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PETITIONER: YELLAPPAGOUDA SHANKARGOUDA PATIL

       Vs.

RESPONDENT: BASANGOUDA SHIDDANGOUDA PATIL

DATE OF JUDGMENT: 09/03/1960

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1960 AIR  808            1960 SCR  (3) 221

ACT: Hereditary Office-Decree for partition of Watan land  upheld by  Privy  Council in appeal-Abolition  of  Privy  Council’s jurisdiction-Issue  of certificate by  Collector-Application for  cancellation  of decree, if can be entertained  by  the Supreme Court-Bombay Hereditary Offices Act, 1874 (Bom.  III of  1874), s. Abolition of Privy Council  Jurisdiction  Act, 1949  (V  Of  1949), ss. 5,  8-Constition  of  India,  Arts. 374(2), 135.

HEADNOTE: The  respondent  brought a suit for  partition  against  the petitioner  in  respect of certain Watan lands.   The  trial court decreed the suit but the High Court of Bombay reversed that  decree.in  appeal.   The Privy  Council  restored  the decree of the trial court and an Order-in-Council was  drawn up  accordingly.  Execution of the said decree was  resisted by the petitioner on the ground that the lands in suit being admittedly remuneration attached to the office of the  Patil and  as such governed by the Bombay Hereditary Offices  Act, 1874  (Bom.  III of 1874) were not liable to  partition.   A certificate  under  s.  1o  of the Act  was  issued  by  the Collector  at  the  instance  of  the  petitioner  and   the executing   Court   cancelled  the  execution   case.    The respondent  appealed  to  the  High  Court  and  that  court following  its  own  Full  Bench  decision  in  Rachapa   v. Amingouda,  (1881)  V Bom. 283, held the certificate  to  be invalid  since  it was not addressed to  the  Privy  Council which  had passed the decree and set aside the order of  the executing court.  Thereafter a fresh certificate under s. 1o of the Act was issued by the Collector and addressed to this Court  and the petitioner applied to this Court  under  that section  for the cancellation of the said decree granted  by the  Order-in-Council,  the Privy Council having  ceased  to have  any jurisdiction in the meantime.  ’The  question  for decision  was  whether  as a result  of  the  constitutional changes  this court could be said to have passed the  decree and could entertain the petition. Held, that the petition must be allowed. The  combined effect of ss. 5 and 8 of the Abolition of  the Privy  Council jurisdiction Act, 1949, and Arts. 374(2)  and 135 of the Constitution was that this petition which lay  to

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the   Privy  Council  before  it  ceased  to  exercise   its jurisdiction, could be presented to the Federal Court before the commencement of the Constitution and thereafter to  this Court. The  certificate  issued by the Collector and  addressed  to this  Court was, therefore, valid and must be  given  effect to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Misc. Petition NO.  530 of 1959. 222 Petition  for cancellation of the decree dated November  25, 1949,  granted to the Respondent by the Order-in-Council  in Privy Council Appeal No. XI of 1948. C.   K. Daphtary, Solicitor-General for India and B.   R. L. Iyengar, for the petitioner. K. R. Bengeri and A. G. Ratnaparkhi, for the respondent. 1960.  March 9. The Judgment of the Court was delivered by GAJENDRAGADKAR,  J.-This petition has been made under s.  10 of  the  Bombay Hereditary Offices  Act,  1874  (hereinafter called  the Act), for cancellation of the decree granted  to the  respondent by the Order in Council dated  November  25, 1949, in so far as the said decree purports to operate on or include any right to the office of the Patilki and 11  Watan lands  attached  thereto.   These  lands  are  situated   at Kirtgeri  in the Taluk of Gadag.  They form part of a  Watan and,  according  to  the revenue  records,  they  have  been assigned  as  remuneration to the officiator  for  the  time being under s. 23 of the Act.  The petitioner has obtained a certificate prescribed under s. 10, and he contends that  as a  result of the said certificate this Court  should  cancel the decree as claimed by him in the petition. It appears that the respondent had filed a suit against  the petitioner  in  the Court of the First Class  Sub  Judge  at Dharwar (Civil Suit No. 18 of 1934) and in the said suit  he had claimed partition and possession of the properties as an adopted son of Shiddangouda.  These properties were and  are in the possession of the petitioner.  The trial court passed a  decree in favour of the respondent.  The petitioner  then preferred  an appeal, No. 182 of 1935, in the High Court  of Bombay.  His appeal was allowed and the decree passed by the trial  court was reversed.  The respondent  then  challenged the  High Court decree and went up to the Privy  Council  in Appeal  No.  11 of 1948.  His appeal was  allowed,  and  the Privy Council held that the decree passed by the trial court should  be  restored.  Accordingly an  Order-in-Council  was drawn up on November 25, 1949; under this order 223 the  respondent was entitled to recover by partition a  half share  in the properties in suit.  He was also  entitled  to mesne  profits,  past  and  future,  till  the  recovery  of possession  or  three years and an enquiry was  directed  in that behalf.  Amongst the properties in which the respondent had  thus become entitled to claim a share are the 11  lands in question. In due course the respondent filed an execution  application Darkhast  No.  41 of 1950, in the Court of  the  Subordinate Judge at Dharwar.  The petitioner then contended that the 11 lands  in  question were governed by the provisions  of  the Act, they were assigned as remuneration to the office of the Patil,  and as such they could not be partitioned.   It  was

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also  urged  on  his behalf that in the  original  suit  the respondent  had  not  claimed any declaration  that  he  was entitled  to  the office of Patil and that  without  such  a claim  the 11 lands in question could not be claimed by  the respondent.  In support of these pleas the petitioner relied upon  the provisions of the Act contained in ss. 7, 10,  11, 13, 24, 25 and 36. Pending the execution proceedings the petitioner applied for the  grant of the prescribed certificate under s. 10 of  the Act,  and  a  certificate  was  accordingly  issued  by  the Collector  addressed  to the Civil Judge,  Senior  Division, Dharwar.    Thereupon   the  said  court  acted   upon   the certificate  and cancelled the execution process  which  had been   issued  against  the  Patilki-assigned  property   of Kirtgeri.   The respondent challenged the said order  before the  Bombay High Court and his challenge was upheld  by  the said  High Court.  The High Court followed its  own  earlier Full  Bench  decision in Rachapa v. Amingouda (1)  and  held that the certificate issued by the Collector under s. 10 was invalid  in that it was addressed not to the  Privy  Council which was the court which passed the decree but to the Civil Judge  at Dharwar.  In the result the order  cancelling  the execution  process  which had been passed by  the  executing court  was  set aside and a direction was  issued  that  the execution proceedings should proceed according to law. Thereafter  the  petitioner  applied  for  a  reissue  of  a certificate under s. 10 and prayed that the certificate (1)  (1881) V BOM. 283. 224 should  be addressed to this Court as in the  meanwhile  the Privy Council had ceased to have any jurisdiction  and  this Court   had  become  its  successor.   A   certificate   has accordingly  been issued on January 13, 1958,  addressed  to this  Court.   The certificate says that  the   property  in question has been assigned as remuneration to the office  of Patil  and  as  such it is inalienable  and  not  liable  to process  of  civil court and so the  process  of  attachment levied  against the said property should be removed and  the decree  in so far as it relates to the said property  should be  cancelled.  It appears that after this  certificate  was issued  by the Assistant Commissioner, Gadag  Division,  the respondent  filed  an  appeal to  the  Deputy  Commissioner, Dharwar.   His appeal, however, failed and  the  certificate issued by the Assistant Commissioner has been confirmed.  It is with this certificate that the petitioner has moved  this Court  for  the cancellation of the decree  in  question  in regard to the 11 properties at Kirtgeri. On behalf of the respondent it has been urged before us that the  decision  of  the Bombay High  Court  operates  as  res judicata  and so, in view of the said decision, the  present certificate also should be held to be invalid.  The argument is that the effect of the decision of the Bombay High  Court is  that the certificate should have been addressed  to  the Privy Council, and since it is addressed to this Court it is invalid.   We are not impressed by this argument.  What  the Bombay  High Court has held is that the certificate must  be issued  to the court which passed the decree, and if in  law this Court can be said to- be in effect and in substance the Court  that  pssed the decree then the Certificate  must  be held  to  be  perfectly  valid.   Therefore,  there  is   no substance  in  the  argument  of  res  judicata.   The  main ’question which falls to be considered is whether this Court can,. in view of the constitutional changes which have taken place  in  the meantime, be said to be the  Court  that  has passed  the present decree.- In our opinion, the  answer  to

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this question must be in favour of the petitioner.  Lot  us, therefore,  proceed  to  consider  the  relevant   statutory Provisions. 225 Section 2 of the Abolition of the Privy Council Jurisdiction Act,  1949,  has  provided, inter alia,  that  as  from  the appointed  day which was October 10, 1949, the  jurisdiction of  His  Majesty  in  Council  to  entertain’  appeals   and petitions’from  or  in respect of any  judgment,  decree  or order of any court or tribunal within the territory of India shall   cease  save  hereinafter  provided.   Section   4(b) provides  that  nothing contained in s. 2 shall  affect  the jurisdiction  of  His Majesty in Council to dispose  of  any Indian  appeal or petition on which the, Judicial  Committee has,  after hearing the parties, reserved  judgment   order. This provision applied to ’Appeal No. 11 of 1948 between the parties  then- pending before the Privy Council.  Section  5 conferson  the Federal Court corresponding  jurisdiction  to entertain and dispose of Indian appeals and petitions  which His  Majesty  in  Council  has, whether  by  virtue  of  His Majesty’s  prerogative or otherwise, immediately before  the appointed day.  In other words, after the appointed day  the Federal  Court  was  given  jurisdiction  to  entertain  and dispose  of not only Indian appeals but also petitions,  and that  would naturally include. a petition like  the  present with which we are dealing.  Section 8 dealt with the  effect of  the orders of His Majesty in Council;’it  provided  that any order made by His Majesty in Council on an Indian appeal or  petition,  whether  before or after  the  appointed  day shall,  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 in exercise of the jurisdiction  conferred  by  this Act.  This  then  was  the position  with regard to the jurisdiction and powers of  the Federal  Court vis-a-vis the appeals and  petitions  pending before the Privy Council and orders made on them. The  next relevant provisions are contained in Art. 374  and Art. 135 of the Constitution.  Art. 374(2) provides that all suits,  appeals and proceedings, Civil or Criminal’  pending in   the   Federal  Court  at  the   commencement   of   the Constitution, shall stand removed to the Supreme Court,  and the  Supreme  Court  shall have  jurisdiction  to  hear  and determine  the  same  and the judgments and  orders  of  the Federal 29 226 Court  delivered  or  made before the  commencement  of  the Constitution  shall  have the same force and effect  ,as  if they had been delivered or made by the Supreme Court.  It is with the latter part of Art. 374(2) that we are concerned in the  present  petition.  We have ’I already  seen  that  the Order  in Council issued in accordance with the judgment  of the Privy Council in Appeal No. 11 of 1948 had to be treated as  if  it was an order and decision of  the  Federal  Court under  the  relevant  provisions of the Act  of  1949.   Now another  fiction has been introduced by Art. 374(2) and  the said order and decree has now to be treated as if the decree had been passed and the ’order had been made by the  Supreme Court.   That takes us to Art. 135.  This  article  provides that 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 Art. 133  or  Art. 134 do not apply, if jurisdiction and powers in relation  to that  matter  were exercisable by the  Federal  Court  imme- diately  before the commencement of this Constitution  under any existing law.  We have already noticed that the  Federal

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Court  had  jurisdiction to deal with a  petition  like  the present  before the commencement of the Constitution ;  that jurisdiction can now be exercised by this Court as a  result of Art. 135.  The position, therefore, is that the  petition which could have been presented to the Privy Council if  the jurisdiction  of  the Privy Council had not  been  abolished could  have been presented before the Federal  Court  before the commencement of the Constitution and can be presented to this Court after the commencement of the Constitution.   We, therefore,  feel no doubt that as a result of  the  relevant statutory   provisions  to  which  we  have   referred   the certificate  issued  in the present case to  this  Court  is valid and must be given effect to. It  is not disputed that the properties in respect of  which the  certificate has been issued are properties assigned  as remuneration  to  Patilki I office and are governed  by  the provisions  of  the Act.  It is also conceded  that  if  the certificate is duly issued under s.     10  of  the  Act  it makes it obligatory on the court to 227 cancel the decree in regard to the properties covered by the certificate.  Section 10 provides, inter alia, that when  it shall  appear  to  the Collector that by virtue  of,  or  in execution  of, a decree or order of any court any  watan  or any part thereof, or any of the profits thereof, recorded as such  in the revenue records or registered under  this  Act, and  assigned under s. 23 as remuneration of  an  officiator has  or have, after the date of this Act coming into  force, passed  or  may  pass  without the  sanction  of  the  State Government  into the ownership or beneficial  possession  of any person other than the officiator for the time being, the court shall, on receipt of a certificate under the hand  and seal of the Collector, stating the particulars mentioned  in the section, cancel the decree or order complained of so far as it concerns the said watan or any part thereof.  The only objection against the validity of the certificate is that it has  been  addressed  to  a  wrong  court.   Since  we  have overruled  that  objection it follows that  portion  of  the decree   which  concerns  the  watan  properties   must   be cancelled. In  the  result the petition is allowed and  the  decree  in question  in so far as it purports to operate on or  include any right to the office of Patilki and watan lands  attached thereto  at  Kirtgeri as enumerated in  the  certificate  is cancelled.  Under the circumstances of this case there  will be no order as to costs. Petition allowed.