Thadlapalli Sarsothamma and Another vs Yadlapalli Amrithamma

Mohd. Ahmed Ansari, J.—This second appeal by the Defendants has been filed in November 1951 against a decree of the District Judge of Mahbubnagar, allowing the Respondent''s claim for the declaration of title to certain properties as well as for injunction and reversing a decree dated July 31, 1951, of the Munsiff of Kalwa-kurti, who had dismissed the suit.

The Appellant Devind Rao is the husband of the sister of the Appellant Sarsothamma, who is the widow of the last male member of a Hindu family. Govardhan Rao, her husband, died on Thir 26, 1350 Fasli (May 31, 1941) leaving her, his mother and the Respondent, the wife of Pandoranga Rao, his predeceased brother, as the three widows of the joint Hindu family. Before his death he was taken for treatment to Hyderabad and was for some time in the Osmania General Hospital at Afzal Gunj. The Respondent''s case is that four days prior to his death he made an oral will directing his wife and the brother''s widow to enjoy equally his moveable and immovable properties, to maintain his mother, to adopt a son by agreement and in case of dispute to equally divide the properties. It is also her case that the two widows lived amicably till the sister''s husband was appointed by the widow Sarsothamma as her general attorney in Farwardi 1358 F. (February 1949) to settle the quarrels, the two widows entered into an agreement on Farwardi 11, 1358 F. (February 11, 1949) and as their relations continued to be strained they divided the properties equally on Khurdad. 3, 1358 F. (April 8, 1949). Both these documents have been produced in the case and are on unstamped papers, and unregistered. The Respondent claims that she after the division got the sole possession of her shares in the properties and continued to enjoy till the receiver appointed by the Court took over the possession after the institution of the suit. The reason for filing the suit as disclosed in the plaint is that the Revenue Board had granted to Sarsothamma alone the succession to the pattas of the immovable properties and had refused to enter the Respondent as a "Shikmidar", directing her to get a decree of the civil Court and the two Appellants have since been interfering with her possession, hence she should be declared. as owner of half the shares of the properties and the Appellants be restrained from interference with her possession. The suit was instituted on 7-10-1950, i.e., prior to the extension of the Indian CPC to Part-B States, and when the Hyderabad CPC was still operative.

The Appellants in their joint statement denied the making of the will, entering into any agreement, partitioning the properties or the Respondents being in possession of any of the disputed properties till the receiver got possession under the orders of the Court. The additional legal grounds urged for dismissing the suit are that both the agreement and the partition deed are compulsorily registrable and hence inadmissible in evidence, and the claim for the mere declaration of title and for granting permanent injunction in absence of the Respondent''s possession over the properties is not entertainable.

Considerable documentary and oral evidence was adduced in the case. The trial Judge held that the will relied upon by the Respondent was unnatural one, because the testator having a mother had left her to the mercy of the two widows, and although he was alive for four days and in Hyderabad, he had not reduced it in writing. Then, dealing with the evidence of the four witnesses of the. Respondents adduced to prove the will, ho held them unreliable. In support of the finding of there being no will, he relied on the fact that for nearly ten years after the will it was not mentioned anywhere, so much so that there was no reference either in theagreement or in the document relating to partition of the properties. On these grounds, he held the oral will as not proved. As regards the documents of the agreement and partition he held that the producing of only two witnesses, Ranga Rao and Bhugga Rao, who had been also produced to prove the will, is suspicious especially WHEN, others were available to prove them, Whereas THE Appellants had produced several person, WHOSE signatures appeared on them. He relied on the evidence of the person, who was shown as the scribe of one of the documents, AND who swore about not knowing how to write. HE believed this witness and recorded on his evidence that he appeared to be an honest man. Then his conclusion relating to the necessity of registration of these documents was that they WERE registrable. The part of his judgment ABOUT Respondent''s being not in possession was VERY elaborate. He classified the witnesses produced in support of possession into three classes corresponding to the three villages in which the properties were situated, and found their evidence unsatisfactory, as well as the conduct of THE receiver, whom he first appointed and later removed. Finally because of the absence of possession HE held that the suit for mere declaraTION AND injunction did not lay.

The judgment of the lower appellate Court allowing the appeal is extremely unsatisfactory. There is no decision in it about the agreement AND partition documents as having been proved. Dealing with the will, reliance is placed more on the evidence of the Defendants about there being another will for purposes of adoption and AFTER finding such evidence unsatisfactory. the WILL HAS been held as proved. Then the agreeMENT: and the document showing partition were held as not compulsorily registrable. Coming to THE question of possession of the Respondent at THE date OF the suit, it has been held established AND reliance is placed on the several documents prepared by the receiver when he took possession under the Court''s orders. There is not a word IN the judgment about why the opinion of the trial JUDGE, who had recorded the oral evidence, about the credibility of the Appellant''s witnesses should not be accepted. Accordingly the suit HAS been decreed and the appeal allowed.

In these circumstances, two questions arise for our decision:

I. Whether the findings of the lower appellate COURT about the will having been proved and THE Respondent being in possession on the date the suit was filed can be reviewed u/s 602, Hyderabad Code of Civil Procedure, which authorised the High Court IN second appeals to decide issues of facts, notwithstanding the extension of the Indian CPC to Part-B States after the institution OF the suit on April 1, 1951?

ii. Whether the second appeal should be disposed on merits, not with standing the absence of ANY finding BY the lower appellate Court about THE PROOF OF the two documents of agreement AND partition, as well as the unsatisfactory approach TO the question of the proof of the will?

It IS obvious that if Section 154, CPC be construed to be the only saving Section about the rights of appeals, this second appeal by the Defendants IS not covered by it, as the decrees OF both the lower Courts in the case have been passed after the extension of the. CPC to Part-B States and u/s 100 of the Code, the findings of the lower Courts on facts IN second appeals are binding upon this Court. BUT TO hold the Section to be the sole provision, THE maxim ''expressio unlus est exclusio alterius'' will have to be applied and the maxim has not always been applied to the interpretation of statutes. Thus Maxwell''s Interpretation of Statutes (9th Edition) contains the following passages at page 318:

Provisions sometimes found in statutes enacting imperfectly or for particular cases only that which was already and more widely the law have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim ''expressio unius est exclusio alterius''. But that maxim is inapplicable in such cases. The only inference which a Court can draw from such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), is that the Legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution. If the law be different from what the Legislature supposed it to be, the implication arising from the statute, it has been said, cannot operate as a negation of its existence, and any legislation founded on such a mistake has not the effect of making that law which the Legislature erroneously assumed to be so. Thus, when in contending that debts due by corporate bodies were subject to foreign attachment in the Mayor''s Court the express statutory exemptions of the East India Company and of the Bank of England were cited as supplying the inference that corporate bodies were deemed by the Legislature to be subject to that process, the judicial answer was that it was more reasonable to hold that the two great corporations prevailed on Parliament to prevent all questions as to themselves by direct enactment than to hold that Parliament by such special enactment meant to determine the question in all other cases adversely to corporations. A local Act which, in imposing wharfage dues for the maintenance of a harbour on certain articles, expressly exempted the Crown from liability in respect of coals imported for the use of royal packets, and the provision in Turnpike Acts, which exempted from toll carriages and horses attending the Queen or going or returning from such attendance, were not suffered to affect the more extensive exemptions which the Crown enjoys by virtue of its prerogative."

We have therefore to ascertain what is the general law relating to the rights of appeals and whether an intention to alter the general law can be inferred from the partial enactment of Section 184, CPC It is a well established proposition of law that a right of appeal is a substantive right and enures to a litigant on the institution of a suit. The leading case is � Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369 (A). In the case an appeal ordinarily lay to the Privy Council from an order of the Supreme Court of Australia and while the matter was pending in that Court the, law was amended so as to allow an appeal to the High Court. Their Lordships of the Privy Council held that the new Act could not deprive the partv of his right to appeal to the Privy Council. Lord Macnaghten at page 372 remarked:

To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure

The same principle was reaffirmed by their Lordships of the Privy Council to the case of � AIR 1927 242 (Privy Council) . In the case it was held that no right of appeal arose against the decisions of the High Court in Income Tax references before April I, 1926, the date when Act 24 of 1926 came into operation, giving the right of appeal to the Privy Council, as the Act showed no intention to interfere with the finality of decisions already given. Recently the � ''Colonial Sugar Refining Co.''s case (A) has been referred to BY their Lordships of the Supreme Court of India in � Ganpat Rai Hiralal and Another Vs. Aggarwal Chamber of Commerce Ltd., . Here three appeals were connected and came to the Supreme Court on special leave by the Pepsu High Court at Patiala. In one such appeal (No. 152 of 1951) the Official Liquidator had settled the list of contributories and after various steps before the Liquidation Judge of the High court by way of objection PAYMENT orders were passed on 4-6-1946. The correctness these orders was challenged in appeals to the High Court and modifications were made in favour of the liquidator. Then an appeal was filed to the Judicial Committee of the State which held the appeal to the Division Bench barred by time and consequently the order of the Liquidation Judge was restored. Before the next application in the case was made, an Ordinance has made a certificate by the Judge necessary for purposes of Letters Patent appeal. On 2-2-1900 the firm of Murarulal Hari Ram filed the application u/s 152, Civil P. C, for amendment of the order of the Liquidation Judge and the application was dismissed on March 16, 1950. The firm applied for the certificate of leave to appeal, but this again was dismissed. An appeal was preferred from the order; but it was thrown out on the ground of want of certificate from the Single Judge. With regard to this appeal the Supreme Court held that the amendment proceeding was not a continuation of the suit, but was in the nature of an independent proceeding, and was governed BY the law prevailing in the State on the date of its commencement, which had made a certificate of the Single Judge necessary and therefore the decision of the Court was right.

Then in the same authority two other appeals were dealt with and their facts were that an application for the removal of the name of the contributory was granted BY the Liquidation Judge, but the order was reversed BY a Division Bench and on further appeal to the Judicial Committee of Patiala the case was remanded for retrial; thereafter an order for payment was made by the Liquidation Judge on 18-1-1949, and appeals were preferred against it on 19-2-1949. In the meantime, as there were some doubts on the question the Appellants took precaution of applying to the Judge for a certificate; but this was dismissed on 3-3-1949. The Judges of the Patiala High Court found that Section 116 of the Ordinance contained an express provision depriving a person of his right of appeal. In these appeals, their Lordships of the Supreme Court observed:

There is nothing in the Section to justify the view that any taking away of a vested right of appeal retrospectively was intended. The decision in � ''Colonial Sugar Refining Company v. Irving (A) clearly applies to the facts, and the order of the High Court that the appeals are not competent is, in our opinion, erroneous.

This authority of the Supreme Court shows both the negative as well as the positive aspects of the legal proposition which is that the right of appeal is affected if some new proceeding be started after the new enactment is enforced, but is not if the earlier proceedings be continued. In other words the right accrues when proceedings are begun and is not taken away by the change of law except by expressed or necessary intent.

We shall now cite several authorities for the proposition that the right accrues when a suit is instituted and applies not only where the right is taken away altogether; but also where it is modified. In � Daivanayaga Reddiar and Others Vs. Renukambal Ammal, , it was held that an appeal, against a decree in a suit in which the valuation of the relief claimed according to the law in force at the date of the plaint was more than Rs. 5,000, bub at the time of the appeal was less than Rs. 5,000, owing to the amendment of the Court-fees Act in the meanwhile, lay to the High Court and not the District Court. Then in � Ram Singha and Another Vs. Shankar Dayal and Another , it was held that where a party on the commencement of the proceeding had under the old Tenancy Act a right of appeal to the District Judge, he could exercise the right notwithstanding the new rule under the new Tenancy Act making the decision of the Assistant Collector final where the valuation of the subject-matter was less than Rs. 200. The proposition laid in the case is that an appeal is a mere continuance of the original proceedings initiated by the filing of the plaint and the right to continue that proceeding cannot be affected by a new Act, unless it expressly says so. Similarly in � Kirpa Singh v. Rasalldar Ajaipal Singh AIR 1928 Lah 627 (F), it was held that the right of appeal is not a mere matter of procedure but is a vested right which inheres in a party from the commencement of the action in the Court of first instance, and if according to the law in force at the time when the action was started in the Court of first instance the ultimate decision of such Court was appealable, the right to prefer or prosecute appeal therefrom is not affected by subsequent change of the law abolishing the appeal or modifying its forum unless it is so expressly provided in the amending Statute or follows by necessary implications from its terms. Again in. � Sadar Ali and Others Vs. Doliluddin Ostagar, , a second appeal was filed in the Calcutta High Court about 4-4-1928; it was dismissed by a Single Judge who refused to declare the case as a fit one for Letters Patent appeal which had become necessary under an amendment of CI. 15, Letters Patent of the Calcutta High Court after 14-1-1928. It was held that the date of the presentation of the second appeal was not the date which determined the applicability of the amended CI. 15, but the date of the institution of the suit. So also the Madras High Court in � In Re: Vasudeva Samiar alias Vasudeva Pillai, , held that the similar amendment in the Letters Patent of Madras High Court did nob apply retrospectively to second appeals pending in the Court at the time of the amendment. I shall close citation of authorities by referring to the recent Full Bench Case of - Gordhan Das v. Governor-General-in-Council AIR 1932 P&H 103 (I). Here amendments were made in the Rules of the Court enabling a Single Judge to hear certain appeals which were earlier heard by a Bench of two Judges and it was held that a provision of law which deprives a litigant of his right of appeal to a superior tribunal cannot be regarded as a provision which affects only the procedure and practice of the Court; on the other hand, it must be regarded as a provision which affects substantive and substantial rights.

These authorities sufficiently establish the proposition that the right of appeal is a substantial right, accrues to a party when a suit is filed and is not affected by the subsequent change of the law relating to appeals. The suit was filed in this case when the Hyderabad CPC was still in force and u/s 602 of the aforesaid Code a litigant had the right to come to this Court challenging the correctness of the decisions of the two lower Courts on facts. While the suit was pending in the trial Court the Indian CPC was applied to Part-B States and the question which we have to decide is whether the Legislature intended by the limited scope of Section 154 of the CPC to alter the general law. This Section reads as follows:

Nothing in this Code shall affect any present right of appeal which shall have accrued to any party at its commencement.

It is admitted that there is divergence of judicial opinions on the point. According to the Madras High Court in � Kalinga v. Narsaimha 9 Ind Cas 937 (Mad) (J), these words refer to a right of appeal which had become vested in a litigant before this Code came into force, whereas according to the Chief Court of Punjab in � Gandamal v. Piran Ditta 15 Ind Cas 725 (Lah) (K), where second appeals lay under the old Code from certain orders made in execution and none under the new Code, no second appeal would lie in such a case from the order made in first appeal unless the appellate order was made while the old Code was in force. The views of the Calcutta High Court on this point are conflicting. In � Bhadreswar Goloi v. Bishnu Charah Sen 8 Ind Cas 3 (Cal) (L); � Raj Mohan Pal v. Gobinda Chandra Pal 14 Ind Cas 53 (Cal) (M) and � ''Benode Behari v. Ramsarup Chamar 15 Ind Cas 679 (Cal) (N), it was held that where orders relating to the setting aside of auction sales on ground of fraud, or remanding a case were passed after CPC of 1908 came into force no second appeal lay even though the proceedings were started while the old Act was in force. These cases take the view that the orders in the execution proceedings are not decrees under the new Code and the existing procedural law being retrospective the orders cannot be held to be as decrees for purposes of second appeal. The same reasoning should apply to the appellate orders also; yet in � Lai Behary Mitra v. Nagendranath 16 Ind Cas 690 (Cal) (O), it was held that where the decree dismissing an application for setting aside an execution sale on ground of fraud had been made prior to the coming into force of Code of Civil Procedure, a second appeal lay, although the order was upheld by the appellate Court afterwards. The Calcutta High Court has therefore taken the view that where a substantive right has become vested, the subsequent change in procedure does not affect a vested right. These authorities do not lay down that even in cases where the final orders are decrees under both the Codes, the rights of appeal of litigants are saved only when there be decrees under the old Code.

Apart from the Madras authority which is based on sounder reasons, there is an additional ground why Section 154, CPC should not be construed as containing the sole provision for saving rights of appeals under earlier laws in Part-B States. The Code has been applied to these States by the CPC (Amendment) Act (2 of 1951), and under sub-s. (b) of Section 20 of the Act, rights, privileges, obligations or, liabilities acquired, accrued, or incurred under any of the repealed law are saved. Obviously the right of appeal u/s 602, Hyderabad CPC which had accrued on the date of the institution of the suit which was earlier than the application of the Code to this State, would be saved under the aforesaid Section 20.

But it was argued that where there are two provisions in an enactment on the same subject-matter, one dealing with it generally and the other making it conditional, the latter should be taken as the proviso to the general provisions. In this connection reference was made to an authority of the Supreme Court reported in � Kidar Lall Seal and Another Vs. Hari Lall Seal, . But to apply the above rule of construction, the latter provision should be such as to exclude all others. The maxim ''expressio unius est exclusio alterius'' should be applicable to it and reference has already been made to Maxwell on Interpretation of Statutes that it has not always been applied to interpretation of Statutes. It appears that the provision in Section 154, CPC imperfectly enacts that which was already and more widely the law and from this limited enactment an intention to alter the general law should not be inferred. Having regard to Section 20 of Act 2 of 1951, the only inference is that the Legislature has in retaining Section 154 acted under the influence of excessive caution. In these circumstances, the decision of the Madras High Court in � N. Viswanatha Sastri Vs. Sitalakshmi Ammal and Others, , appears to be correct that the expressed saving of the pending rights of appeal does not mean repeal of all other vested rights and the application of the maxim is unsafe in such cases. The conclusion, therefore, is that the Appellants in the present case still have the right of second appeal u/s 602, Hyderabad CPC and can thereby challenge in this Court finding''s of facts.

13a. It has to be determined further whether we should decide this appeal on merits ourselves or remand it to the lower appellate Court for a fresh decision of the whole case. It is clear that the District Judge has given no finding on the correctness of the conclusion of the trial Court about the documents of agreement and partition as not proved. That is an important issue in the case; for if the documents be pot proved then the case of the Respondent that she was in possession by virtue of the agreement is considerably shaken, and her case of being in possession is not explained on the grounds other than the agreement. Then the trial Judge had recorded oral evidence in the case and his opinion about such witnesses carries a greater weight.

Indeed in � AIR 1948 20 (Privy Council) , it has been said that where a question of fact has been tried by a Judge, an appellate Court, which is disposed to come to a different conclusion, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen & heard the Witnesses could not be sufficient to explain or justify the trial Judge''s conclusions. There is nothing in the District Judge''s judgment to show that seeing and hearing of the witnesses was not sufficient to justify the trial Judge''s conclusion on Respondent''s not being in possession. His approach on the question of proof of the will is also unjustified; for in finding the will as proved, he has dealt more with the evidence of the Defendants rather than that of the Plaintiff. These defects vitiate the entire judgment and we feel that even in second appeals under the Hyderabad CPC we are not expected to do the work of the first appellate Court. We therefore reverse the decree appealed against and remand the case to the District Judge to decide all the questions in the case afresh. The costs of this appeal shall abide the final result in the case.