11 October 1955
Supreme Court


Case number: Appeal (civil) 92 of 1953






DATE OF JUDGMENT: 11/10/1955


CITATION:  1956 AIR   29            1955 SCR  (2) 872

ACT: Constitution  of  India-Arts. 133 and  135-Decree  of  lower court in respect of properties of the value of more than Rs. 10,000 but below Rs. 20,000-Reversed by the High Court on 8- 11-1949-High  Court  granted leave to appeal  on  1-10-1951- Appeal   to  the  Supreme  Court   -Whether   competent-Word "exercisable" in Art. 135-Construction of.

HEADNOTE: This appeal to the Supreme Court was from a reversing decree of the Bombay High Court in a suit for possession of certain immovable  properties.  The suit was dismissed by the  trial court on 20-12-1946, the value of properties being found  to be  over Rs. 10,000.  The decree of the High Court  allowing the  plaintiff’s claim was passed on the 8th November  1949. The defendants applied to the High Court for leave to appeal to the Federal Court on 6-1-1950 which was granted on  1-10- 1951. One of the questions for determination was whether Art.  133 of  the Constitution applied to the case and the appeal  was competent to the Supreme Court. Held, that Art. 133 did not apply as it relates expressly to appeals  against  any judgment, decree or final order  in  a civil  proceeding  of  a High Court  in  the  "territory  of India". Held  further  that on the date of the decree  of  the  High Court,  the defendants had a vested right of appeal  to  the Federal Court as the properties were of the requisite  value and  on 6-1-1950 a certificate of leave to appeal was  bound to be granted. Held also that the appeal was competent to the Supreme Court by virtue of the provisions of Art. 135 of the  Constitution as the jurisdiction and powers in relation to the matter  in dispute  were exercisable by the Federal  Court  immediately before  the  commencement  of  the  Constitution  under   an existing law inasmuch as the Federal Court had  jurisdiction to entertain and hear appeals from a decree of a High  Court which   reversed  the  lower  court’s  decree   as   regards properties of the value of more than Rs. 10,000.



The  construction contended for by the respondent  that  the jurisdiction  was exercisable under Art. 135 by the  Federal Court  only  if the matter was actually pending  before  the Federal  Court and that it could not be said to  be  pending until the appeal is declared admitted under Order XLV of the Civil Procedure Code is 873 too  narrow and does not give full and proper scope  to  the meaning of the word ’exercisable’ in the Article.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 92 of 1953. Appeal  under section 110 of the Civil Procedure  Code  from the  Judgment and Decree dated the 8th November 1949 of  the Bombay High Court in Appeal from Original Decree No. 195  of 1947  arising  out  of the Judgment and  Decree  dated  20th December 1946 of the Court of Civil Judge, Senior  Division, Sholapur in Special Suit No. 78 of 1945. C.K.  Daphtary, Solicitor-General of India (R.   A.  Govind, with him) for the appellants. J.B. Dadachanji, Sri Narain Andley and Rajinder Narain,  for respondents. 1955.  October 11.  The Judgment of the Court was  delivered by CHANDRASEKHARA  AIYAR  J.-This appeal is  from  a  reversing decree of the Bombay High Court in a suit for the possession of  certain immovable properties which was dismissed by  the Civil  Judge, Senior Division, Sholapur.  The value  of  the properties has been found to be over Rs. 10.000. The  original decree was on 20-12-1946.  The decree  of  the High Court allowing the plaintiff’s claim was on  8-11-1949. The  defendants applied for leave to appeal to  the  Federal Court on 6-1-1950.  The High Court directed the trial  court to  find  the value of the property which was  the  subject- matter  of the suit at the time of the suit and on the  date of  the passing of the decree in appeal.  On  22-1-1951  the lower  court  ascertained the value as stated  above.   ’The High Court thereafter granted leave to appeal on  1-10-1951, overruling  the  objections raised by the plaintiff  to  the grant of such leave. The  maintainability  of  this appeal  has  been  questioned before  us  by  Mr.  Dadachanji,  learned  counsel  for  the respondents,  in  a  somewhat lengthy  argument.   His  main contention was that article 133 of the 874 Constitution applies to the case, and as the value is  below Rs.  20,000,  no  appeal  can be  entertained.   It  is  the correctness of this argument that we have to consider. On the date of the decree of the High Court, the  defendants had  a vested right of appeal to the Federal Court,  as  the properties were of the requisite value, and on 6-1-1950 they sought a certificate of leave to appeal, which was bound  to be granted.  The Constitution establishing the Supreme Court as  the final appellate authority for India came into  force on 26-1-1950.  Did the vested right become extinguished with the  abolition of the Federal Court?  If the court to  which an  appeal  lies is altogether abolished without  any  forum substituted in its place for the disposal of pending matters or for the lodgment of appeals, the vested right perishes no doubt.    We   have  therefore.  to  examine   whether   the Constitution  which  brought the Supreme  Court  into  being makes any provision for an appeal from a reversing decree of the  High  Court  prior  to the  date  of  the  Constitution



respecting  properties of the value of Rs. 10,000  and  more being entertained and heard by the Supreme Court. Article 135 is in these terms:- "Until  Parliament  by law otherwise provides,  the  Supreme Court  shall also have jurisdiction and powers with  respect to  any  matter to which the provisions of  article  133  or article  134  do  not apply if jurisdiction  and  powers  in relation  to  that matter were exercisable  by  the  Federal Court   immediately   before  the   commencement   of   this Constitution under any existing law". Article 133 runs as follows:- "(1)  An  appeal  shall lie to the Supreme  Court  from  any judgment,  decree or final order in a civil proceeding of  a High  Court  in  the territory of India if  the  High  Court certifies-  (a)  that the amount or value of the subject-matter of  the dispute in the court of first instance and still in  dispute on appeal was and is not less than twenty thousand rupees or such  other  sum  as  may be specified  in  that  behalf  by Parliament by law; or 875 (b)that  the  judgment,  decree  or  final  order   involves directly  or  indirectly some claim or  question  respecting property  of the like amount or value; or (c)  that  the case is a fit one for appeal to  the  Supreme Court; and, where the judgment, decree or final order appealed from affirms  the decision of the court immediately below in  any case other than a case referred to in sub-clause (c), if the High  Court further certifies that the appeal involves  some substantial question of law.................." It  is reasonably clear that article 133 does not  apply  to this  "matter".   The  language  is  prospective,  and   the judgment, decree or final order from which the appeal is  to be taken is that of a High Court in the territory of  India- that  is  a High Court established under  the  Constitution. The  territory  of  India comprises  the  territory  of  the States.   Article 214 says that there shall be a High  Court for  each State, and clause (2) thereof provides  that  "the High  Court  exercising  jurisdiction  in  relation  to  any Province immediately before the commencement of this Consti- tution  shall  be  deemed  to be  the  High  Court  for  the corresponding  State".   We can compendiously speak  of  the High  Court  prior to the Constitution and  the  High  Court after the Constitution as the Provincial High Court and  the State  High Court.  A High Court in the territory  of  India means  a  State  High Court, and article  133  provides  for appeals  against  any judgment, decree or final order  in  a civil proceeding of such High Court. Though  article  133 does not apply, we have  still  to  see whether  it  is a matter as regards which  jurisdiction  and powers  were  exercisable by the Federal  Court  immediately before   the  commencement  of  the  Constitution.   It   is unnecessary  to  refer in detail to the  earlier  enactments defining  the  jurisdiction of the Privy  Council,  and  the Government of India Act, 1935 establishing the Federal Court and  conferring a limited jurisdiction on the same.   It  is sufficient  to  point out that as the law  then  stood,  the Federal Court had jurisdiction to entertain and hear appeals 111 876 from  a  decree  of a High Court which  reversed  the  lower court’s  decree as regards properties of the value  of  more than  Rs.  10,000.  The aggrieved party had a: right  to  go before it, without any special leave being granted.  It  was



a  matter over which jurisdiction was "exercisable"  by  the Federal  Court.  The construction that it was  "exercisable" only  if the matter was actually pending before the  Federal Court and that it could not be said to be pending until  the appeal  is  declared admitted under Order XLV of  the  Civil Procedure  Code  is too narrow, and does not give  full  and proper  scope  to the meaning of the word  "exercisable"  in the-article.   Pending matters are dealt with under  article 374(2),  and we must give some meaning to the provisions  of article  135.  As soon as the decree of the High Court  came into  existence,  the jurisdiction of the Federal  Court  to bear an appeal from that decree became exercisable, provided certain conditions as to security and deposit were  complied with, which are not material for our present purpose. Reference may be made here to paragraph 20 of the Adaptation of Laws Order, 1950, as amended in 1951, which provides- "Nothing  in this Order shall affect the previous  operation of,  or anything duly done or suffered under,  any  existing law or any right, privilege, obligation or liability already acquired, accrued or incurred under any such law.........." By this Order section 110, Civil Procedure Code was  adapted to  the  new situation but the requirement as to  value  Was raised from 10,000 to 20,000.  What is provided is that this adaptation  will  not  affect the right  of  appeal  already accrued. If  we accede to the argument urged by the  respondents,  we shall be shutting out altogether a large number of  appeals, where  the parties had an automatic right to go  before  the Federal Court before the Constitution and which we must hold was  taken away from them for no fault of their own,  merely because  the Supreme Court came into existence in  place  of the Federal Court.  An interpretation or 877 construction  of  the provisions of the  Constitution  which would  lead  to  such a result  should  be  avoided,  unless inevitable.   The  Full Bench decision of  the  Madras  High Court   in  Gundapuneedi  Veeranna  and  three   others   v. Gundapuneedi  China Venkanna and seven others(1) was a  case where  the decree of the High Court and the application  for leave  to appeal were both after the Constitution came  into force.   Whether in all matters where there was a  right  of appeal  under  section 110 of the Civil  Procedure  Code  it continues  in  respect  of  all suits  filed  prior  to  the Constitution is a question that does not arise for  decision now. On the merits, the appeal is unassailable.  The family whose genealogical  tree  is given in the opening portion  of  the judgment of the trial Judge owned what may be  compendiously described  as  Sangam  properties  and  Peta  Velapur  Mahal properties,  and  all of them were of the nature  of  watan. The Sangam lands were held by the eldest branch  represented by  Yeshwant Rao (son of Panduranga Rao) by right of  lineal primogeniture.  When Yeshwant Rao and his widow Tarabai died in  November  1924, these properties went to  the  plaintiff Shankar  Rao’s branch as the next senior in line.  The  Peta Velapur  Mahal  properties  were held  in  three  shares  by Narsinga Rao, Vithal Rao and Krishna Rao, the fourth brother Shyama Rao having no right as he was insane.  Defendants  1, 2 and 3 represent Krishna Rao’s branch. After Yeshwant Rao’s death, Lakshman Rao, the grandfather of defendants I and  2, filed a suit No. 1064 of 1925 for a declaration that he  was the nearest heir to the Sangam properties, the Peta  Velapur Mahal  properties  and the cash income appertaining  to  the inamdar’s right in Sangam.  He got a declaratory decree that he  was the nearest heir of the deceased Yeshwant  Rao,  and



had  a right in such capacity to take possession of ill  the properties,  excluding the inam income and the Sangam  lands specified  in Schedule B of the decree and a small  item  of property  situated  in  the same village  and  specified  in Schedule G. As regards the excluded items, Shankar (1)  I.L.R. [1953] Mad. 1079. 878 Rao,  the first defendant, (plaintiff in the  present  suit) was  held to be the heir.  On appeal to the High Court,  the decree  of  the Subordinate Judge was confirmed,  except  as regards the cash allowance of three villages Nevare, Tambure and Limbagaon, which was also declared to belong to  Shankar Rao. As  the decree was only a declaratory decree, a  fresh  suit had  to  be filed by Narayana Rao, son of Lakshman  Rao,  to recover  possession of the Peta Velapur Mahal properties  at Mahalung, Lavang and Wafegaon.  This was Civil Suit No. 2148 of  1936.   Recovery was also sought of some  cash  and  the value  of  some ornaments and clothes, etc.  The  claim  was resisted by Shankar Rao, and his main plea was that in  lieu of the properties claimed, a large number of lands at Sangam had  originally  been given to the plaintiff’s  branch,  and that unless those properties were given back, the  plaintiff could  not  claim to recover the Velapur  Mahal  properties. The  suit ended in a compromise decree.  Shankar Rao was  to deliver  actual possession of the lands to the plaintiff  as owner  together with costs and mesne profits and the  plain- tiff  was  to  abandon the rest of the  claim.   The  decree states,  "The defendant has given up all the contentions  in his written statement". After  possession was taken of the Velapur Mahal  properties under  the decree, the plaintiff, Shankar Rao, brought  this suit to recover from defendants I and 2 the Sangam lands  to which he referred in his earlier written statement  alleging that  they  were  given  to their  grandfather  in  lieu  of maintenance.   The defendants have made the answer that  the items of Sangam lands claimed by the plaintiff were given to their  ancestor,  Krishna Rao absolutely under the  deed  of 1867, and that since then they had been in the enjoyment  as owners  thereof.  The Civil Judge dismissed the  plaintiff’s suit  finding that the case of the plaintiff to  the  effect that  the  lands were given to Krishna Rao  for  maintenance under  the  deed of 1867 was unfounded.  But  on  appeal  by Shankar  Rao (the plaintiff), the High Court  reversed  this decree  construing  the deed of 1867 as a deed  under  which absolute owner- 879 ship  was  not  transferred  to Krishna  Rao  and  that  the specified   items  of  Sangam  lands  were  given   to   him provisionally  and conditionally till Krishna  Rao  obtained possession  of the Peta Velapur Mahal lands which were  then under a mortgage. We  have  examined  the deed closely and  do  not  find  any warrant for the view taken by the learned Judges on  appeal. The deed is Exhibit No. 35, and it is printed at page 63  of the  Paper  Book.   The correctness of  the  translation  is admitted.   It  was executed by Narsinga Rao  of  the  first branch  in  favour  of  Krishna  Rao  of  the  last  branch, predecessor-in-title  of defendants 1 to 3.  After  reciting that  Krishna Rao was entitled to a one-third share  in  the income  appertaining to the Deshmuki rent of the  family  at Peta Velapur Mahal, it proceeds to say, ".......... 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 proceeds to set out the items by areas, assessment, and boundaries, and then goes on: "In  all 6 numbers have been given by us to you in  lieu  of your entire income from the said Mahal.  Now, five and  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, 5 ’Pavs’ of land is  not in  your Vahiwat this day.  Hence on the expiry of 6  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 concludes with a provision  made for the  residence of  the  donee  in an open space in the  same  villagers  It further states: "......  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 880 claim of inheritance left". It is obvious from this document that the one third share of Krishna  Rao’s branch in the Peta Velapur  Mahal  properties was  retained  by  Narasinga Rao and that  in  lieu  thereof Krishna  Rao was given six items of the  Sangam  properties, the  whole of which could not then and there be  given  over into   his  possession  and  management  as  there   was   a usufructuary mortgage over a portion of the lands which  was to expire after the lapse of six years from that date.   The lands referred to as mortgaged are the Sangam lands and  not the Peta Velapur Mahal lands as wrongly assumed by the  High Court.    There  is  absolutely  nothing  said   about   the properties being given for maintenance to ]Krishna Rao.   On the  other  hand, in two places we find that  any  right  to inheritance  was  given  up.   In fact,  this  case  of  the plaintiff  was given up before the trial Judge.  It is  true that  there  was  an exchange of properties,  but  there  is nothing  to warrant the view of the learned Judges  that  it was  provisional or conditional, and that the  Sangam  lands were  to be returned when the Velapur Mahal properties  went into the possession and management of Krishna Rao’s  branch. To say that such an arrangement was implied is to ignore the plain terms of the deed. The  properties now in dispute are the items covered by  the deed.   They  did  not form the subject-matter  of  the  two previous  litigations.  Since 1867, the date of Exhibit  No. 35   they  have  always  been  in  the  possession  of   the defendants’  branch as owners.  It must also  be  remembered that  the  earlier suits of 1925 and 1936 proceeded  on  the basis  that  the  defendants’ branch was  the  heir  to  the properties left by the deceased, Yeshwant Rao. There  is no other question which arises for  discussion  or decision.   It  follows that, the trial Judge was  right  in holding that the plaintiff’s claim to recover possession  of the suit properties covered by the deed of 1867 was entirely baseless.  The decree of the High Court is reversed and that of the trial Judge is restored with costs throughout payable by the plaintiff to the defendants. 881