Appeal No 729 of 1964
Appeal by special leave from the order dated February 1964 of the Rajasthan High Court in DB Civil Appeal No 2 of 1963
O P Varma for the appellants
Mohan Behari Lal for the respondent
The Judgment of the Court was delivered by Gajendradkar CJ
This appeal by special leave arises from an application made by the respondent Puniya in the Court of the Senior Civil Judge at Jhalawar under section 25 of the No 8 of 1890 hereinafter called the Act  for the custody of his daughter Mt Chitra
To this application the 103 respondent had impleaded the two appellants Gulab Bai and her husband Onkar Lal
The respondent is a Kumhar by caste whereas the appellants are fat
The respondent s case was that the minor Chitra who was about 11 years of age at the date of the application had been living with the appellants for the last 4 or 5 years with his consent
Whilst the minor girl was living with the appellants she used to come to spend some time with the respondent and his wife but for some time past the appellants did not allow Chitra to visit her parents
That is why the respondent thought it necessary to move the Court for an order under section 25 of the Act
The claim thus made by the respondent was disputed by the appellants
They alleged that the respondent and his wife had lost some children in their infancy and so they decided to leave the minor in the custody of the appellants in the hope that their custody would save the child
Accordingly the minor was entrusted to the appellants a few hours after her birth and in fact she was given away by the respondent and his wife to the appellants to be looked after as if she was their adopted child
During all these years the appellants have looked after the minor as their own child have taken fond care of her and have looked after her education
The appellants
and the respondent and his wife are neighbours and the appellants denied the allegation made by the respondent that they ever obstructed the minor from visiting her parents
According to the appellants recently an unfortunate incident had taken place between appellant No 1 and the wife of the respondent and that was the real cause of the present application
They pleaded that as a result of the ugly incident that took place between the two ladies the minor was frightened and appeared to be disinclined to visit her parents any longer
On these pleadings the parties led evidence to support their respective contentions
The learned trial Judge held that the child had been entrusted to the appellants soon after she was born and that she was looked after by the appellants as if she was their daughter
He felt satisfied that in case the child was removed from the homely atmosphere which she enjoyed in the house of the appellants that would definitely be detrimental to her welfare and would also affect her health because she had come to look upon the appellants as her parents
The learned trial Judge examined the child in order to ascertain her own wishes because he thought that she had attained the age of discretion and could express her wishes intelligently
He was convinced that the child definitely preferred to stay with the appellants
Having come to the conclusion that it would be inconsistent with the interests of the child to allow the application made by the respondent the learned Judge ordered that 104 appellant No 2 should be appointed the guardian of the person of the minor under sections 7 and 8 of the Act
He directed that the said Guardian shall give an undertaking to the
Court not to remove the child from the territorial jurisdiction of the Court and not to marry her without the permission of the Court
A direction was also issued that the child shall not of course be married outside her caste without the consent of her parents even if she so desires
Against this order the respondent preferred an appeal before the Rajasthan High Court
This appeal was heard by a learned single Judge of the said High Court who reversed the decision of the trial Judge
He came to the conclusion that it would be in the interests of the minor to deliver her to the custody of the respondent and his wife
He held that under section 6 a of the Hindu Minority and Guardianship Act 1958 the respondent was entitled to be the guardian of his daughter in the absence of any allegation or proof that he was in any way unsuitable to be such a guardian
The learned single Judge also took into account the fact that the appellants and the respondent belonged to different castes
and he held that since the minor was then about 12 years of age it was in her interest that she went back to be looked after by her own parents
ion this view the learned single Judge set aside the order passed by the learned trial Judge by which appellant No 2 was appointed the guardian of the minor and directed him to deliver the minor to the custody of the respondent
The order passed by the learned Judge further provided that if the appellants did not deliver the minor Chitra to her parents on the expiry of three months the respondent shall apply for execution of the order and that it would be executed as a decree under section 25 2 of the Act by issue of a warrant under section 100 of the Code of Criminal Procedure
Against this decision the appellants preferred an appeal under clause 18 of the Rajasthan High Court Ordinance 1949 No 15 of 1949 hereafter called the Ordinance 
This appeal was dismissed by a Division Bench of the High Court on the ground that the appeal was incompetent having regard to the provisions of sections 47 and 48 of the Act
The appellants then moved the High Court for certificate to prefer an appeal to this Court but the said application was dismissed
That is how the appellants applied for and obtained special leave from this Court and it is with the said leave that this appeal has come before us
The short question of law which arises for our decision is whether the High Court was right in holding that the appeal under clause 18 1 of the Ordinance was incompetent and that raises the question about the construction of sections 47 and 48 of the Act
105 Before dealing with this point two relevant facts ought to be mentioned
The Act was extended to Rajasthan by the Part B States Laws Act 1951 Act III of 1951 on the 23rd February 1951 but before the Act was thus extended to Rajasthan the Ordinance had already been promulgated
Clause 181 of the Ordinance provides inter alia that an appeal shall lie to the High Court from the judgment of one Judge of the High Court it excepts from the purview of this provision certain other judgments with which we are not concerned
It is common ground that the judgment pronounced by the learned single Judge of the High Court on the appeal preferred by the respondent before the High Court does not fall within the category of the exceptions provided by clause 1 8  1  of the ordinance so that if the question about the competence of the appeal preferred by the appellants before the Division Bench of the High Court had fallen to be considered solely by reference to clause 181 the answer to the point raised by the appellants before us would have to be given in their favour
The High Court has however held that the result of reading sections 47 and 48 together is to make the present appeal under clause 181 of the Ordinance incompetent
The question which arises before us is  is this view of the High Court right  Section 47 of the Act provides that an appeal shall lie to the High Court from an order made by a Court under sections specified in clauses a to j thereof
Clause c of the said section refers to an appeal against
an order made under section 25 making or refusing to make an order for the return of a ward to the custody of his guardian
It is thus clear that the order passed by the learned trial Judge in the present proceedings was an order under section 25 of the Act and as such is appealable under section 47 and when as a result of the rules framed by the Rajasthan High Court the present appeal was placed before a learned single Judge of the said High Court for hearing and was decided by him his decision became appealable to a Division Bench of the said High Court under cl 1 8 1  of the Ordinance
Thus far there is no difficulty or doubt
But the High Court has held that section 48 of the Act in substance amounts to a prohibition against an appeal to a Division Bench under cl
181 of the Ordinance and that makes it necessary to examine the provisions of section 48 carefully
Section 48 reads thus Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure an order made under this Act I shall be final and shall not be liable to be contested by suit or otherwise
 106 It is clear that what is made final by section 48 is an order made under this Act and the context shows that it is an order made by the trial Court under one or the other provision of the Act
This position is made perfectly clear if the first part of section 48 is examined
The finality prescribed for the order made under this Act is subject to the provisions of section 47 and section 622 of the earlier Code which corresponds to section 115 of the present Code
In other words the saving clause unambiguously means that an order passed by the trial Court shall be final except in cases where an appeal is taken against the said order under section 47 of the Act or the propriety validity or legality of the said order is challenged by a revision application preferred under section II 5 of the Code
It is therefore essential to bear in mind that the scope and purpose of section 48 is to make the orders passed by the trial Court under the relevant provisions of the Act final subject to the result of the appeals which may be preferred against them or subject to the result of the revision applications which may be filed against them
In other words an order passed on appeal under section 47 of the Act or an order passed in revision under section II 5 of the Code are strictly speaking outside the purview of the finality prescribed for the orders passed under the Act plainly because they would be final by themselves without any such provision subject of course to any appeal provided by law or by a constitutional pro vision as for instance article 136
The construction of section 48 therefore is that it attaches finality to the orders passed by the trial Court subject to the provisions prescribed by section 47 of the Act and section 115 of the Code
That is one aspect of the matter which is material
The other aspect of the matter which is equally material is that the provisions of section 47 are expressly saved by section 48 and that means that section 47 will work out in an ordinary way without any restriction imposed by section 48
In considering the question as to whether a judgment pronounced by a single Judge in an appeal preferred before the High Court against one or the other of the orders which are made appealable by section 47 will be subject to an appeal under clause 1 8 1 of the Ordinance section 48 will have no restrictive impact
The competence of an appeal before the Division Bench will have to be judged by the provisions of cl 18 itself
Section 48 saves the provisions of section 47 and as we have already indicated considered by themselves the provisions of section 47 undoubtedly do not create any bar against the competence of an appeal under cl
181 of the Ordinance where the appeal permitted by section 47 is heard by a learned single Judge of the High Court
Therefore we are satisfied that the High Court was in error in coming to the conclusion that an appeal before a Division Bench of the said High Court under clause 18 1 of the Ordinance was incompetent
107 It is true that in upholding the respondent s plea that the appeal preferred by the appellants under clause 181 of the Ordinance was incompetent the High Court has no doubt purported to rely upon and apply its earlier decision in the case of Temple of Shri Bankteshwar Balai Through Rampal vs The Collector Ajmer1
The said decision however was concerned with the effect of the provisions prescribed by section 663 of the Ajmer Abolition of Intermediaries and Land Reforms Act No III of 1955 in relation to clause 18 of the Ordinance and since we are not called upon to consider the correctness of the conclusion reached in that behalf it is unnecessary for us to examine whether the High Court was right in holding that the provisions of the said section 663 created a bar against the competence of the appeal under cl
181 of the Ordinance
All that we are concerned to deal with in the present appeal is the effect of section 48 of the Act and in our opinion the High Court was in error in holding that section 48 excluded the application of clause 1 8 1 of the Ordinance to the decision of the learned single Judge in the present proceedings
In this connection we may incidentally refer to the decision of this Court in Union of India vs Mohindra Supply Company1
In that case this Court has held that an appeal against the appellate order of the single Judge was barred under section 392 of the Indian  because the expression second appeal in section 392 means a further appeal from an order passed in appeal under section 39 1 and not an appeal under section 100 of the Code and as such the said expression second appeal includes an appeal under the Letters Patent
In substance
the effect of the decision of this Court in the case of Mohindra Supply Co2 is that by enacting section 392 the has prohibited an appeal under the Letters Patent against an order passed under section 39 1
This decision again turned upon the specific words used it section 391  2 of the and is not of any assistance in interpreting the provisions of section 48 of the Act with which
we are concerned in the present proceedings
The question a to whether an appeal permitted by the relevant clause of the Letters Patent of a High Court can be taken away by implication had been considered in relation to the provisions of section 588 of the Codes of Civil Procedure of 1877 and 1882
The first part of the said section had provided for an appeal from the orders specified by clauses 1 to 29 thereof and the latter part of the said section had laid down that the orders passed in appeals under this section shall be final
Before the enactment of 1 LLR 2  Sup CI66 8 108 the present Code High Courts in India had occasion to consider whether the provision as to the finality of the appellate orders prescribed by section 588 precluded an appeal under the relevant clauses of the Letters Patent of different High Courts
There was a conflict of decisions on this point
When the matter was raised before the Privy Council in Harrish Chunder Chowdhry vs Kali Sundari Debia1 the Privy Council thus tersely expressed its conclusion It only remains to observe that their Lordships do not think that section 588 of Act X of 1877 which has the effect of restricting certain appeals applies to such a case as this where the appeal is from one of the Judges of the Court to the Full Court
Basing themselves on these observations the High Courts of Calcutta Madras and Bombay had held that section 588 did not take away the right of appeal given by clause 15 of the Letters Patent vide Toolsee Money Dassee  Others vs Sudevi Dassee  Others2 Sabhapathi Chetti  Others vs Narayanasami Chetti3 and The Secretary of State for India in Council vs Jehangir Maneckji Cursetji 4  respectively
On the other hand the Allahabad High Court took a different view vide Banno Bibi and others vs Mehdi Husain and Others5 and Muhammad Naim ul Lah Khan vs Ihsan Ullah Khan6
Ultimately when the present Code was enacted section 104 took the place of section 588 of the earlier Code
Section 1041 provides that an appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders
It will be noticed that the saving clause which refers to the provisions of the Code or to the provi sions of an law for the time being in force gives effect to the view taken by the Calcutta Madras and Bombay High Courts
In fact later the Allahabad High Court itself has accepted the same view in L Ram Sarup vs Mt Kaniz Ummehani 7 
We have referred to these decisions to emphasise the fact that even where the relevant provision of section 5 8 8 of the earlier Code made certain appellate orders final the consensus of judicial opinion was that the said provision did not preclude an appeal being filed under the relevant clause of the Letters Patent of the High Court
In the present case as we have already indicated section 48 in terms saves the provisions of section 47 of the Act as well as those of section 115 of the 1 10 IA 4 at p 17
2 3 19025 Mad
4 5 1889 11 Alld
6 1892 14 AIId
226 FP 7 AIR 1937 Alld
109 Code and that gives full scope to an appeal under clause 18 of the Ordinance which would be competent when we deal with the question about appeals under section 47 of the Act considered by itself
The result is the appeal is allowed the order passed by the Division Bench of the High Court dismissing the appeal preferred by the appellants under cl
181 of the Ordinance on the ground that it is incompetent is set aside and the said appeal is remitted to the High Court for disposal in accordance with law
In view of the unusual circumstances of this case we direct that parties should bear their own costs incurred so far


Summary:
The respondent s application under section 25 of the Guardians and Wards Act for the custody of respondent s daughter was rejected by the Civil Judge
When the decision was reversed in appeal by a single Judge of the Rajasthan High Court the appellants preferred an appeal to the Division Bench under cl 18 of the Rajasthan High Court Ordinance
This was dismissed on the ground that the appeal was incompetent having regard to sq 47 and 48 of the Guardians and Wards Act
In appeal to this Court HELDThe appeal before the Division Bench of the Rajasthan High Court under cl
181 of the Ordinance was competent
106 H The competence of an appeal before the Division Bench will have to be judged by the provisions of cl 18 of the Ordinance itself and section 48 of the Act has no restrictive impact
Section 48 saves the provisions of section 47 of the Act and section 115 of the Code of Civil Procedure and considered by themselves the provisions of section 47 do not create any bar against the competence of an appeal under cl
181 of the Ordinance where the appeal permitted by section 47 is heard by a single Judge
106 G Section 48 attaches finality to the order passed by the trial Court subject to the provisions prescribed by section 47 of the Act and section 115 of the Code of Civil Procedure
106 E