Jivangiri Guru Chamelgiri And … vs Gajanan Narayan Patkar And Anr. on 1 July, 1926

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Bombay High Court
Jivangiri Guru Chamelgiri And … vs Gajanan Narayan Patkar And Anr. on 1 July, 1926
Equivalent citations: AIR 1927 Bom 19
Author: Fawcett


Fawcett, J.

1. These are two applications for leave to appeal to the Privy Council and a third application to consolidate the two appeals. The litigation arose out of a sale deed executed on March 2, 1897, by four persons, each of whom took a separate document by which he was given an option of re-purchase. The plaintiff was one of these four persons and he brought a suit for specific performance of the agreement evidenced by the document passed in his favour. He also brought a separate suit as heir of one of the other parties, in whose favour a similar document had been passed. The trial Judge held in the latter suit that he had not proved his heirship and, there fore, dismissed that suit. In the other suit a decree was passed in favour of the plaintiff for specific performance. One of the main questions in the suit was whether the document sued upon was inadmissible in evidence for want of registratior. The Subordinate Judge held that it was admissible in evidence. On appeal to this Court, it was held that the document was inadmissible in evidence, being compulsorily registrable, and the decree of the lower Court was reversed.

2. In the corresponding appeal from the plaintiff’s second suit the Court did not go into question of heirship and dismissed the appeal on the ground that the document sued on was inadmissible for want of registration. The plaintiff seeks to appeal to the Privy Council on the ground that, in both these appeals, this Court wrongly held the document inadmissible for want of registration; and that will be the sole point for determination, if leave is given to appeal. The valuation put on the claim in the trial Court and also in appeal was the sum of Rs. 7,249 odd, that being the amount for which an option was given to re-purchase. The applicant asks that, under Order 45, Rule 4, Civil P.C, he should be allowed to have the two suits consolidated for the purpose of the pecuniary valuation involved. It is contended that both suits involve substantially the same questions for determination and have been decided by the same judgment within the meaning of this rule. So far as the trial Court was concerned, the evidence in both suits was taken in the suit brought by the plaintiff in his own right and the parties agreed to treat the evidence in that suit as evidence in the second suit, where the plaintiff sued as an heir.

3. The Subordinate Judge, in paragraph 3 of his judgment of October 23, 1923, in the second suit, remarks that some of the issues in both suits are identical, and his findings on those issues and the reasons for them are the same as recorded in the judgment in Suit No. 493 of 1922 ; and that that judgment should be treated as part of this judgment. There was, however, necessarily a separate judgment on the question of heirship, which was raised, and on one or two other points. In the appeals to this Court, there was a main judgment given in appeal No. 83 of 1924, holding (that the document was inadmissible for want of registration. In the linked Appeal No. 157 of 1924, the Court referred to the judgment in the other appeal as deciding that the document sued on required registration, and dismissed the appeal with costs on the ground that the document was inadmissible for want of registration. The Court also made some remarks about the question of heirship, but held that there was no necessity to go into point in view of the decision on the question of the admissibility of the document. It is to be noted that both the judgments, were delivered on the same day.

4. Having regard to the circumstance that the only point that will arise in appeal to the Privy Council will be this question of admissibility of the documents sued on under the Indian Registration Act, we are of opinion that the suits have been decided by the same judgment within the meaning of Order 45, Rule 4. We do no think that we should give a. narrow interpretation to this rule, provided that its spirit is observed. So far as the question that will arise in the; proposed appeal is concerned, it is quite clear that it was dealt with by each Court in one judgment, and that the judgment in the other suit and the corresponding appeal merely refers to that other judgment and, adopting the reasons there given, passes a decree accordingly. The mere fact that, owing to the question of heirship, the relief granted by this Court in one case differs from that given in the other case, does not in our opinion make the judgments separate ones, in view of that question not being involved in the proposed appeal to the Privy Council. Therefore, we allow the appeals to be consolidated for the purpose of pecuniary valuation, and in that view it is clear that the amount involved in the dispute both in the lower Court and this-. Court and on appeal to His Majesty is-over Rs. 10,000. We accordingly direct, a certificate to issue.

5. Supposing, however, that our view as to Order 45 Rule 4, is incorrect, we are of opinion that the question in dispute is one of general importance, which makes the case a fit one for appeal to His Majesty in Council. In this connexion we would refer to the referring judgments in Second Appeal No. 546 of 1924 and the Pull Bench decision on that reference: Harkisondas Bhagwandas v. Bai Dhanu A.I.R. 1926 Bom. 49. The execution, of documents with am option of repurchase is very common, and a considerable amount of litigation comes before the Courts in connexion with them. The law on the question of necessity of registering such document has not been clear in view of conflicting decisions : and even after the Full, Bench judgments, having regard to the fact that the decision in these two, cases Appeals Nos. 83 and 157 of 1924, reported in Vaman Trimbak v. Changi A.I.R. 1926 Bom. 97 constitutes an exception to the general rule laid down by the Pull Bench decision, it seems to us desirable that the matter should go before the Privy Council. We, therefore, also certify that the case is a fit one for appeal to His Majesty in Council; and as regards the fact that in fact that Appeal No. 157 of 1924 the decree of this Court confirmed the decision of the Court immediately below it, we may add that the appeals involve a substantial question of law within the meaning of Section 110 of the Civil P.C. The costs of the applications to be costs in the appeal.

6. As regards the question of security under Rule 79 of the appellate side Rules, we think that security should be given for Rs. 8,000 as there are two separate respondents involved, but we allow the appellant to give security for Rs. 4,000 out of this amount by furnishing a bond in the sum of Rs. 4,000 with one fit surety in the same amount. The remaining Rs. 4,000 should be deposited in cash or Government securities for the same amount.

7. The Registrar is given a discretion to accept Rs. 2,000 for printing charges, if he is of opinion that that amount will be sufficient for the consolidated appeals.

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