# [1955] 2 S.C.R. 872

- **Citation:** [1955] 2 S.C.R. 872
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 92 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-2-s-c-r-872-1260
- **Pages:** 9

## Headnote

1955
October 11
872
SUPREME COURT REPORTS
DAJISAHEB MANE AND OTHERS
ti.
SHANKAR RAO VITHAL RAO MANE
AND ANOTHER.
[1955]
[S. R. DAS,
DAS,
fAFER
AcTING C. J.,
VIVIAN
BosE,
iMAM
and
CHANDRASEKHARA
fACANNADHA·
AIYAR JJ.]
Constitution of India-Arts. 133 and 135-Decree of lower court
in respect of properties of the value of more than Rs. 10,000 but below
Rs. 20,000--Reversed by the High Court on 8-11-1949-High Court
g•·anted 'leave to appeal on 1-10-1951-Appeal to the Supreme Court
-Whether competent-Word "exercisable" in Art. 135-Construction
of.
This appeal to the Supreme Court_ was from a reversing decree
of the Bombay High Court in a suit for possession of certain im·
movable properties.
The suit was dismissed by the trial court on
20-12-1946, the value of properties being found to be over Rs. 10,000.
The decree of the High Court allowing the plaintiff's claim was
passed on the 8th November 1949.
The defendants applied to the
High Court for leave to appeal to the Federal Court on 6-1-1950
which was granted on 1-10-1951.
One of the questions for determination was whether Art. 133
of the Constitution applied to the case and the appeal was competent to the Supreme Court.
Held, that Art. 133 did not apply as it relates expressly to appeals against any judgment, decree or final order in a civil proceeding of a High Court in the "territory of India''.
Held further that on the date of the decree of the High Court,
the defendants had a vested right of appeal to the Federal Court as
the properties were of the requisite value and on 6-1-1950 a certificate of leave to appeal was bound to be granted.
Held also that the appeal was competent to the Suprerae Court
by virtue of the provisions of Art. 135 of the Constitution as the
jurisdiction and powers in relation to the matter in dispute were
exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law. inasmuch as the
Federal Court had jurisdiction to entertain and hear appeals from a
decree of a High Court which reversed the lower court's decree as
regards properties of the value of more than Rs. 10,000.
The construction contended for by the respondent that the
jurisdiction was exercisable under Art. 135 by the Federal Court
only if the matter was actually pending before the
Federa~ Court
and that· it could not be said to be pending until the appeal is
declared admitted under Order XLV of the Civil Procedure Code is
2 S.C.R.
SUPREME COURT REPORTS
87.l
too narrow and does not give full and proper scope to the meaning
of the word 'exercisable' in the Article.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeal
No. 92 of 1953.
Appeal under section 110 of the Civil Procedure
Code from the Judgment and Decree dated the 8th
November 1949 of the Bombay High Court in Appeal
from Original Decree No. 195 of 1947 arising out of
the Judgment and Decree dated 20th December 1946
of the Court of Civil Judge, Senior Division, Sholapur
in Special Suit No. 78 of 1945.
C. K. Daphtary, Solicitor-General of India (R. A.
Govind, with him) for the appelbnts.
J B. Dadachanji, Sri Narain Andley and Rajinder
Narain, for respondents.
1955. October
11.
The Judgment of the Court
was. delivered by
CttANDRASEKH.~RA
ArYAR
J.-This appeal
is
from
a reversing decree of the Bombay
High Court
in a
suit for the possession of certain immovable proper-·
ties which w<ts dismissed
hv the Civil Judge, Senior
· Division, Sholapur. The value of the properties
has
been found to be over Rs. 10,000.
The Original decree was on 20-12-1946. The decree
of the High Court allowing the plaintiff's claim was on
8-11-1949.
The defendants applied for leave to appeal
to the Federal Court on 6-1-1950.
The High Court
directed the trial court to find the value of the property which was the subject-matter of the suit at the
time of the rnit and on the date of the passing of the
decree in appeal. On 22-1-1951 the lower court ascertained
the
value as stated above.
The High Court
the:cafter granted leave to appeal

## Text

1955
October 11
872
SUPREME COURT REPORTS
DAJISAHEB MANE AND OTHERS
ti.
SHANKAR RAO VITHAL RAO MANE
AND ANOTHER.
[1955]
[S. R. DAS,
DAS,
fAFER
AcTING C. J.,
VIVIAN
BosE,
iMAM
and
CHANDRASEKHARA
fACANNADHA·
AIYAR JJ.]
Constitution of India-Arts. 133 and 135-Decree of lower court
in respect of properties of the value of more than Rs. 10,000 but below
Rs. 20,000--Reversed by the High Court on 8-11-1949-High Court
g•·anted 'leave to appeal on 1-10-1951-Appeal to the Supreme Court
-Whether competent-Word "exercisable" in Art. 135-Construction
of.
This appeal to the Supreme Court_ was from a reversing decree
of the Bombay High Court in a suit for possession of certain im·
movable properties.
The suit was dismissed by the trial court on
20-12-1946, the value of properties being found to be over Rs. 10,000.
The decree of the High Court allowing the plaintiff's claim was
passed on the 8th November 1949.
The defendants applied to the
High Court for leave to appeal to the Federal Court on 6-1-1950
which was granted on 1-10-1951.
One of the questions for determination was whether Art. 133
of the Constitution applied to the case and the appeal was competent to the Supreme Court.
Held, that Art. 133 did not apply as it relates expressly to appeals against any judgment, decree or final order in a civil proceeding of a High Court in the "territory of India''.
Held further that on the date of the decree of the High Court,
the defendants had a vested right of appeal to the Federal Court as
the properties were of the requisite value and on 6-1-1950 a certificate of leave to appeal was bound to be granted.
Held also that the appeal was competent to the Suprerae Court
by virtue of the provisions of Art. 135 of the Constitution as the
jurisdiction and powers in relation to the matter in dispute were
exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law. inasmuch as the
Federal Court had jurisdiction to entertain and hear appeals from a
decree of a High Court which reversed the lower court's decree as
regards properties of the value of more than Rs. 10,000.
The construction contended for by the respondent that the
jurisdiction was exercisable under Art. 135 by the Federal Court
only if the matter was actually pending before the
Federa~ Court
and that· it could not be said to be pending until the appeal is
declared admitted under Order XLV of the Civil Procedure Code is
2 S.C.R.
SUPREME COURT REPORTS
87.l
too narrow and does not give full and proper scope to the meaning
of the word 'exercisable' in the Article.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeal
No. 92 of 1953.
Appeal under section 110 of the Civil Procedure
Code from the Judgment and Decree dated the 8th
November 1949 of the Bombay High Court in Appeal
from Original Decree No. 195 of 1947 arising out of
the Judgment and Decree dated 20th December 1946
of the Court of Civil Judge, Senior Division, Sholapur
in Special Suit No. 78 of 1945.
C. K. Daphtary, Solicitor-General of India (R. A.
Govind, with him) for the appelbnts.
J B. Dadachanji, Sri Narain Andley and Rajinder
Narain, for respondents.
1955. October
11.
The Judgment of the Court
was. delivered by
CttANDRASEKH.~RA
ArYAR
J.-This appeal
is
from
a reversing decree of the Bombay
High Court
in a
suit for the possession of certain immovable proper-·
ties which w<ts dismissed
hv the Civil Judge, Senior
· Division, Sholapur. The value of the properties
has
been found to be over Rs. 10,000.
The Original decree was on 20-12-1946. The decree
of the High Court allowing the plaintiff's claim was on
8-11-1949.
The defendants applied for leave to appeal
to the Federal Court on 6-1-1950.
The High Court
directed the trial court to find the value of the property which was the subject-matter of the suit at the
time of the rnit and on the date of the passing of the
decree in appeal. On 22-1-1951 the lower court ascertained
the
value as stated above.
The High Court
the:cafter granted leave to appeal on 1-10-1951, overrn1ing the objections raised by
the plaintiff to the
grant of such lt:a-:e.
The maintainability of this appeal has been questionc.I before us hy Mr. Dadachanji, learned counsel
for the respondents. in a somewhat lengthv argument.
His
main
contention
was
th~t article
LB of
the
in--14 S.C. fndia/59
1955
Dajisa!1Cb. Mav
and others
v.
ShtJ11kar Rao
Vithal RQ() Mane
and another
1955
DaJisaheb Man~
and othtrs
v.
Shanhir Rao
V ithal Rao Mane
and arwther
Chant/rasekharo
Aryar ].
874
SUPREME COURT REPORTS
11955!
Constitution applies to the case, and as the value is
below Rs. 20,0lJO, no appeal can be entertained. It is
the correctness of this argument that we have to consider.
On the date of the decree of the High Court, the
defendants had a .vested right of appeal to the Federal
Court, as the properties were of the requisite value,
and on 6-1-1950 they sought a certificate of leave to
appeal, which was bound to be granted.
The Constitution establishing the
Supreme
Court as the final
appeilate authority for
India
came
into
force
on
26-1-195().
Did the vested right become extinguished
with the abolition of the Federal Court? If the coun
to which an appeal lies is altogether abolished without any forum substituted in its place for the disposal
of pending matters or for the lodgment of appeals,
the vested right perishes no doubt.
We have therefore
rp examine whether the
Constitution
which
~rought
the Supreme Court into being makes any p.:ovision
for an appeal from a reversing decree of the High
Court prior to the date of the Constitution respecting
properties of the value of Rs. 10,000 and more being
en~ertained and heard by the Supreme Court.
Article 135 is in these terms:-
"Until Parliament by law otherwise provides, the
Supreme Court shall also have jurisdiction and powers
with respect to any matter to which the provisions of ·
article 133 or article 134 do not apply if jurisdiction
and powers in relation to that matter were exercisable
by the Federal Court immediately before the commencement of this
Constitution
under
any
existing
la\Vn.
Article 133 runs as follows:-
"(1)
An appeal
shall lie to
the Supreme Court
from any judgment, decree or
final order in a civil
proceeding of a High Court in the territory of India
if the High Court certifies-
( a) that the amount or value of the subject-matter of the dispute in the court of first instance and
still in dispute on appeal was and is. not le5s than
twenty thousand rupees or such other sum as may be
specified in that behalf by Parliament by law; or
2 S.C.R.
SUPREME COURT REPORTS
875
(b) that the judgment, decree or final order involves directly or indirectly some claim or question
respecting property of the like amount or value; or
( c) that the case is a fit one for appeal to the
Superme Court;
and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in ;:ny case other than a case referred to
in sub-clause ( c), if the High Court further certifies
that the appeal involves some substantial question of
law ............ "
It is reasonably clear that article 133 does not apply
to this "matter".
The language is
prospective,
and
the judgment, decree or final order from which the
appeal is to be taken is that of a High Court in the
territory of India-that is a
High Court
established
under the Constitution.
The territory of India comprises the
territory of the
States.
Aricle
214 says
that there shall be a High Court
for
each
State,
and clause (2) thereof provides that "the High Court
,:xerc;s:ng
jurisdic~ion in relation
to
any
Province
immediately bdore the commencement of this Constitution shall be deemed to be the High Court for the
corresponding St1te".
\Ve
can
compendiously
speak
of the High Court prior to the Constitution and the
I-Ii?h Court after the Constitution as the P;-ovincial
Higi1 Court and the State High Court. A High Court
in the territory of India means a State High Court,
and J..rticle 133 provides for appeals against any judgment. decree or final order in a civil proceeding of
such High Court.
Though article 133 does not apply, we have still to
see whether it is a matter as regar<ls which jurisdiction a'!d powers were exercisable by the Federal Court
immediately before the
commencement of the
Constitution.
It is unnecessary to refer in detail to the
earlier enactments
defining
the
jurisdiction
of
the
Privy Council,
and
the Government of India Act,
1935 establishing the Federal Court and conferring a
lim;tcd jurisdiction on the same.
It is sufficient to
pohr out that as the law then stood, the Federal
Court had jurisdiction to entertain and hear appeals
1955'
Dajisal.eb Mane
and ot.\ers
v.
Shankar Rao
V iti;al Rao Mmie
and another
Chandrasek.\ara
A!>'ar J.
1955
Dajisa'uh Mane
and ot';ers
v.
Shankar Rao
Vithal Rao Mane
and anot,ler
r: ;;andrasekhara
Aryar J.
876
SUPREME COURT REPORTS
jl955j
from a decree of a High Court which reverse<l
the
lower court's <lecree as re.!,!ards properties of the value
of more than Rs. 10,000.
The aggrieved p.rtv had a
right to go before it, without any special leave l:eing
granted. It was
a matter over which
jurisdiction
was "exercisable" by the
Federal Court.
The construction that it was "exercisable" only if the matter
was actually pending before the Federal Court and
that it could not be said to be pending until the appeal is declared admitted under Order
XL V of the
Civil Procedure Code is too narrow,
and
doc; 110t
give full and prooer
scope to
the
meanin!;( of the
word "exercisable"
in
the. article.
Pending: matten
are dealt with under article 374(2), and we must give
some meaning to the provisions
of article
135.
As
soon as the decree of the High Court came into existence, the jurisdiction of the F c<leral
Court
to hear
an appeal from that decree became exercisable. provided certain conditions as to
security
and
deposir
were complied with, which are not material for
0111
present purpose.
Reference may be made here to paragraph 20 of thcAdaptation of Laws Order, 1950, as amended in 195],
which provides:
"Nothing in this Order shall affect the previnm
·•
operation of, or anvthing duly done or suffered under,
any existing law, or anv right,
privilege,
obligation
or
liability
already
acquired,
accrued
or
incurred
under any such law ....... .
By this Order section 110, Civil Procedure Code was
adapted to the new situation but the requirement "'
to value was raised from 10,0UO to 20,000.
What 1s
provided is that this
adaptation
will not
affect the
right of appeal already accrued.
If we accede to the argument urged by the respon ·
dents, we shall be
shutting out
altogether
a
large
number of appeals, where the parties had an automatic right to go before the Federal Court befor~ the
Con::titution and which
we must
hold
was
taken
a'"°"'i from ·them for no fault of their
own, merely
bec;use the Supreme Court came into existence in
phce of the Federal Court.
An interpretation or
2 S.C.R.
SUPREME COURT REPORTS
8
~~
ii
construction of
the provisions
of
the Constitution
which would lead to such a result should be avoided,
unless inevitable. The Full Bench
decision
of
the
Madras High Court in
G1111dapuneedi Tleeranna and
three others v. Gundapuneedi China Tl enkanna and seven
others( 1 ) was a case where the decree of the High Court
~md the application for leave
to appeal were both
after the Constitution came into force. Whether in
all matters where there was a right of appeal under
section 110 of the Civil Procedure Code it continues
in respect of all suits filed • prior to
the Constitution
is a question that does not arise for decision now.
On the merits,
the appeal
is unassailable. The
family whose genealogical tree is given in the opening
portion of the judgment of the trial Judge owned
what may
be
compendiously
described
as
Sangam
properties and Peta Velapur
Mahal properties, and
all of them were of the nature of watan. The Sangam
Jar.,Js were held by the eldest branch represented by
Yeshwant Rao (son of Panduranga Rao) bv right of
lineal pnmogeniture. When Yeshwant Rao and
hi~
widow Tarabai died in November 1924, these properties went to the plaintiff Shankar Rao's
branch
as
the next senior in line. The Peta
Velapur
Mahal
properties were held in three shares by Narsinga R:io,
Vithal
Rao
and
Krishna
Rao,
the
fourth
brother
Shyama Rao having no right as he was insane. Defendants 1. 2 and 3 represent Krishna
Rao's
br:mch.
After Yeshwant Rao's
death,
Lakshman
Rao,
the
grandfather of defendants 1 and 2, filed a suit No.
1064 of 1925
for a declaration that he was
the
nearest heir to the Sangam properties, the Peta Velapur Mahal properties and the cash income appertaining to the inamdar's right in Sangam. He got a declaratory decree that he was the nearest heir of
th~
dee.eased Yeshwant Rao, and had a right
in
such
capacity to take possession of all the
propLrtie~, excluding the inam income and the Sangam laPLls specified in Schedule B of the decree and a small item of
prooertv 5ituated in the same vi,llage and specified in
Schedule G. As regards the excluded items, Shankar
(1) I.L.R.(r953] Mad. I07J.
1955
Dajisa'ieb Mmu
·and ot1;m·
v.
Sfignkar Rao
Vitf,al Rao M1J11t
and anothc
Chand1aukhara
A&ar J.
1955
DaJisaUb Ma•
and ot'.ers
v.
Shar.kar Ran
Vit'ial Rao Mane
and anothtt
Chanttrastkhara
Ao/ar J.
878
SUPREME COURT REPORTS
[1955}
Rao, the first defendant, (plaintiff in the present suit)
was held to be the heir. On appeal to the High Court,
the decree of the Subordinate Judge was confirmed,
except as regards the cash allowance of three villages
Nevare, Tambure and
Limbagaon, which was also
decb·ed to belong to Shankar Rao.
As the decree was only a declaratory decree, a fresh
suit
had
to be filed
by
Narayana Rao,
son
of
Lakshman Rao,
to recover possession of the Peta
V elapur Mahal properties at Mahalung, Lavang and ·
Wafegaon. This was
Civil Suit No. 2148 of 1936.
Recovery was also sought of some cash and the value
of some ornaments and clothes, etc. The claim was
resisted · by Shankar Rao, and his main plea was tbat
in lieu of the properties claimed, a large number of
lands at Sangam had originally been given to the
plaintiff's branch, and that unless
those
properties·
were given back, the plaintiff could not claim to recover the V elapur Mahal properties. The suit ended
in a compromise decree. Shankar Rao was to deliver
actual possession of the lands to the plaintiff as owner
together with costs and meme profits and the plain-·
tiff was to abandon the rest of the claim. The decree
states, "The defendant has given up all the contentions in his written statement".
After possession was taken of the V elapur Mahal
properties under the decree, the plaintiff, · Shankar Rao,
brought this suit to recover from defendants 1 and 2
the Sangam lands to which he referred in his earlier
written statement alleging that they were gi\·cn to
their grandfather in lieu of maintenance. The defendants have made the answer that the items of Sangam
lands claimed · by the plaintiff were given to their
ancestor, Krishna Rao absolutely under the deed of
1867, and that since then they had been in the enjoyment as owners thereof. The Civil Judge dismissed
the plaintiff's suit finding that the case of the plaintiff to the effect that the lands were given to Krishna
Rao for maintenance under the deed of 1867 was unfounded. But on appeal by Shankar Rao (the pbin~
tiff), the High Court reversed this decree construing
the deed of 1867 as a deed under which absolute owner-
2 S.C.R.
SUPREME COURT REPORTS
879
ship was not transferred to Krishna Rao and that the
specified items of Sangam lands were given to hiw
provisionally
and
conditionally
till
Krishna
Rao
obtained possession of the Peta V elapur Mahal lands
which were then under a mortgage.
V/e have examined the deed closely and do not find
any warrant for the view taken by the learned Judges
on appeal. The deed is Exhibit No. 35, and it
i~;
printed at page 63 of the Paper Book. The correctness of the translation is admitted.
It was
executed
by Narsinga Rao of the first branch in favour of
Krishna Rao of the last branch, predecessor-in-title
of defendants 1 to 3.
After
reciting that Krishna
Rao was entitled to a one-third share in the income
appertaining to the Deshmuki rent of the family at
Peta Vclapur Mahal, it proceeds to say,
" ........ In lieu of the land of that Mahal and in
respect of the cash aliowance of the Haqdari rights we
have given to you for a 1/3 share of land of this Mahal
the following lands from the village of Sangam which
is continued with us by Vadilki right (the right of
Primogeniture)".
The deed proceeds to set out the items by areas,
assessment, and boundaries, and then goes on :
"In all 6 numbers have been given by us to you
in lieu of your entire income from the said Mahal. Now,
five and half Pavs out of the said land are in your
'Vahiwat' at present and the remaining land was to
have been given over to your vahiwat, but we having
formerly mortgaged the said village
to
Ramch:mdra
Pandurang Deshpande, 5 'Pavs' of land is not in your
Vahiwat this day. Hence on the expiry of 6 years,
the period of the mortgage, you may carry on the
entire Vahiwat of the land passed in your favour in
writing as aforesaid without any hindrance. We have
no claim of inheritance left on the aforesaid land".
The 'deed concludes with a provision made for the
residence of the donee in an open space in the same
village. It further states :
" ...... There are four shops
and a wada at· the;
Kasha of Velapur, and a one-third share thereof has
beeo allotted to your share over which we have no
1955
Dajisa.\eb Mane
and others
v.
Sho.nkar Rao
V it/;aE Rao Man;
and anotlzer
Chandrasekhara
Ai)'ar ].
1955
DajisaMJJ Mane
ondo hers
v.
SJrankar Rtw
V it Ital Rao M, ne
and anot .. er
880
SUPREME COURT REPORTS
[19551
claim of inheritance left".
It is obvious from this document that the one-third
share of Krishna Rao's
branch in the Peta Velapm
Mahal properties was retained by Narasinga Rao and
that in lieu thereof Krishna Rao was given six items
of the Sangam properties, the whole of which could
not then and there be given over into his possession
and management as there was a usufructuary
mortgage over a portion of the lands which was to expire
after the lapse of six years from that date. The lands
referred to as mortgaged are the Sangam lands and
not the Peta V elapur Mahal lands as wroPgly assumed
by the High Court. There is absolutely nothing said
about the properties being given for maintenance to
Krishna Rao. On the other hand, in two places we
find that any right to inheritance was given up. In
fact, this case of the plaintiff was given up before the
trial Judge. It is true that there was an exchange of
properties, but there is nothing to warrant the view
of the learned Judges. that it was provisional or conditional, and that the Sangam lands were to be returned when the Velapur Mahal properties went into
the
posse:ssion
and
management of
Krishna Rao's
branch.
To say
such
an
arrangement
was
implied is to ignore the plain terms of the deed.
·
The properties now in dispute are the items covered
by the deed. They did not form the subject-matter
of the two previous litigations. Since 1867, the date
of Exhibit No. 35 they have always been in the possession of the defendants' branch as owners. 1t must
also be remembered that the earlier suits of 1925 and
1936
proceeded on the basis
that the defendants'
branch was the heir to the properties left by the deceased, Y eshwant Rao.
There is no other question which arises for discussion or decision. It follows that the trial Judge was
right in hok!ing that the plaintiff's claim to recover
possession of the suit properties covered by the deed
of 1867 was entirely baseless. The decree of the High
Court is reversed and that of the trial Judge is restored with costs throughout payable by the plaintiff
In the defendants.