Prabhavati Devi vs Lila Singh

Harries, J.—This is an appeal from an order of the Subordinate Judge of Bhagalpur dated 14th September 1938. The facts giving rise to the appeal can be shortly stated as follows. The appellant who is in the position of a decree-holder is the daughter of the late Mr. Deep Narain Singh, who died on 29th November 1935. The respondent is the widow of the said Deep Narain Singh. Before his death the deceased executed a deed of trust setting apart extensive property for the propagation of education in Bihar subject to payment of certain annuities. He reserved to himself a monthly payment of Rs. 4250 during his lifetime out of which Rs. 3000 per month was to revert to the trust after his death. As to the balance of Rs. 1250, he reserved for himself a power of disposition, and on 6th March 1931, he executed a will bequeathing Rs. 750 per month to the appellant and the remaining Rs. 500 per month to the widow for their respective lives. He left no will dealing with the remainder of his property which therefore devolved on an intestacy.

After Mr. Deep Narain Singh's death disputes arose between the appellant and the respondent. The appellant claimed the intestate estate as sole heir, alleging that the respondent had never been legally married to the deceased. Eventually the daughter brought a suit to establish these allegations. The widow brought another suit, alleging that there was an agreement between the parties to refer their disputes to arbitration and prayed that the dispute should be so referred. These two suits were compromised, and it was agreed between the parties that all disputes existing between them should be referred to Dr. Rajendra Prasad as sole arbitrator.

The points which the arbitrator had to decide were : (1) What were the properties in respect of which Mr. Deep Narain Singh died intestate? (2) How were these properties to be enjoyed by the respective parties?

On 12th August 1937, Dr. Rajendra Prasad made his award in which he decided what properties formed part of the intestate estate. He further held that subject to payment of certain debts, these properties should be enjoyed half and half by the parties for their lives. The question as to who was entitled to the properties after the deaths of the parties was left to be decided in the ordinary course of law. A decree was passed in terms of this award, and eventually the appellant sought to execute the decree.

During the course of this execution application questions arose as to what sums were payable to the intestate estate of Mr. Deep Narain Singh, and a Commissioner was appointed to investigate this question amongst others. After the Commissioner had been appointed, he applied to the Court on 19th July 1938, for directions on certain questions, and by the order under appeal the learned Subordinate Judge gave the Commissioner directions upon the various points and directed the Commissioner to complete his investigation in the light of the directions which had been given. Against that order the appellant has preferred the present appeal, and a preliminary objection has been taken on behalf of the respondent. It has been contended by Sir Manmatha Nath Mukerji who appears for the respondent that this appeal is premature and that the proper time to challenge directions given to the Commissioner, is when an appeal is brought against the final order of the learned Subordinate Judge.

In my judgment, this preliminary objection is well-founded. The Commissioner has been appointed to make inquiries and to ascertain what sums are due to the intestate estate in order that the amount of that estate may be ascertained, so that the parties may be able to enjoy their respective properties in accordance with the award made by Dr. Rajendra Prasad. What the ultimate finding of the Commissioner will be it is impossible to say. He must now act upon the instructions given to him and make his report. It appears to me that until that report has been made and the learned Judge has passed his final order, there can be no appeal. The order under appeal is in the nature of an interlocutory order and is in no sense a final order. It was argued by Mr. Sushil Madhab Mullick on behalf of the appellant that this is an order made u/s 47, Civil P.C., and therefore appealable but, in my view, this is in the nature of an interlocutory order and has no finality about it.

If this order was appealable, then it appears to me that the appellant might have during the course of these proceedings a series of appeals before the final order was ever passed.

Sir Manmatha Nath Mukerji concedes that all the points taken by the appellant in this appeal will be open to him in an appeal against the final order; and in my view it is only when the final order has been passed that the points which the appellant proposes to argue in this appeal can be properly taken. After the final order has been passed, the whole of these questions can be agitated, and the fact that this appeal has been dismissed on the ground that it is premature will in no way affect the rights of the appellant. For these reasons I hold that there is no appeal against this order and I would accordingly dismiss the appeal with costs.

Fazl Ali, J.

I agree.