Patna High Court
Sitesh Kishore Pandey And Ors. vs Ramesh Kishore Pandey And Ors. on 5 September, 1980
Equivalent citations: AIR1981PAT339, 1981(29)BLJR382, AIR 1981 PATNA 339, (1981) BLJ 372 1981 BLJR 382, 1981 BLJR 382
JUDGMENT Medini Prasad Singh, J.
1. This second appeal filed by defendants 1 and 2 and the deity Ram Jankiji (D. 9) raises a question as to the validity of the line of succession of Shebaits after the death of Kaushal Ki-shore Pandey (who died in 1962) as laid down in Samarpannama (Ext. 9) dated 10th April 1926, executed by Ramudar Pandey and Ram Manohar Pandey. It raises a further question as to whether the lower appellate Court while dismissing the appeal before it, was competent under Order 41, Rule 33 of the Code of Civil Procedure to set aside the decree granted by the trial Court in favour of defendants 2 and 3 in absence of any appeal by the plaintiffs and when the appeal was filed only by defendants 1 and 9. This will clearly appear from the questions formulated by this Court by order No. 6 dated l'3th August 1979. The main appellant is defendant No. 1 Sitesh Ki-shore Pandey, the eldest son of Kaushal Kishore Pandey. Appellant No. 3 is his son. Defendant No. 1 has lost in both the courts below. The following genealogical table will show the relationship between the parties:
DHARAMNATH PANDEY _______________________|________________ | | | | Ramrup Ramkishore Janki Kishore Kishun Kishore (dead) _______|________ = Kanya Kumari | | | (Widow) Kaushal Kishore Ramudar Ram Manohar (dead in 1369 Fs) (died in 1348 Fs) (died in 1347 Fs) ______________|_________ | | Sitesh Kishore (D.1) Ramesh Kishore (P.1) = Adya Devi (D.6) | | Shyam Kishore (P.2) | (minor) ____________________ |_________________ | | | | Bimlesh Ramesh Awadhesh Mithilesh (D.2) (D.3) (D.4) (D.5) | Ram Mohan (D.7) It is agreed that the line of succession is valid up to Kaushal Kishore Pandey. It is also an admitted fact that after his death in 1962 his elder son Sitesh Kishore acted as Shebait. The plaintiff-respondents have challenged the validity of his appointment as Shebait. He has been removed from Shebaitship by the two Courts below on account of his omissions and commissions, that is, executing sale deeds and transfers of a number of properties of the deity, for cutting trees of the deity and amalgamating the land of the deity with his own land etc. The Subordinate Judge, Darbhanga by his judgment dated 28th June 1967, held that after his removal from Shebaitship, the plaintiffs and all the adult members of defendants second party, namely, the sons of defendant No. 1 were entitled to be Shebaits of Thakurji as provided in the deed of endowment (Ext. 9) and directed defandant No. 1 to make over charge to them within two months from the date of his judgment. Defendant No. 1 and the deity took an appeal to the District Judge, Darbhanga. It was heard by the Second Additional District Judge, Darbhanga who affirmed the judgment of the trial Court with some modification holding that P.W. 1 was alone the nearest agnate of the founders and he alone was entitled to be Shebait under law, that defendant second party being remote ag-natic relations of the founders were not entitled to be Shebaits, To this extent, modification was made in the decree of the trial Court and with this modification he dismissed the appeal. Hence this second appeal by defendants 1, 2 and 9.
2. In order to appreciate the two contentions raised on behalf of the appellants it is necessary to quote here the material provisions of the deed of endowment (Ext. 9) which was created on 10th April, 1926, and under which Kaushal Ki-shore Pandey and his eldest son and others were appointed Shebaits. They are as follows:--
"We the executants shall remain managers of the aforesaid property on behalf of Shri Sanehi Siromani Rai Sri Ram Jankiji during our lifetime. If any male issue is born to us the executants, in that case, after the death of us the executants, the said male issue shall be manager. If the said male issue is minor, in that case, Babu Kaushal Kishore Pandey cousin brother of us the executants shall be the guardian of the said minor and manage the affairs till he attains majority. After attaining majority, he himself shall manage the affairs. If several sons are born, all the sons, the heirs, shall be the managers of the said Dewottar property. In this way, male issue of the family of us the executants shall be Shebait and manager, generation after generation.
(2) If no male issue is born to us the executants, and if we die issueless, in that case, the two widows of us the executants shall be the managers of the dedicated property aforesaid and they shall manage the entire affairs with the advice of Babu Kaushal Kishore Pandey. After their death, Babu Kaushal Kishore Pandey shall be the manager. After his death, his eldest son shall be the same. In this way only the eldest son and daughter's son shall be the manager. If the eldest son dies issuless in that case, the second con shall be manager thereof."
(3) The name of Shri Sanehi Rai Sri Ram Jankiji shall be recorded in milkiyat column in Dakhilhari register, as absolute owner thereof, through the manager, that is, us the executants, on removal of our names. After the death of us the executants, the name of Shri Sanehi. Siromani Rai Sri Ram Jankiji shall remain entered as usual. Only the name of the manager for the time being shall continue to be noted therein. We the executants and our heirs and representatives or Babu Kaushal Kishore Pandey or his heirs who shall remain managers cannot be removed by anybody from managership of the dedicated property as per stipulations mentioned in paragraphs Nos. 1 and 2. Only this much, that if any act is done contrary to the stipulations of the said Samarpannama the same shall be null and void.
(4) * * * (5) If no one remains in the family of us the executants or our heirs and representatives and Babu Kaushal Kishore Pandey, in that case from amongst the nearest Sagotra, Sapinda one who wj.ll be the head member of the family, the same shall be jhe manager of the Dewottar property. If no one remains amongst the Sapinda and if a male issue remains to the daughter of me, Ram Manohar Pandey, as mentioned above, in that case the management of the dedicated property shall be made through the male heir of the said daughter. If no male heir remains in the family of the said daughter also, in that case, the management of the said property shall be made through the Mahanth for the time being of the Asthan Rasiknivas at Janakpur and in that case it will be treated as Jhopra (Branch) of the said Asthan. We the executants or our heirs shall have no concern with any dedicated property."
3. Mr. Prem Lal contended that on a true construction of paragraphs 2, 3 and 5 of the deed the Shebaitship absolutely vested in Kaushal Kishore and his heirs and it could never revert to the heirs of the founders. He submitted that the lower appellate Court did not properly construe the deed of endowment and it has shown ignorance of the provisions of paragraph 5 of the deed. In support of his contention he has relied on Monohar Mukherji v. Bhupendra Nath Mukherji, ILR (1933) 60 Cal 452 : AIR 1932 Cal 791 (FB). Counsel urged that the present case would come under question No. 5 formulated for consideration of the Full Bench in that case. It may be stated that six questions had been formulated by the re-
ferring Bench for consideration by the Full Bench. Question No. 5 at page 464 runs as under:
"Whether Promotho Nath Mukherjee v. Anukul Chandra Banerji (29 Cal WN 17) : (AIR 1925 Cal 225) was correctly decided in so far it was, in that case, held that as regard persons not in existence in founder's lifetime, a direction could not validly be given by the founder in his will that the person senior in age among all heirs of the first Shebait should succeed to the office of Shebait?"
The answer given by the Full Bench is at page 503 and it is 'Yes'. In my opinion, the contention is unsound. In that Full Bench case the founder Jagmohan who created the Debuttar provided, by his will, that his eldest son should be the first Shebait and that after his death his other sons one after another would be Shebaits in the order named. After the death of all the sons of the testator, the office of Shebait was to be held from time to time by the eldest male member of the family for the time being, and no daughter or daughter's son could ever hold the office. The appellant Manohar of that case claimed Shebaitship on the ground that he was the eldest male member of the family. It was not disputed that he was the eldest member; but the fact was that he was not born during the lifetime of the testator. It was held that the provisions in the will to the effect, that the eldest male member of the testator's family should be the sole Shebait, was ineffective in law to entitle such a male member to the office when he was not in existence till after the testator's death. It was further decided in that case that Shebaitship was not merely office, it was property as well and in regard to disposition of Shebaiti right the rule in Tagore v. Tagore, (1872) 9 Beng LR 377 : (1872) Ind App Sup Vol. 47 was applicable. This decision was approved by the Privy Council in Ganesh Chandra v. Lal Bihari, (1936) 63 Ind App 448 : (AIR 1936 PC 318) and again in Bhabatarini v. Asha-lata, (1943) 70 Ind App 57 : (AIR 1343 PC 89). I think that this decision is of no help to the appellants. It has in fact accepted the principles laid down in the well known Tagore case ((1872) 9 Beng LR 377). The Tagore; case laid down two separate principles;
(a) that a person capable of taking under a will must be such a person as could take a gift inter vivos, and therefore, must either in fact or in contempla-
tion of law be in existence at the death of the testator, and
(b) that all estates of inheritence created by gift or will, so far as they are in-consistent with the general law of inheritence are void as such, and that by Hindu Law no person can succeed thereunder as heir to the estates described in the terms which in English Law would designate as estates tail.
The Calcutta Full Bench followed the principles of the Tagore's case. I do not see how this Full Bench case Monohar v. Bhupendra (AIR 1932 Cal 791) (supra) can be of any assistance to the appellants. It is, I think, against them. The facts of the present case resemble the facts in Ganesh Chandra Dhur v. Lal Behary Dhur, (1936) 63 Ind App 448: AIR 1936 PC 318. In that case the testator Luckey Narain left three sons, two of whom Kar-tick and Ram were appointed by him to be the first Shebaits and the provisions of his will marked out an invalid and illegal line of descent to take effect upon their death. On the death of those two sons, there survived the remaining third son Ganesh. one son of Kartick whose name was Netye and four sons of Ram namely, Lal Behary and others. Ganesh was not so uninstructed as to claim that he alone inherited the Shebaiti right but only claimed hat he was one of the persons entitled as heirs of his father. This was made clear by paragraph 6 of his affidavit of 15th August, 1933, and it was accepted that as Lord Williums J. put it in his judgment, "Ganesh would succeed along with the heirs Ram and Kartick as joint heirs of the testator". Under the Dayabhag, as under Mitakshara, grandsons whose father is dead take simultaneously with sons and per stirpes. The Judicial Committee having held overruling the appellate Bench that the line of descent prescribed by the testator to take effect upon the death of Kartick and Ram was illegal, applied "the ordinary Hindu Law of Succession and restored the decree of Panckridge, J. that the persons to succeed the nominated sons were 'the heirs of the testator".
It is to be noticed that Lal Behary and Netye were in life at the death of the testator and they were respectively the next eldest male lineal descendants of Ram and Kartick to take respectively on the death of the two sons of the testator; still it was held that the provisions of Clause II of the will in that case so far as they related to the holding of the office of Shebait after the deaths of Ram and Kartick constituted an invalid attempt to lay down a line of succession which was not permissible under the Hindu Law and in holding so the Judicial Committee applied the second principle laid down by Tagore case (supra). The decision of the Privy Council has been approved in several Supreme Court cases including AIR 1979 SC 1314. The instant case, I think is hit by the second principle of the Tagore case, namely, that no one can create an estate unknown to Hindu Law. In the instant case the deed of endowment (Ext. 9) states in para 2 that Kaushal Kishore shall be the manager and after his death his eldest son shall be the same and in this way only the eldest son and daughter's son shall be the manager. Such a line of succession created by the founder is unknown to Hindu Law. He has not disposed of the Shebaiti absolutely and completely in favour of Kaushal Kishore or of another. He has made a grant in his favour for life and then in succession to the eldest son and to the eldest son of the eldest son. He has thus created successive life estates which is not permissible under the Hindu Law of inheritance. Paragraph 3 of the deed is subject to the stipulations in paragraphs 1 and 2. Paragraph 5 of the deed also does not grant the Shebaiti absolutely to any one. Therefore, even the appointment of Sitesh Kishore as Shebait must be held to be illegal. Anyway he has been removed from the post of She-bait by the two courts below. In such a situation the Shebaiti must go to the heirs of the founder : See Gossami Sri Giridhari Ji v. Human Lalji Gossami, (1889) 16 Ind App 137 and AIR 1951 SC 293. This is because the right of the founder is heritable and he has not completely disposed of the interest which he has therein: AIR 1943 PC 89 at p. 93, Mr. Prem Lal has cited Anuragi Kuer v. Parmanand, AlR 1977 SC 1481 which affirmed the decision of this court reported in AIR 1939 Patna 1. The learned counsel also relied on Profulla Chorone v. Satya Choron, AIR 1979 SC 1682. But these cases also lay down the principles as those in Ganesh Chandra Dhur v. Lal Behary Dhur, AIR 1936 PC 318 and they are of no assistance to Mr. Prem Lal's client.
4. It was next contended by Shri Prem Lal that on an appeal by defendant No. 1 alone and in absence of any appeal or cross-objection by the plaintiff No. 1 the rights of defendants 1 to 5 could not be taken away by the appellate Court in exercise of power under Order 41, Rule 33 of the Code of Civil Procedure and it had no jurisdiction to pass a decree in favour of one respondent against other respondents. In support of this contention reliance is placed upon the true scope and meaning of Order 41, Rule 33 as illustrated by the decisions in Nirmala Bala Ghose v. Balai Chandra Ghose, AIR 1965 SC 1874, Raghu Nath v. Kedar Nath, AIR 1969 SC 1316, Harihar v. Balmiki, AIR 1975 SC 733, Prahlad Chandra v. State of Bihar, AIR 1976 Pat 109 and Tummalla v. Venka Narasingarao, AIR 1978 SC 725. In my opinion, the contention is without any substance.
Order 41, Rule 33 reads thus:
"The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."
On a perusal of the above it is clear that a very wide power has been conferred upon the appellate Court to pass any decree or to make any order for doing complete justice between the parties. The object of this rule has been fully stated in the Full Bench case of Subra-manian Chettiar v. Sinnammal, AIR 1930 Mad 801. Its object is clearly to enable the court to do complete justice between the parties. Its terms are very wide and in a proper case it gives the appellate Court ample discretion to pass any decree or make any order to prevent the ends of justice from being defeated. By the very terms of the order, involving as it does an exercise of judicial discretion, the question whether appellate Court should exercise the powers conferred by them in a particular case would no doubt, depend upon the special facts and circumstances of that case. The illustration to the Rule is a type of one class of cases which calls for the exercise of the powers conferred by Rule 33; but it does not by any means exhaust the class of cases in which the powers of the appellate court under this rule may be invoked. Having regard to the wide language of the Rule it is inexpedient to lay down any hard and fast rule regarding the scope of this provision. In a proper case the court should not hesitate to use the powers conferred upon it by this rule. After stating this object of the rule Madhavan Nair, J. further observed that the basis for the rule may be found in Order 58, Rule 4 of the Rules of the Supreme Court in England. His Lordship said that Attorney General v. Simpson, (1901) 2 Ch D 671: 70 LJ Ch 828 is an instance of another class of cases, justifying action under this rule. In that case an action was brought by the Attorney-General on behalf of the public for two reliefs; (1) for a declaration that the public were entitled to the right of passage along a river including the locks without the payment of tolls; and (2) that the defendant was under an obligation to maintain the locks in an efficient state by repairs.
In the first Court a decree was passed declaring that the public were entitled to use the locks without payment of tolls, but it was also declared that the defendant was under no obligation to repair the locks. The defendant preferred an appeal against this decree. The plaintiff did not file either a cross-appeal or a memorandum of objection. The Court of appeals found that the public were not entitled to use the locks without payment of tolls to the defendant; at the same time the Court expressed the opinion that the defendant was under an obligation to repair the locks, and passed a decree to that effect. The learned Judge pointed out that under Order 58, Rule 4 they were entitled to make this declaration notwithstanding the fact that there was no appeal by the plaintiff "against so much of the judgment which declared that the defendant was not bound to repair and maintain the works". After referring to this case his Lordship said:
"In none of the cases brought to our notice has it been laid down that in an appeal preferred by the plaintiff against a portion of the decree the appellate Court has no jurisdiction, in the absence of a cross-appeal or cross-objection to dismiss the whole suit and that the utmost that the appellate Court is competent to do is to dismiss the appeal.....
There may no doubt be cases where no excuse or justification could be found for a party for not having preferred an appeal or a memorandum of objections, in which cases justice may not require the exercise of powers under Order 41, Rule 33, and the appellate Court will be well advised in not exercising such powers."
It is clear from this Full Bench case that exercise of power by the appellate Court under the above Rule depends upon the special facts and circumstances of a particular case and that no hard and fast rule regarding the true scope of the rule can be laid down. In Gaini Ram v. Ramji Lal, AIR 1969 SC 1144 it was observed that the expression "which ought to have been passed" in Order 41, Rule 33 means which ought in law to have been passed. If the appellate Court is of the view that any decree which ought in law to have been passed, but was in fact, not passed by the subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require. In the present case the lower appellate Court has dealt with this point in paragraph 51 of its judgment. It has discussed the point of succession under the Hindu Succession Act, 1956 and held that plaintiff No. 1 alone was the nearest agnatic relation of the founders and that defendants second party were remote agnates. It, accordingly, held that only plaintiff No. 1 was entitled to become Shebait and that the decree of the trial Court making defendants second party also Shebaits was inconsistent with law and could not be supported. The appellate Court, therefore, made a decree in favour of plaintiff No. 1 which ought in law to have been passed by the trial Court and his power, therefore, was properly exercised in accordance with the above rule. Mr. Prem Lal drew my attention to the relief portion of the plaint which is as follows:--
"(a) In view of the facts stated above it may be declared that defendant No. 1 is not fit to remain a Shebait of the Thakurji and that the line of succession as contained in the deed of Samarpan-nama is illegal and that defendant No. 1 on the death of Kaushal Kishore is not entitled to remain Shebait alone.
(b) On a decision of the facts stated above the defendant No. 1 may be removed from Shebaitship and in his place plaintiff No. 1 and defendant second party may be declared as Shebait of Thakurji."
Learned counsel contended that both these reliefs were granted to the plaintiff. It was pointed out that plaintiff No. 1 himself sought for relief that he along with defendant second party may be declared as Shebaits of Tha-kurji and in this view of the matter the lower appellate Court was not competent to modify the decree of the trial Court in absence of any appeal or cross-objection by the plaintiff. I have already said that the modification of the decree by the trial court was in accordance with law. The lower appellate Court, therefore, was within its jurisdiction to pass a decree which ought in law to have been passed by the trial Court. The act of the plaintiff in seeking relief that he along with defendant second party may be appointed Shebaits, cannot take away the jurisdiction of the court conferred upon it under Order 41, Rule 33 to pass a lawful decree as the justice of the case may require. It may also be noticed that the reliefs had already been granted to the plaintiff and, therefore, there was justification and good reason for him to be satisfied and not to file any appeal. In such a situation the appellate Court had jurisdiction to modify the decree. It is not necessary to discuss all the authorities cited by the appellants. In Tum-malla Atchaiah v. Venka Narasingarao, AIR 1978 SC 725 the trial Court had passed a decree to the effect that the defendant would deliver possession of the suit property to the plaintiff on payment of Rs. 13,000 by the plaintiff. The defendant filed an appeal in the High Court against that decree.
The plaintiff filed a cross-objection only in respect of two matters, namely, costs and mesne profits and no ground was taken in the cross-objection attacking the decree of the trial Court in regard to the payment of Rs. 13,000. It is thus clear that the plaintiff-respondent in their cross-objection did not deliberately attack the decree of the trial Court making him liable to return Rs. 13,000 before he could take back possession from the defendants. However, the High Court while dismissing the appeal of the defendant exercised its power under Order 41, Rule 33 and varied the decree of the trial Court by granting certain reliefs to the plaintiff in respect of that amount. It is clear that the plaintiff had no justification to invoke the power of the court under Order 41, Rule 33 in respect of the amount of Rupees 13,000. It was in that situation that the Supreme Court held that the High Court was wrong in taking recourse to Order 41, Rule 33 C.P.C. in interfering with the decree of the trial Court in relation to the payment of Rs. 13,000. That case, therefore, is distinguishable and is of no help to the appellant. None of the authorities cited on behalf of the appellants appear to resemble the circumstances of the instant case. In AIR 1975 SC 733 at p. 749 in paragraph 36 the view taken in Krishna Reddy v. Rami Reddy, AIR 1954 Mad 848 relating to the scope of Order 41, Rule 33 was approved. There is nothing in that case which is against the view expressed above by me. It was rather observed in the said Madras case (AIR 1954 Mad 848) after enumerating the three classes of cases where the provisions of Order 41, Rule 33 can be applied:
"This however, is not an exhaustive enumeration of the class of cases in which courts could interfere under Order 41, Rule 33. Such an enumeration would neither be possible or even desirable."
In that view of the matter I do not think it necessary to over-burden this judgment by discussing the cases reported in AIR 1976 Pat 109, AIR 1965 SC 1874 and AIR 1969 SC 1316. After all the proper exercise of jurisdiction under Order 41, Rule 33 will always depend upon the special facts and circumstances of a particular case and no hard and fast rule can be laid down for all cases. I am of the opinion that the lower appellate Court properly exercised its discretion of jurisdiction in modifying the decree of the trial Court in order to do complete justice between the parties by settling their rights according to law and it was competent to take the view it did take and hence I am not inclined to interfere.
5. For the reasons given above I hold that this appeal has no merit. It is, accordingly dismissed. No costs.