.  This position is made perfectly clear if  the  first  part of s. 48  is  examined.   The  finality prescribed  for the order made under this Act is subject  to the provisions of s. 47 and s. 622 of the earlier Code which corresponds to S. 115 of the present Code.  In other  words, the  saving clause unambiguously means that an order  passed by the trial Court shall be final, except in cases where  an appeal  is taken against the said order under S. 47  of  the Act,  or  the propriety, validity, or legality of  the  said order  is  challenged by a  revision  application  preferred under  s. II 5 of the Code.  It is, therefore, essential  to bear in mind that the scope and purpose of ’S. 48 is to make the  orders  passed by the trial Court  under  the  relevant provisions  of the Act final, subject to the result  of  the appeals  which may be preferred against them, or subject  to the  result of the revision applications which may be  filed against  them.   In other words, an order passed  on  appeal under s. 47 of the Act, or an order passed in revision under S.  II  5 of the Code, are, strictly speaking,  outside  the purview  of  the finality prescribed for the  orders  passed under  the  Act,  plainly because they  would  be  final  by themselves  without any such provision, subject, of  course, to  any appeal provided by law or by a  constitutional  pro- vision,  as for instance, Art. 136.  The construction of  s. 48,  therefore, is that it attaches finality to  the  orders passed  by  the  trial  Court  subject  to  the   provisions prescribed  by  S. 47 of the Act, and s. 115  of  the  Code. That is one aspect of the matter which is material. The other aspect of the matter which is equally material  is that  the provisions of S. 47 are expressly saved by S.  48, and  that means that S. 47 will work out in an ordinary  way

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without  any restriction imposed by, S. 48.  In  considering the question as to whether a judgment pronounced by a single Judge  in an appeal preferred before the High Court  against one or the other of the orders which are made appealable  by S.  47 will be subject to an appeal under clause 1 8 (1)  of the  Ordinance, S. 48 will have no restrictive impact.   The competence of an appeal before the Division Bench will  have to be judged by the provisions of cl. 18 itself.  Section 48 saves  the  provisions  of S. 47, and  as  we  have  already indicated, considered by themselves the provisions of S.  47 undoubtedly do not create any bar against the competence  of an appeal under cl. 18(1) of the Ordinance where the  appeal permitted by s. 47 is heard by a learned single Judge of the High Court.  Therefore, we are satisfied that the High Court was  in  error in coming to the conclusion  that  an  appeal before a Division Bench of the said High Court under  clause 18 (1) of the Ordinance was incompetent. 107 It is true that in upholding the respondent’s plea that  the appeal preferred by the appellants under clause 18(1) of the Ordinance  was  incompetent,  the High Court  has  no  doubt purported to rely upon and apply its earlier decision in the case  of Temple of Shri Bankteshwar Balai Through Rampal  v. The  Collector, Ajmer(1).  The said decision,  however,  was concerned with the effect of the provisions prescribed by s. 66(3)  of  the Ajmer Abolition of  Intermediaries  and  Land Reforms  Act (No.  III of 1955) in relation to clause 18  of the Ordinance, and since we are not called upon to  consider the correctness of the conclusion reached in that behalf, it is unnecessary for us to examine whether the High Court  was right  in holding that the provisions of the said  s.  66(3) created  a bar against the competence of -the  appeal  under cl.  18(1) of the Ordinance.  All that we  are-concerned  to deal  with in the present appeal is the effect of s.  48  of the Act, and in our opinion, the High Court was in error  in holding  that s. 48 excluded the application of clause  1  8 (1)  of the Ordinance to the decision of the learned  single Judge in the present proceedings. In  this  connection,  we  may  incidentally  refer  to  the decision of this Court in Union of India v. Mohindra  Supply Company(1).   In  that  case, this Court has  held  that  an appeal  against the appellate order of the single Judge  was barred  under s. 39(2) of the Indian Arbitration Act,  1940, because  the expression "second appeal" in s. 39(2) means  a further  appeal from an order passed in appeal under  s.  39 (1) and not an appeal under s. 100 of the Code, and as such, the said expression "second appeal" includes an appeal under the  Letters  Patent.   In  substance.  the  effect  of  the decision  of  this  Court in the case  of  Mohindra   Supply Co.(2) is that by enacting s. 39(2) the Arbitration Act  has prohibited  an  appeal under the Letters Patent  against  an order  passed  under s. 39 (1). This decision  again  turned upon  the  specific  words used it- s. 39(1) &  (2)  of  the Arbitration Act and is not of any assistance in interpreting the  provisions  of  s. 48 of the Act  with  which.  we  are concerned in the present proceedings. The  question  a,,  to whether an appeal  permitted  by  the relevant clause of the Letters Patent of a High Court can be taken  away by implication, had been considered in  relation to the provisions of s.  588 of the Codes of Civil Procedure of  1877  and 1882. The first part of the said  section  had provided for an appeal from the    orders    specified    by clauses (1) to (29) thereof, and the latter part of the said section  had  laid down that the orders  passed  in  appeals under this section shall be final.  Before the enactment of

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(1) LL.R. 14 Raj. 1. (2) [1962] 3 S.C.R. 497 Sup- CI/66-8 108 the  present  Code,  High Courts in India  had  occasion  to consider  whether  the provision as to the finality  of  the appellate  orders prescribed by S. 588 precluded  an  appeal under  the  relevant  clauses  of  the  Letters  Patent   of different High Courts.  There was a conflict of decisions on this  point.   When the matter was raised before  the  Privy Council   in  Harrish  Chunder  Chowdhry  v.  Kali   Sundari Debia(1),  the  Privy  Council thus  tersely  expressed  its conclusion:               "It   only  remains  to  observe  that   their               Lordships do not think that section 588 of Act               X of 1877, which has the effect of restricting               certain  appeals,  applies to such a  case  as               this,  where  the appeal is from  one  of  the               Judges of the Court to the Full Court". Basing themselves on these observations, the High Courts  of Calcutta,  Madras, and Bombay had held that S. 588  did  not take  away  the right of appeal given by clause  15  of  the Letters Patent, vide Toolsee Money Dassee & Others v. Sudevi Dassee   &   Others(2),  Sabhapathi  Chetti  &   Others   v. Narayanasami Chetti(3), and The Secretary of State for India in Council v. Jehangir Maneckji Cursetji (4 )  respectively. On the other hand, the Allahabad High Court took a different view,  vide  Banno  Bibi  and others  v.  Mehdi  Husain  and Others(5),  and  Muhammad Naim-ul-Lah  Khan  v.  Ihsan-Ullah Khan(6).  Ultimately, when the present Code was enacted,  S. 104  took the place of S. 588 of the earlier Code.   Section 104(1) provides that an appeal shall lie from the  following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.  It will be noticed that the saving  clause which refers to the provisions of the Code, or to the provi- sions of an law for the time being in force, gives effect to the  view  taken  by the Calcutta, Madras  and  Bombay  High Courts.  In fact, later, the Allahabad High Court itself has accepted  the  same  view  in L. Ram  Sarup  v.  Mt.   Kaniz Ummehani (7 ). We  have referred to these decisions to emphasise  the  fact that  even where the relevant provision of s. 5 8 8  of  the earlier  Code  made  certain  appellate  orders  final,  the consensus  of judicial opinion was that the  said  provision did  not preclude an appeal being filed under  the  relevant clause  of  the Letters Patent of the High  Court.   In  the present  case, as we have already indicated, S. 48 in  terms saves the provisions of S. 47 of the Act as well as those of S. 115 of the (1) 10 I.A. 4 at p. 17.  (2) (1899) 26 Cal. 361. (3) (1902))5 Mad. 555.   (4) (1902) 4 Bom. L.R. 342. (5) (1889) 11 Alld. 375. (6) (1892) 14 AIId. 226 (F.P.) (7)  A.I.R. 1937 Alld. 165.                             109 Code, and that gives full scope to an appeal under clause 18 of the Ordinance which would be competent when we deal  with the question about appeals under s. 47 of the Act considered by itself. The  result is, the appeal is allowed, the order  passed  by the  Division Bench of the High Court dismissing the  appeal preferred by the appellants under cl. 18(1) of the Ordinance on the ground that it is incompetent, is set aside, and  the said  appeal is remitted to the High Court for  disposal  in accordance  with law.  In view of the unusual  circumstances

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of  this case, we direct that parties should bear their  own costs incurred so far. Appeal allowed 110