HLNDUSINGH PHULSINGH THAKUR Vs. RADHABAI

JUDGEMENT

(1.) THIS is an application for permission to appeal in forma pauperis submitted by the plaintiff-appellant who was allowed to file the present suit in forma pauperis for partition and possession of the property left- toy the huband of the defendant valued at Rs. 25,511-8-0 but had not succeeded. M. C. C. No. 107 of 1961 decided on 19-3-1962 (Indore). N. The claim of the petitioner was based on the allegations that he had been adopted by defendant Radhabai after her husband's death in pursuance of the authority conferred upon her by him during his life-time. Custom regarding adoption of a married boy was alleged and it was also alleged that although there was specific and express authority of her husband to adopt no such authority was needed amongst the members of their community and that a widow could make an adoption in the absence of specific authority. A deed of adoption said to have been executed by the defendant was also relied upon. The defendant denied the alleged adoption, as also the existence of the alleged authority to her to take the plaintiff in adoption. The alleged custom regarding adoption of a married boy as also one dispensing with the necessity of husband's express authority for adoption were also denied. Besides these facts she also pleaded existence of a will dated 14-12-1942 by her deceased husband in her favour whereby he had bequeathed absolutely all his property in her favour. The deprivation of possession in 1955 as alleged by the plaintiff was denied and it was asserted that she was always in possession. The trial Court found against the plaintiff on all disputed points and consequently dismissed the suit.

(2.) THE plaintiff preferred the present petition for leave to appeal in forma pauperis. On 19-9-1961 this Court admitted the petition after hearing Mr. Bharucha for the petitioner and directed issue of notice to the respondent as well as to the Government Advocate. A report is received from the State accepting the fact that the petitioner is not possessed of sufficient means to pay the court-fees. THE respondent however on appearance contends that the petition deserves to be dismissed as the decision of the Court below is not contrary to law or to any usage having the force of law nor is it otherwise erroneous or unjust. THE matter was thereupon placed for hearing.

(3.) THE question is somewhat complicated because of sharp conflict of views disclosed in the decisions cited on either side although left to myself I would not be disposed to consider that it any way involves the question of jurisdiction as suggested in the Full Bench decision of the Calcutta High Court in Shib Krishna v. Panchanan Ganguli AIR 1961 Cal. 346 (F B). It may no doubt involve the question of propriety and a Court if it has once applied its mind and held that the decision appeared to it as satisfying the condition laid down in sub- rule ( 93 C L J 165 (174). of Order 44, rule 1, C. P. C, it would not be disposed to reconsider the question since all that it need be satisfied about is that the decision of the Court below is apparently contrary to law etc. THE phrase 'reason to think" in sub-clause (2) of Order 44, rule 1 implies prima facie and not conclusive assessment. THE power of admission is not confined to those cases where the decision is contrary to law or to some usage having the force of law but extends even where the decision appears to the Court to be otherwise erroneous or unjust. Elastic as the terms are and give a large amount of discretion to the appellate Court yet there appears to be practical consensus of judicial opinion that where the decision turns upon mere assessment of evidence i. e. upon the question as to which set of witnesses should be believed and which set should be disbelieved, it cannot be said that the decision is contrary to law or to any usage having the force of law or is otherwise erroneous or unjust, vide Arunendra Nath v. Sanat Kumar 93 C L J 165 (174). Jagat Ram v. Ganga AIR 1951 Punj. 30. and Swaminatha Pillai v. Balasubramanya AIR 1952 Mad. 178..