Khushi Ram, Relu Ram vs Smt. Bhago and another

D. Falshaw, C.J.—These are two applications by different persons Balwant Singh and Khushi Ram under Art. 133 of the Constitution for leave to appeal to the Supreme Court Against the decision of Tek Chand and Gosain, JJ. in R.S.A. No. 736 and R.S.A. No. 1084 of 1959 by which on the 12th of May 1961 they accepted the appeals of Shmt. Sukho in Balwant Singh''s case and Shmt. Bhago in Khushi Ram''s case and restored the orders or the trial Courts.

Leave to appeal is claimed as of right an the allegation that the land in each of the suits was worth more than Rs. 20,000/- and still (sic) and that in any case the suits should be treated as consolidated and the value of the subject matter of the two suits certainly exceeds Rs. 20,000/-.

The allegations regarding the value of the lands in suit were not conceded in either ease by the opposite party, and thus the first step taken was to obtain reports from the trial Court regarding the value of the lands. These reports are to the effect that the land in Balwant Singh''s ease is valued at Rs. 18,000/- and that in Khushi Rams case at Rs. 6,100/-. These valuations have been challenged on behalf of the opposite party, but not on behalf of the petitioners. There does not appear to be any force in the objection of the opposite party, and the matter must be decided on the assumption that in either case the property in suit is individually worth Rs. 20,000/- or more, but that the total value is more than Rs. 20,000/-. The question therefore arises whether the two suits should be treated as consolidated. If they are to be so leave would be granted as of right since the decision of this Court reversed that of the Court of First Appeal.

In order to decide the point it is necessary to state the facts regarding the litigation. The parties in both suits belong to the Dehra tehsil of Kangra district, but not to the same caste or village, the parties in Balwant Singh''s case being Rajputs of a village called Tipri, while the parties in the other suit are Brahmms of a village called Bathra. The first suit to be instituted in point of time was Khushi Ram''s which was instituted in the Court of a Subordinate Judge at Kangra in January 1957. In that case the property had belonged to Relu, the father of Khushi Ram and two other sons Shibn and Beli, the latter of whom died several years before his father leaving a widow Shmt. Bhago After his death Shmt. Bhago cohabited with Shibn by whom she gave birth to two children in 1950 and 1952. Relu died in October 1953 leaving a will on the basis of which his property was divided in equal shares between Khushi Ram, Shibu and Shmt Bhago in the mutations effected by the revenue authorities. In these circumstances Khushi Ram was the plaintiff in a suit instituted against Shmt. Bhago and his surviving brother, claiming that he was entitled to one-half of his father''s estate because Shmt. Bhago had forfeited her right to inherit by her unchastity. Khushi Ram''s suit was dismissed by the trial Court, but decreed by the Senior Subordinate Judge, Dharamsala, in first appeal.

In the other suit which was instituted in October, 1957 the facts were somewhat similar. Surjan Singh had three sons Pohlu, Gian Singh and Bhag Singh The after predeceased his father by second years, leaving as his widow Shmt Sukho who continued to live in her father-in law''s house and as a result of cohabitation with Gian Singh gave birth to three children Pholu also predeceased his father, the present petitioner Balwant Singh being his son After the death of Surjan Singh in October 1953 mutations were at first sanctioned by the revenue authorities by which one-third of Surjan Singh''s land went each to Shmt. Sukho, Balwant Singh and Gian Singh. The mutation in favour of Shmt. Sukho was successfully challenged by Balwanl Singh and so in this suit, which was tried by a different Subordinate fudge sitting at Dharamsala Mst. Sukho was the plaintiff, claiming a declaration that she was entitled to succeed to one-third of the land of Surjan Singh and the defence was raised by Balwanl Singh that Shmt. Sukho had lost hex tight to inherit be reason of her unchastity. The trial Court decreed Shmt. Sukho''s suit, but again the decision was set aside in first appeal by the Senior Subordinate fudge Dharamsala.

The appeal of Shmt. Sukho first came up in the ordinary way before a learned Single Judge, Gurdev Singh, J., who, because there appeared to be a conflict of authorities on the point involved. referred it to a larger Bench. It happened by a coincidence that the same learned counsel were representing the parties in both the cases, with the result that because of the similarity of the point involved the learned Judges of the Division Bench heard and decided both appeals together, the discussion being in a single Judgment in Balwant Singh''s case with a consequential order in the other appeal. The question which arises on these facts is whether this is a proper case for applying the provisions of Order XLV Rule 4 CPC which provides in connection with appeals to the Supreme Court that for the purposes of pecuniary valuation suits involving substantially the same questions for determination and decided by the same Judgment may be consolidated, but suits decided by separate judgments shall not be consolidated notwithstanding that they involve substantially the same questions for determination.

The learned counsel for the petitioners relied on the decisions of the Madras High Court in Vasi Reddi Srichandra Mouleswara Prasada (sic) Secretary of State, AIR 1932 Mad 125 and Lakshminarasimhacharyulu v. Ratnam, AIR 1949 Mad 739 (FB) in both of which it was held that the word ''judgment'' in Order XLV Rule 4 CPC means the Judgment appealed against that is, the judgment of the High Court and thus the provisions of Rule 4 apply to a ease in which the suits were decided by the High Court by the same Judgment though they were not decided by the same judgment in the lower Court. Then, is, however a clear distinction between those cases and the present ones in that it would appeal that in the cases decided by the Madras High Court against whose decisions leave was being sought for appeal to the Privy Council the parties in both the cases were the same as well as the points involved. In fact there appears to have been no reason in either of those cases why the suits should not have been consolidated and tried together at an earlier stage. On the other hand in the present cases the parties are different, belonging to different castes and different villages, and a though to some extent the main point of law involved is common to both cases there are differences, for instance that in Khushi Ram''s case the father had left one-third of his estate to the widow of his predeceased son by a will. The two suits were filed by different Courts in the first instance and although the Court of Appeal was, the same in both cases, the appeals were decided on different dates.

Neither party has been able to cite any case in which the parties were completely different and it would seem to have been by a sheer coincidence, due to the fact that the counsel involved were the same, that the other case was beard by the same learned judges along with the case which had been referred to a larger Bench, in the circumstances. I am of the opinion that simply because the two cases were heard together and that only one main Judgment was written deciding both the appeals they ought not be consolidated under Order XLV Rule 4 Civil Procedure Code.

Such being the case it is necessary to decide the leave applications on the basis that the property in either ease is not worth Rs. 20,000/-, and in order to grant leave we must certify that the cases are fit for appeal. In my opinion this must be held to be so, since the difficulty of the point involved receives prima facie support from the fact that a learned Single Judge thought a necessary to refer the appeal which came before him to a larger Bench, and although the authorities seem to point to the conclusion that by unchastity a widow does lose her right to retain her husband''s estate or even to succeed in future, the position in the present cases seems to be somewhat complicated by the finding of the learned Judges that in accordance with the custom of the parties in these cases it seemed probable that the widows had entered into some kind of so-called Karewa marriage with the brothers of their husbands. Thus the question which might arise is whether, if any kind of marriage is found to have taken place, they can still be regarded as widows. I would accordingly accept these applications and grant a certificate of fitness in each case, but the cases are treated as separate and not consolidated. The parties will bear their own costs on the applications.

Harbans Singh, J.

I agree.