IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OSA No.: 2 of 2003 & Cross Objections No. 4 of 2003 Reserved On. 4.3.2009. Date of decision: 10.4.2009 Vijay Devi … Appellant Versus Navendra Singh Katoch and others … Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 Yes. For the appellant: Mr. K.D.Sood, Advocate. For the respondent No1: Mr. Bhupinder Gupta Sr. Advocate with Mr. Anand Sharma, Advocate. Per Deepak Gupta, J. The present appeal and cross objections are directed against the judgement and decree dated 4.10.2002 delivered by a learned Single Judge of this Court in Civil Suit No. 14 of 1996 titled Navendra Singh Katoch vs. Vijay Devi and another. Maharaja Ranvijay Singh S/o late Bir Bikram Singh was the original owner of the property in dispute. He expired on 4.7.1955 leaving behind a widow Smt. Kalindi Devi and two daughters Smt. Maya Devi (defendant NO.2) and Smt. Swaroop Kumari. The plaintiff Navendra Singh is the son of defendant No.2. Smt. Kalindi Devi died on 21.2.1973 while her 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 daughter Smt. Swaroop Kumari died issueless on 25.2.1990. The plaintiff filed the suit in the High Court claiming that Maharaja Ranvijay Singh had executed a Will dated 21.2.1949. As per this Will he had given certain rights in his estate to his widow, which rights were to devolve upon his two daughters, Smt. Maya Devi and Smt. Swaroop Kumari, after the death of his widow. According to the plaintiff, after the death of the two daughters the entire estate was to devolve on the eldest male child of such daughters and since the plaintiff is the only male child in the family the entire estate has devolved upon him. Smt. Swaroop Kumari died issueless on 25.2.1990 at the age of about 70 years. According to the plaintiff, defendant No.1 Vijay Kumari taking advantage of the old age and ill health of the deceased Smt. Swaroop Kumari, manipulated and procured a Will in her favour in the month of May, 1988. The plaintiff came to know about the Will only when the defendant No.1 approached the Tehsildar, Nahan, for attestation of the mutation of inheritance qua the estate of deceased Smt. Swaroop Kumari in her favour on the basis of the said Will. This mutation was sanctioned in favour of defendant No.1. Appeal preferred by the plaintiff against the said order was dismissed on the ground that complicated questions of facts and law were involved which could be decided only by a competent Civil Court. The plaintiff challenged the validity of the Will and also alleged that Smt. Swaroop Kumari did not have any right to execute the Will in view of the fact that she only had a limited estate as per the Will of late Maharaja Ranvijay Singh. The suit was contested by defendant No.1. She claimed that her family and the family of late Maharaja Ranvijay Singh were neighbours 3 and were having very cordial relations. The defendant No.1 alleged that deceased Swaroop Kumari used to treat her like a daughter and she had executed a Will dated 24.5.1988 in a sound disposing mind out of her own free will and consent. The defendant No.1 also alleged that no will had been executed by Maharaja Ranvijay Singh on 21.2.1949. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is not maintainable, as alleged? OPD-1 2. Whether the suit is collusive between the plaintiff and defendant No.2 as alleged? If so, to what effect? OPD-1 3. Whether the plaintiff is estopped from filing the present suit by his own acts and conduct? OPD-1 4. Whether Maharani Kalindi Devi was a lmited owner, as alleged? If so, to what effect? OPP. 5. Whether Maharani Kalindi Devi had executed a valid will in favour of the plaintiff on 19th August, 1963, as alleged? OPP. 5-A. Whether Maharaja Ranvijay Singh had executed a valid will in favour of the plaintiff on 21.2.1949 as alleged? OPP. 6. Whether Rani Swaroop Kumari has executed a valid will on 24.5.1988 in favour of the defendant No.1 as alleged? OPD-1 7. Whether the orders passed by the Collector on 18.10.1993 and by the Divisional Commissioner on 6.8.1995 are illegal, null and void, as alleged? If so, to what effect? OPP. 8. Relief. Issues No. 1 and 3 were not pressed by the defendant No.1. Issues No. 2 and 6 were decided against the defendant No.1. Issue No.4 was decided against the plaintiff. Issues No. 5, 5-A and 7 were decided in favour of the plaintiff. The Will dated 24.5.1988 allegedly executed by Smt. Swaroop Kumari was held to be not proved. However, it was held 4 that Smt. Swaroop Kumari had full right to alienate and encumber the property falling to her share. The suit of the plaintiff was, however, dismissed on the ground that Rani Kalindi Devi, grand-mother of the plaintiff, became absolute owner of the property on coming into force of the Hindu Succession Act, 1956, as alleged by the plaintiff himself. Smt. Swaroop Kumari was held to be full owner of her own share. It was held that she died intestate and since her sister, Maya Devi, mother of the plaintiff, was alive, the plaintiff had no right to inherit the property of Smt. Swaroop Kumari under Section 15(2)(a) of the Hindu Succession Act, 1956. Therefore, the suit filed by the plaintiff was dismissed. However, it was held that Smt. Swaroop Kumari had full right to alienate and encumber the property falling to her share. The orders passed by the Collector and the Divisional Commissioner were held to be illegal, null and void. Though the suit filed by the plaintiff was dismissed the defendant No.1 has filed the present appeal challenging the findings and judgement of the learned trial Court in respect of issues 6 and 7. The plaintiff has raised a preliminary objection to the maintainability of the appeal but has also filed cross-objections challenging the finding of the trial Court in respect of issue No. 4 and partly in respect of issue No. 5-A. Firstly, we shall deal with the preliminary objections raised on behalf of the plaintiff-respondent. Shri Bhupender Gupta, Sr. Advocate learned counsel appearing on behalf of the respondent has urged that an appeal lies only against a decree and since no decree has been passed against the appellant the appeal is not maintainable. On the other hand, Shri Kapil Dev Sood, Advocate, learned counsel for the appellant has 5 urged that under Section 10 of the Delhi High Court Act, 1966 (as applicable to the State of Himachal Pradesh vide State of Himachal Pradesh Act, 1970) an appeal lies against a judgement and hence the present appeal against the findings delivered on issues No. 6 and 7 is maintainable. It would be pertinent to mention that amongst the other reliefs claimed in the suit the plaintiff had also prayed for the following relief:- “Declaration to the effect that the Will dated 24.5.1988 alleged to have been executed by the deceased Smt. Swaroop Kumari in favour of defendant No.1 is null and void having been obtained under undue influence and the same is not binding on the rights of the plaintiff in respect of the property detailed in Schedule-I, annexed to the plaint.” There is no manner of doubt that under Section 96 of the Code of Civil Procedure an appeal lies only against the decree and the normal rule is that no appeal lies against a finding if the ultimate decree is in favour of the party. The Apex Court in Ganga Bai vs. Vijay Kumar and others, AIR 1974 SC 1126, held as follows:- “17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal.” The Apex Court in Deva Ram and another vs. Ishwar Chand and another, AIR 1996 SC 378 held as follows:- “26. Thus an appeal does not lie against mere ‘findings’ recorded by a Court unless the findings amount to a “decree” or “order”. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue, has no right of appeal and he cannot 6 question those findings before the appellate Court. (See Ganga Bai v. Vinay Kumar, (AIR 1974 SSC 1126).” It would, however, be pertinent to mention that in para 30 the Apex Court went on to hold as follows:- “30. The High Court of Andhra Pradesh in Bansi Lal Ratwa v. Laxminarayan (1969) 2 Andhra Weekly Reporter 246, and the Full Bench of the High Court of Patna in Arjun Singh v. Tara Das Ghosh, AIR 1974 Patna 1, have taken the view that an appeal would not lie against mere adverse finding unless such finding would constitute resjudicata in subsequent proceedings. We are, however, not concerned with this aspect of the matter in the present case nor are we concerned with the earlier aspect as the plea of resjudicata having not been raised in the written statement, the appellant cannot be permitted to raise the plea here.” The observation of the Apex Court made here-in-above clearly show that if the findings in the previous suit would constitute resjudicata in subsequent proceedings then the person aggrieved by such findings may have a right of filing an appeal. Following the aforesaid two judgements, a learned Single Judge of this Court in Shakuntla Devi vs. Santosh and others, 2002(1) Cur. L.J.(H.P.)-338 and in Satya Devi and another vs. Gauran Devi and another, Latest HLJ 2002 (HP) 193, held that an appeal does not lie against mere findings recorded by a Court unless the findings amount to a decree or order. The learned Single Judge held that where the suit is dismissed the defendant against whom adverse findings might have come to be recorded on some issues has no right of appeal and he cannot question the findings before the Appellate Court. In Banarsi and others vs. Ram Phal, AIR 2003 SC 1989, the Apex Court held as follows:- 7 “8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand and another v. Gopal, 1967 (3) SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P.) Ltd., 1970 (3) SCC 573; Smt. Ganga Bai v. Vijay Kumar and others 1974, 2 SCC 393. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgement.” A bare reading of the last sentence of the above quoted judgement clearly shows that the Supreme Court itself drew a distinction between a decree and a judgement. The State of Himachal Pradesh was established vide the State of Himachal Pradesh Act, 1970, w.e.f. 25th January, 1971. Prior to this Himachal Pradesh was union territory. It would be pertinent to mention that reorganisation of the State of Punjab took place w.e.f. 1.11.1966 when certain hilly areas of the State of Punjab were merged in the than Union territory of Himachal Pradesh. Prior to 1.11.1966 the areas which formed part of the erstwhile State of Punjab fell within the jurisdiction of the than High Court of Punjab. The original areas of the State of Himachal Pradesh fell under the jurisdiction of the Judicial Commissioner of the State of Himachal Pradesh. The High Court of Delhi was constituted under the Delhi High Court Act, 1966. The jurisdiction of the Delhi High Court was extended to the entire area forming part of the union territory of the Himachal Pradesh w.e.f. 1st May, 1967. Prior to the constitution of the Delhi High Court the area falling within the jurisdiction of this Court also fell within jurisdiction of the Punjab High Court. 8 Section 10 of the Delhi High Court Act reads as follows:- “10. Powers of Judges.- (1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub- section (2) of section 5 on that Court an appeal shall lie from the judgement of the single Judge to a Division Court of that High Court. (2) Subject to the provisions of sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi.” A bare reading of Section 10(1) shows that an appeal lies against any judgement passed by a Single Judge of the High Court exercising ordinary civil jurisdiction to a Division Bench of the Court. The High Court of Himachal Pradesh was constituted in terms of Section 21 of the State of Himachal Pradesh Act, 1970. Sections 23 and 25 of the said act relate to the jurisdiction of the Court and are relevant for our purpose. They read as follows:- “23. Jurisdiction of High Court.- The High Court of Himachal Pradesh shall have, in respect of any part of the territories comprised in the State of Himachal Pradesh, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of that part of the said territories by the High Court of Delhi. 24. xxx….. xxxx…. xxx…. 25. Practice and Procedure in High Court.- Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of Delhi shall, with the necessary medications, apply in relation to the High Court of Himachal Pradesh.” A bare perusal of these two sections shows that the High Court of Himachal Pradesh will have the same jurisdiction as was being exercised 9 by the High Court of Delhi before the appointed date i.e. 25th January, 1971. Therefore, the present appeal has been filed under Section 10 of the Delhi High Court Act and as pointed out above an appeal lies against a judgement and not against a decree. What is the import of the word ‘judgement’ has been the subject matter of a large number of decisions. A Full Bench of the Delhi High Court in Begum Aftab Zamani vs. Lal Chand Khanna, AIR 1969 Delhi 85 , while dealing with the scope of the word ‘judgement’ occurring in Clause 10 of the Letters Patent and Section 10 of the Delhi High Court Act, held as follows:- 4. xxxx…..xxx…. In order to decide whether an adjudication should be treated as a “judgement” within the meaning of clause 10 of the Letters Patent, we feel that regard should be had not to the form of the adjudication but to its effect upon the suit or the civil proceeding in which it is made. If its effect, whatever its form and whatever the nature of the proceeding in which it is made, is to put an end to the suit or proceeding, or if its effect, if not complied with, is to put an end to the suit or proceeding, the adjudication is indisputably a “judgement” within the meaning of this clause. Other decisions or determinations adjudicating upon a disputed controversy on the merits in a suit or proceeding may also appropriately fall within the contemplation of the word “judgement”. It is not possible to lay down any definite rule which would meet the requirements of all cases and all that we may say is that in determining whether an order or decision constitutes a “judgement” or not, the Court has to take into consideration the nature of the order and its effect upon the suit or the civil proceeding in which it is made. Each case would thus depend on its own peculiar facts and circumstances. 5. We have arrived at this conclusion on the plain reading of Section 10 of the Act in the background of the statutory scheme. In our view, the draftsman could neither have intended to restrict the right of appeal only to final judgements disposing of the entire suit, nor could he have intended it to extend to all orders made during the course of trial, however ministerial or procedural in their nature or ineffectual on the rights of the parties. 10 6. xxx. Xxx… xxx…. 7. In the present case, the judgement has indisputably disposed of the suit finally, with the result that nothing more remains to be done in the trial of the suit. Whether a decree is also to be framed in agreement with the judgement under the Civil P.C. is , in our opinion, immaterial because the Act does not take notice of decrees and in terms it provides for appeals only from judgements. The judgement under appeal, however, conclusively determines the rights of the parties with regard to the matters in controversy in the suit and it embodies in itself the formal expression of the adjudication. Merely because as a result of the adjudication, it purports also to grant a decree, would not deprive the judgement of the characteristics of a decree for the purposes of Court Fees Act. This judgement must, therefore, be held to amount to a decree and, therefore, excluded from the operation of Article 11, Schedule II. The Act, it may be remembered, does not define either “judgement” or “decree”. It merely makes the judgement appealable under Section 10. To be appealable, as hereinbefore discussed, the judgement, broadly stated, must be more than a mere statement given by the Judge of the grounds of a decree or order; in other words, it must contain or embody a decision on a dispute affecting the merits as well. In the case before us, the judgement also contains all the criteria of a decree and this indeed is not contested. We are, therefore, inclined to hold that this case quite clearly falls within the purview of Article 1, Schedule I and is subject to payment of ad valorem court-fee.” The Apex Court also considered the scope of the word judgement in a detailed judgement in Shah Babulal Khimji vs. Jayaben D. Kania and another, AIR 1981 SC 1786. After considering the entire law on the subject held as follows:- “113. Thus, under the Code of Civil Procedure, a judgement consists of the reasons and grounds for a decree passed by a court. As a judgement constitutes the reasons for the decree it follows as a matter of course that the judgement must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgement as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the 11 definition of the word ‘judgement’ as used in Cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the term ‘order’ or ‘decree’ anywhere. The intention, therefore, of the givers of the Letters Patent was that the word ‘judgement’ should receive a much wider and more liberal interpretation than the word ‘judgement’ used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgement; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word ‘judgement’ has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgement can be of three kinds:- (1) A final judgement - A judgement which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the judgement, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgement within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgement to a Division Bench.” It is clear that the Apex Court drew a distinction between the definition of decree and judgement as occurring in Code of Civil Procedure and the term judgement as used in the Letters Patents. In respect of a final judgement the Apex Court clearly held that a judgement which decides all the questions or issues so far as the trial Judge is concerned and leaves nothing else to be decided is a final judgement. A ‘judgement’ has been described as constituting the reasons for the decree that follows. Reasons are part of the judgement while the decree is the operative part of the order. Therefore, we are of the considered view that the law cited by the respondent which relates only to Section 96 of the Code of Civil Procedure is not applicable to the present appeal which has been filed under Section 10 of the Delhi High Court Act. This provision allows a party to challenge a judgement. The findings given by the learned trial 12 Judge holding the Will set up by the defendant No.1 to be invalid as well as the findings recorded by him that the orders of the Revenue Officials allowing mutation of the property in favour of the defendant No.1 are null and void, definitely amount to a judgement against the appellant and therefore, we are of the view that the appellant is entitled to challenge the same by means of the present appeal. We may also point out that the Apex Court while observing that no appeal lies against a finding has come to this conclusion on the ground that the findings in the earlier suit do not act as resjudicata in the subsequent suit. The Apex Court in para 30 in Deva Ram and another vs. Ishwar Chand and another, supra, has made reference to two judgements of the Andhra Pradesh High Court and the Full Bench judgement of the High Court of Patna, wherein a view had been taken that if the adverse findings would constitute resjudicata in subsequent proceedings then an appeal would lie against such findings. The Apex Court did not express its views on the matter. However, if the judgements of the Apex Court cited here-in-above are read in detail it is clear that the Apex Court held that a person is not entitled to challenge the findings since they do not operate as rejudicata in subsequent proceedings. The Apex Court did not decide the question as to whether findings which would amount to resjudicata could be challenged or not. In addition to the two judgements i.e. Bansi Lal Ratwa v. Laxminarayan, (1969) 2 Andhra Weekly Reporter 246, and the Full Bench of the High Court of Patna in Arjun Singh v. Tara Das Ghosh, AIR 1974 Patna 1, a Full Bench of the Jammu and Kashmir High Court in The Jammu and Kashmir Bank vs. Lal Mohamed Bangroo, AIR 13 1969 J & K