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Judgment
Kulwant Sahay, J.—These are two appeals under the Letters Patent against the decision of his Lordship the Chief Justice, arising out of an application under Order 21, Rule 100, Civil P.C., and of a suit instituted by the respondents against the appellants for certain declarations. There was a third suit instituted by the present appellants against the respondents, which was dismissed by this Court and against which dismissal an appeal under the Letters Patent has already been dismissed. Both the suits and the application under Order 21, Rule 100, Civil P.C., were filed in the Court of the Subordinate Judge at Cuttack. They were removed from the Court of the Subordinate Judge to this Court and were heard in its extraordinary original jurisdiction under Clause 9, Letters Patent, of this Court. A point was taken by the appellants that the order of removal of the cases from the Court of the Subordinate Judge to this Court was illegal inasmuch as the reasons for so doing we''re not recorded on the proceedings of this Court, as required by Clause 9, Letters Patent. It is true that the reasons were not recorded; but the mere non-recording of the reasons does not in any way affect the jurisdiction of this Court and does not make its decision illegal. It is only an irregularity which does not affect the jurisdiction. Learned Counsel for the appellants conceded this point and did not press it further.
The facts are shortly these:
One Golok Prasad had a son Ram Prasad Bose by his first wife, and he had four sons by his second wife. Ram Prasad Bose married one Ahladini alias Gangamani, and he died on 16th February 1869. Before his death he had executed a document called anumati patra giving authority to his wife to adopt a son. The document provided that his wife should adopt his father''s youngest son who was then called Chema, but that if there was any obstacle to take him in adoption according to the Shastras then that boy would be made a sneha-putra, or she may adopt anyone else whom she wants "with the permission of my father," the vernacular word used for the words "with the permission of" being "matanusare."
After the death of Ram Prasad his widow Ahladini adopted one Krishna Prasad on 23rd November 1884. Krishna Prasad died in 1909 leaving an infant son Gopal Prasad who was born in 1908. The widow Ahladini died in September 1920. On her death a suit was instituted by the surviving sons of Golok Prasad by his second wife, in the years 1921 for recovery of the entire estate of Ram Prasad as the next reversionary heirs, and for a declaration that the adoption of Krishna Prasad by the widow was invalid for want of authority, and also that in fact no adoption was made. The suit of the reversioners was dismissed by the Subordinate Judge and the High Court on appeal affirmed the decree of the Subordinate Judge.
The reversioners then went in appeal to the Privy Council. The decision of the Privy Council is reported in AIR 1930 242 (Privy Council) . Their Lordships of the Privy Council held that the adoption was invalid inasmuch as the condition precedent, viz., the permission of the father as laid down in the anumatipatra had not been complied with, the father having died in the year 1873 before the date of the adoption. It was contended before their Lordships that the vernacular word "matanusare" had been incorrectly translated as "with the permission of," the true translation being "according to the opinion or advice of." Their Lordships of the Privy Council accepted the official translation and held that with the death of Golok Prasad the power to adopt given to the widow of Ram Prasad came to an end. Their Lordships accordingly made a decree for ejectment against the defendant Gopal Prasad with mesne profits from the death of Ahladini to the date when possession was delivered to the plaintiffs; and they made a declaration that Krishna Prasad was not the adopted son of Ram Prasad. In due course in execution of the decree of the Privy Council the reversioners obtained delivery of possession of the estate and thereby they dispossessed Gopal Prasad of all the properties forming the estate of Ram Prasad of which he was in possession. It may be noted here that after the decision of the Privy Council, Gopal Prasad filed an application to the Privy Council for a review of the judgment, which was ultimately rejected.
On 2nd January 1931, Gopal Prasad as the shebait of an idol Radha Madhab Jiu Thakur, filed an application under Order 21, Rule 100, Civil P.C., complaining of his dispossession in execution of the decree, on the allegation that a portion of the estate of Ram Prasad had been endowed to the Thakur by Krishna Prasad under a deed of endowment, dated 14th September 1906, and that he was in possession of the endowed property as the shebait of the Thakur and in that capacity he could not be dispossessed of the endowed property in execution of the decree inasmuch as the decree was not binding upon the idol. A notice of this application being given to the decree-holders, they on 29th January 1931 instituted a suit in the Court of the Subordinate Judge for a declaration that the endowment was invalid inasmuch as Krishna Prasad not being the adopted son of Ram Prasad had no authority to make the endowment, and for a permanent injunction restraining the defendants, viz., the idol and Gopal Prasad as the shebait, from proceeding with the objection under Order 21, Rule 100, and from getting an order of restoration of possession in that proceeding.
These are the two matters which were withdrawn by this Court from the Court of the Subordinate Judge and heard by this Court in its extraordinary original jurisdiction. The learned Chief Justice dismissed the application under Order 21, Rule 100 and decreed the suit of the reversioners, and it is against that decision that the present appeals under the Letters Patent have been preferred to this Court.
I shall first take up the appeal in the reversioners'' suit, which is Letters Patent Appeal No. 87 of 1932. The first point taken by the learned Counsel for the appellant is that the learned Chief Justice was wrong in holding that a person cannot have two capacities and that the decree of the Privy Council is binding on Gopal Prasad in his individual capacity as well as in his capacity as the shebait of the Thakur. Learned advocate for the respondents concedes the point that Gopal Prasad can set up his title as the shebait and can validly urge that the decree of the Privy Council in the previous suit is not binding upon him in his capacity of the shebait. That a decree obtained against a person in one capacity can be resisted by him in another capacity is concluded by authorities:
Reference may be made to Babajirao v. Laxmandas (1903) 28 Bom 215, Kartick Chandra v. Ashutosh Dhara (1912) 39 Cal 298, Upendra Nath Kalamuri v. Kusum Kumari Dasi AIR 1915 Cal 327 , Somwar Gir Vs. Goswami Mayanand Gir and Another , Ramanathan Chettiar v. Levvai Marakayar (1907) 23 Mad 195 and Murigeya v. Hayat Saheb (1899) 23 Bom 237. As the point is conceded by the learned advocate for the respondents it is not necessary to pursue the matter further. The second contention of the learned advocate for the appellant is that the decision of the Privy Council in the previous suit is not binding on the idol represented by the shebait. This contention is also conceded and is covered by the authorities mentioned above, and need not be discussed at all.
The next point for consideration is the construction of the anumatipatra or the deed of authority. It is contended that the question of construction of the deed does not arise in the present suit, as it is not the basis of the suit and that the plaintiffs have not in their plaint asked for a construction of the deed, and it is argued that even if the question does arise, we have to decide it on the footing that the official translation was incorrect. As regards the first contention, it is true that the plaintiffs did not in their plaint ask the Court to construe the deed; but the deed is an important piece of evidence in the case and the rights of the parties depend upon the true construction thereof. It is true that the official translation, upon which the Privy Council proceeded in the previous suit, is not binding on the present defendant, but the learned Chief Justice proceeded on the assumption that the translation contended for by the defendant-appellant was the correct translation of the vernacular word "matanusare."
It is contended that the two translations affect the rights of the parties differently; if the word "matanusare" be translated as "with the permission of" then it is conceded that a condition precedent was imposed, and if the person whose permission was to be obtained be dead the authority comes to an end; on the other hand if the correct translation be "in accordance with the opinion or advice of" the father, then it is contended that such opinion or advice may be disregarded and the widow was not bound to follow it. Reliance has been placed upon a number of decisions in support of the proposition that where a mere direction is given by the husband to the widow to act according to the advice of some other person in the matter of the adoption, such advice may be disregarded.
In Surendro Nandan v. Sailaja Kant (1891) 18 Cal 385, the Will of the husband provided that the widow should adopt a son with the good advice and opinion of one Krishna Gobind. The widow tried to obtain the consent of Krishna Gobind before the adoption but he refused to give such consent; the widow then adopted the plaintiff in that case without such consent; and it was held that the adoption was not invalid. In disposing of this point the learned Judges observed:
We think that all that the testator intended was to suggest that his wife would exercise a sound discretion if in the matter of choosing a boy to be adopted she consulted Krishna Gobind, a man in whom he, the testator, seems to have reposed confidence. Looking at the religious efficacy that ensues from the adoption of a son by a widow to her deceased husband, we think the Court should not be too astute to defeat an adoption, but should rather do its utmost to support it, unless such adoption is clearly in excess or in breach of the power to make it.
The vernacular words used in that Will were "sutjukti paramarsha," which were translated as "good advice." The Privy Council in construing the present deed no doubt proceeded on the official translation of the word "matanusare," viz., "with the permission of," but their Lordships in construing the deed looked at the surrounding circumstances and they laid it down that the duty of the Court was to ascertain intention from the words used in the document, and the surrounding circumstances are to be looked into merely with the object of ascertaining the real intention of the executant from the words used by him.
They further referred to the fact that, although the paramount intention that often actuates a husband to empower his wife to adopt a son to him is religious, yet sometimes a husband mainly by mere secular motives empowers his wife to adopt a son or sons to continue his line of ancestors and to inherit his property and to keep up his own name; and in the present case after a consideration of the surrounding circumstances as well as on a consideration of the intention gathered from the word used by the husband, their Lordships came to the conclusion that it was the intention of the husband that the adoption should be made in accordance with the views of the father. They referred to the fact that Ram Prasad was comparatively young (indeed it appears that he died quite young on a sudden attack of cholera) and his wife was a young girl of about 13 or 14 years of age. On a consideration of this fact their Lordships held that it was unlikely that he could ever have wished that his girl wife should have an unrestricted choice in the selection of his adopted son to the extent of allowing her to bring a stranger to inherit his property.
These considerations arise even if the translation alleged by the defendant be accepted as correct. It is contended that their Lordships did not proceed upon the assumption that the result would be the same if either translation was accepted. That is no doubt true; but the considerations which influenced their Lordships to hold that unrestricted power was not given to the widow to adopt arise even upon the translation set up by the defendant. The words according to the translation put by the defendant are "in accordance with the opinion or advice of the father." She was not at liberty to disregard the opinion or advice of the father.
The circumstance''s which influenced the Judge''s in the case of Surendra Nandan v. Sailaja Kant (1891) 18 Cal 385 were different from those in the present case. The intention of the husband is manifest from another contemporaneous document, viz., the Will executed by him on the same date as the anumatipatra in which he directed that certain properties shall be held and enjoyed by his wife Ahladini by taking a son in adoption for which be had executed an anumatipatra. That shows that the motive of the husband was more secular than religious.
It appears from the judgment of the Subordinate Judge in Suit No. 487 of 1921 (which went up to the Privy Council) that Golok Prasad the father, on the death of Ms son Ram Prasad, filed the anumatipatra and the Will of Ram Prasad before the Collector of Balasore praying that the estate of his deceased son might be taken over by the Court of Wards. The estate which his son Ram Prasad was dealing with by his Will was the estate he had acquired from his maternal grandfather, and therefore the other sons of Golok Prasad from his second wife could have no title or interest in it.
Ram Prasad was quite a young man, and the Will and the anumatipatra appear from all the surrounding circumstances to have been executed at the instance of, or at least, with the advice of Golok Prasad, and it is unlikely that Ram Prasad should have intended to give unrestricted power to his girl wife to adopt. His real intention was that the adoption should be made according to the advice and opinion of his father Golok Prasad. On a consideration of the terms used in the anumatipatra as well as of the surrounding circumstances, I am of opinion that the widow Ahladini was not given an unrestricted power to adopt and that the authority to adopt became invalid after the death of Golok Prasad.
The adoption being invalid it follows that the deed of endowment executed by the adopted son creating the endowment in favour of the Thakur was invalid, and the defendant Gopal Prasad cannot claim the properties in dispute in his capacity as the shebait of the Thakur and he cannot resist the plaintiff''s possession thereof. These were all the points which arose upon the decision appealed against. The learned Counsel for the appellants has however raised certain other points which were not raised in the original trial.
It is contended that the plaintiffs were not entitled to any decree at all. The plaintiffs had asked in the plaint for certain declarations and for a perpetual injunction. As to the prayer for injunction it is contended that the plaintiffs are not entitled to the injunction, and that if the permanent injunction cannot be given the declarations asked for cannot be granted. As regards the prayer for injunction reference is made to Clauses (a) and (b), S: 56, Specific Relief Act. The clauses run as follows:
An injunction cannot be granted: (a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; (b) to stay proceedings in a Court not subordinate to that from which the injunction is sought.
It is contended that the two conditions must be satisfied before an injunction can be granted, viz., that (1) the proceeding sought to be restrained must be pending in a Subordinate Court, and (2) the injunction must be necessary to prevent multiplicity of proceedings. In this case the suit and the proceeding sought to be stayed were pending in the Courts of co-ordinate jurisdiction, and therefore Clause (b) operates and the plaintiffs were not entitled to the injunction. It may be noted that the two proceedings were pending in the same Court, that is, the suit had been instituted in the same Court; in which the application under Order 21, Rule 100, Civil P.C., had been filed.
As is pointed out in Appu v. Raman (1891) 14 Mad 425 Clause (b), Section 56 apparently is taken from Section 24(5), English Judicature Act, of 1873, which was as follows:
No cause or proceeding at any time pending in the High Court of Justice, or before the Court of appeal shall be restrained by prohibition or injunction.
But the same Section provided that:
nothing in this Act contained shall disable either of the said Courts from directing a stay of proceedings in any case or matter pending before it, if it shall think fit.
As was pointed out by Sir George Jessel, M.R., in the case of In re Artistic Colour Printing Co. (1880) 14 Ch D 502, the Court never did by injunction restrain a proceeding: what it did was to restrain a party to a cause from going on. Therefore when the Act says, "no cause or proceeding shall be restrained by injunction," it means that no party shall be restrained from going on with his action. As in the present case both the proceedings were pending in the same suit, Clause (b) of Section 56 has no application.
The Court can always regulate its own proceedings. This was pointed out by Mukherji, J., in Ram Sadan Biswas Vs. Mathura Mohan Hazra and Others, , where the learned Judge observed that the prohibition contained in Clause (b) of Section 56 operates only in respect of Courts which are not subordinate in the sense that they are co-ordinate or superior and not in respect of the Court itself which must always be taken as competent to regulate its own proceedings. As regards Clause (a) it is contended that there is no question here of multiplicity of proceedings. It is contended that what is meant by multiplicity of proceedings is as illustrated in the illustrations (p) and (q) of Section 54 of the Specific Relief Act.
In the present case there is no apprehension of a multiplicity of proceedings. Reliance is placed upon the observations of Sir Lawrence Jenkins, C.J., in Karnodhar Haldar v. Hari Prosad (1910) 37 Cal 731, where in considering the provisions of Clause (e) of Section 54 of the Act the learned Chief Justice observed:
The clause has application to a well-known condition of affairs which is absolutely remote from that which we have to deal in this case. It is not as though the plaintiffs here would have to bring repeated suits or to make repeated applications or to take repeated proceedings for the purpose of establishing or safeguarding their rights, or of preventing the acquisition of rights by the defendant.
And it is argued that there is no apprehension of any such repeated proceedings or repeated applications so far as the present case is concerned. That was a case in which a suit had been instituted with a prayer to have it declared that the defendant had no title to the lands in suit and to establish that the plaintiffs were not bound by a decree in a title suit for perpetual injunction restraining the plaintiffs in the former suit from taking possession of the lands in suit by executing the decree of the previous title suit. The second suit had been instituted before the plaintiffs in the previous suit had taken any steps to execute the decree, nor did it appear that he had even threatened to execute it. In the present case the decree of Privy Council has already been executed and possession delivered to plaintiffs, and the defendant has already filed an application under. Order 21, Rule 100 of the Code of Civil Procedure. Under the circumstances I am of opinion that the contention based on Clauses (a) and (b) of Section 56 are not sound and cannot be given effect to
As regards the contention that no declaration can be granted if the perpetual injunction cannot he granted, it is sufficient to refer to the decision of the Madras High Court in Sethurayar v. Shanmugam Pillai (1898) 21 Mad 353. That was a suit in which the plaintiff wanted a declaration that the defendant was his benamidar and further asked for an injunction restraining the defendant from executing a decree obtained by him upon the basis of the mortgage bond in which the plaintiff claimed beneficial interest. It was held that the injunction prayed for could not be granted u/s 56(b) of the Specific Relief Act, but if the plaintiff''s case be true he was entitled to the declaration granted by the Munsif.
It is next contended that the claim for the declaration in the present case was barred by limitation under Article 120 of the Indian Limitation Act. This article prescribes a period of six years'' limitation from the time when the right to sue accrues. It is contended that there was an invasion of the plaintiffs'' right when the widow Ahladin died on 17th September 1920, which was more than six years before the present suit. The name of the Thakur stood recorded in the Collectorate as well as in the record-of-rights, and the possession of the Thakur was notorious, undoubted and public. Now, the right which accrued to the plaintiffs on the death of the widow was not the right to sue for a mere declaration but the right to bring a suit for possession, for which the period of limitation is twelve years under Article 141 of the Indian Limitation Act. The plaintiffs, however, succeeded in obtaining possession within twelve years from the death of the widow. Their right to bring the present suit for the declaration accrued when the defendant applied under Order 21, Rule 100, to be restored to possession, and that was on 2nd January 1931, and the present suit was instituted on 29th January.
In a similar case it was held by the Privy Council in AIR 1930 270 (Privy Council) , that there can be no right to sue until there was an accrual of the right asserted in the suit and further, its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit was instituted. In this case the infringement of the right, or at least a clear and unequivocal threat to infringe that right by the defendant took place on the filing of the application under Order 21, Rule 100. It is thus clear that the claim for the declaration is not barred by limitation.
It is next contended that the plaintiffs could not obtain a decree making the declaration without giving evidence as regards the facts alleged in the plaint as constituting a cause of action for the suit, viz., threat to obstruction in the possession of the plaintiffs as stated in para. 22 of the plaint. It is true that no evidence was given in the present case but the cause of action really accrued to the plaintiffs on the defendant''s filing the petition under Order 21, Rule 100 and not on the allegation contained in para. 22 of the plaint. There is to my mind no substance in any of these contentions.
Lastly, it is contended that the dedication although purporting to be made by the adopted son was really made by the widow Ahladini herself and she was entitled to do so of a reasonable share of the estate, and the dedication by the de facto owner with the consent of the de jure owner to fulfil pious motives is a valid dedication. For the plaintiffs it is pointed out that there was no such suggestion in the application under Order 21, Rule 100 nor in the written statement originally filed in the suit, nor even in the additional written statement filed subsequently. In fact the allegation contained in the written statement was that the dedication was by the adopted son Krishna Prasad.
No issue was raised on the point as it did not arise on the pleadings, nor was the point taken in the grounds of appeal to this Court. It is further pointed out that even assuming the dedication to be by the widow herself, it was not a valid dedication, as the dedication was in respect of a considerable share of the estate. What has been laid down is that a dedication of a small portion of the estate may be made by the widow on appropriate occasions.
In Sardar Singh v. Kunj Bihari Lal AIR 1922 PC 261, the Privy Council pointed out that the powers of the Hindu female who holds the property are wider with reference to the religious acts in connexion with the actual obsequies of the deceased and the periodical performance of the obsequial rights prescribed in the Hindu religious law which are considered as essential for the salvation of the soul of the deceased, than in respect of the acts which although not essential or obligatory are still pious observance which conduce to the bliss of the deceased''s soul, and if performed are meritorious so far as they conduce to the spiritual benefit of the deceased. In one case, if the income of the property, or the property itself, is not sufficient to cover the expenses, she is entitled to sell the whole of it. In the other case, she can alienate a small portion of the property for the pious or charitable purpose she may have in view.
On reference to the decision of the High Court reported in Kunj Behari Lal v. Laltu Singh AIR 1918 All 40, it will appear that the share dedicated was about one-eightieth of the entire estate; in Ram Sumaran Prasad v. Gobind Das AIR 1926 Pat 582 the property gifted was not more than one-fortieth part of the entire estate; in V. Tatayya v. G. Ramakrishnamma (1911) 34 Mad 288 the property gifted bore a small proportion to the entire estate.
In the present case the property endowed is almost one-third of the entire estate as will appear from the application of the mother of Gopal Prasad for appointment of a guardian of the minor. The dedication is of one-half of the estate bearing Tauzi No. 38. Moreover, it is necessary that the gift for pious purposes must be on some appropriate occasion. No such occasion is shown in this case. Assuming therefore that the dedication in the present case was by the widow herself, even then it cannot be supported as a valid endowment.
The result is that Letters Patent Appeal No. 87 must be dismissed with costs. In this view of the case it is not necessary to consider on merits the Appeal No. 86 arising out of the application under Order 21, Rule 100. It is conceded that the petitioner the idol was in possession and that he could not be dispossessed in execution of the decree of the Privy Council obtained against Gopal Prasad in his individual capacity; but having regard to the result of the suit instituted by the reversioners in which their title has been declared and the endowment has been held to be invalid, there is no necessity to investigate the point and to order restoration of possession to the idol.
This appeal also must therefore be dismissed with costs. There will be no separate hearing fee in this case.
Mohammad Noor, J.
I agree.