MT JAMNA KUNWAR Vs. LAL BAHADUR

JUDGEMENT

(1.) This is an application under Section 110 and Order 45, Rule 2, Civil P.C., for leave to appeal to His Majesty in Council. The following genealogical table will be of assistance in following the case:

(2.) The sons and grandsons of Gauri Shanker made an application under Section 4, U.P. Encumbered Estates Act, on 21 September 1935. They furnished a list of certain property. On 20 August 1936, they furnished a supplementary list of further property, consisting of 37 items as belonging to them. Mt. Jamuna Kuer, the daughter of Tikaram by his first wife, took exception to the supplementary list and claimed the property as the step sister of Kunj Behari. The learned Special Judge by his judgment of 4 May 1942, rejected her claim on the ground that she was, on the authorities as they existed then, not entitled to the estate of her half brother. Against this decree she came in appeal to this Court. The learned Judges, by their judgment of 24 July 1944 held that in view of the decisions of their Lordships of the Privy Council in Mt. Sahodra V/s. Ram Babu and Mt. Mesar Kuer v. Bishundeo Singh , she was entitled to the estate. They, however, accepted her appeal only with regard to 18 out of 37 items of the property. The applicant proposes to go in appeal to His Majesty in Council against the decision of this Court with regard to the remaining 19 items.

(3.) The value of the subject-matter in dispute, both in the Court of first instance and this Court was Rs. 50,000 and the value of the subject-matter of the proposed appeal to His Majesty in Council is also above Rs. 10,000. What falls to be determined, therefore, is whether the present application fulfils the requirements of Section 110, Civil P.C. The answer to this question depends upon the interpretation to be placed on the expression "affirms the decision of the Court immediately below" in the section. A mass of literature has grown round the word affirms and there is considerable divergence of opinion among the different High Courts. The case in Annapurnabai V/s. Ruprao forms the foundation of the entire case-law, but, curiously enough, this case although its facts were so simple, is the rock on which judicial opinion has split. It will have to be examined in detail. We are, however, relieved of the necessity of tracing the course of judicial authority dating from this case, inasmuch as there has, on this point, been a Pull Bench decision of this Court in Jaggo Bai V/s. Harihar Prasad Singh . We, however, propose to examine a few of the authorities subsequent to this decision, as the main contention of the learned Counsel for the opposite parties is that the facts of the Full Bench case are distinguishable from those of the present case and there have been two recent pronouncements of the Lahore High Court which definitely disagree with the view taken by this Court in Jaggo Bai V/s. Harihar Prasad Singh . The facts before their Lordships of the Judicial Committee Annapurnabai V/s. Ruprao in were briefly these : One Shankar Rao died leaving behind him two widows, Ambu Bai and Annapurna Bai. The plaintiff, Euprao, claimed to have been adopted by Ambu Bai and on attaining majority in 1915, he sued for possession of Shankar's property. The suit was resisted by Annapurna Bai and one Kashi Nath, who also claimed to have been adopted by Annapurna Bai. Annapurna Bai prayed for maintenance in case the adoption of Kashi Nath was not proved. The Subordinate Judge decreed the suit but granted Rs. 800 per year as maintenance to Annapurna Bai. On appeal, the decree was varied by increasing the amount from Rs. 800 to Rs. 1,200 but, in other respects, the decree of the lower Court was left unchanged.