Judgment Case ID: 239

Judgment:
ivil Appeal No. 14 of 1953. Appeal by special leave granted by the Supreme Court	 by its Order dated the 29th October	 1951	 from the Judgment and Decree dated the 19th July	 1950	 of the High Court of Judicature at Patna (Sinha and Rai JJ.) in appeal from Appellate Decree No. 1152 of 1946 from the Judgment and Decree dated the 24th day of May	 1946	 of the Court of the 1st Additional District Judge in section J. Title Appeal No. I of 1946 arising out of the Judgment and Decree dated the 27th November	 1945	 of the First Court of Subordinate Judge at Monghyr in Title Suit No. 34 of 1944. S.C. Issacs (Ganeshwar Prasad and R. C. Prasad	 with him) for the appellants. B.K. Saran and M. M. Sinha for respondents Nos. 1 9. 1954. April 14. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This appeal raises a question on the construction of section 11 of the Suits Valuation Act. The appellants instituted the suit out of which this appeal arises	 in the Court of the Subordinate Judge	 Monghyr	 for recovery of possession of 12 acres 51 cents of land situated in mauza Bardih	 of which defendants Nos. 12 and 13	 forming the second party	 are the proprietors. The allegations in the plaint are that on 12th April	 1943	 the plaintiffs were admitted by the second party as occupancy tenants on payment of a sum of Rs. 1	950 as salami and put into possession of the. lands	 and that thereafter	 the first party consisting of defendants Nos. 1 to 11 trespassed on them and carried away the crops. The	 suit was 119 accordingly laid for ejecting defendants Nos. I to II and for mesne profits	 past and future	 and it was valued at Rs. 2	950	 made up of Rs. 1	950 being the value of the relief for possession and Rs. 1	000	 being the past mesne profits claimed. Defendants Nos. I to II contested the suit. They pleaded that they had been in possession of the lands as tenants on batai system	 sharing the produce with the landlord.	 from fasli 1336 and had acquired occupancy rights in the tenements	 that the second party had no right to settle them on the plaintiffs	 and that the latter acquired ' no rights under the settlement dated 12th April	 1943. Defendants Nos. 12 and 13 remained ex parte. The Subordinate Judge held	 relying on certain receipts marked as Exhibits A to A 114 which were in the handwriting of the patwaris of the second party and which ranged over the period from fasli 1336 to 1347	 that defendants Nos. I to II had been in possession for over 12 years as cultivating tenants and had acquired occupancy rights	 and that the settlement dated 12th April	 ' 1943	 conferred no rights on the plaintiffs. He accordingly dismissed the suit. The plaintiffs preferred an appeal against this decision to the Court of the District Judge. Monghyr	 who agreed with the trial Court that the receipts	 Exhibits A to A 114 were genuine	 and that defendants Nos. I to 11 had acquired occupancy rights	 and accordingly dismissed the appeal. The plaintiffs took up the matter in second appeal to the High Court	 Patna	 S.A. No. 1152 of 1946	 and there	 for the first time; an objection was taken by the Stamp Reporter to the valuation in the plaint and after enquiry	 the Court determined that the correct valuation of the suit was Rs. 9	980. The plaintiffs paid the additional Court fees required of them	 and then raised the contention that on the revised valuation	 the appeal from the decree of the Subordinater Judge would lie not to the District Court but to the High Court	 and that accordingly section A. No. 1152 of 1946 should be heard as a first appeal	 ignoring the judgment of the District Court. The learned Judges held following the decision 120 of a Full Bench of that Court in Ramdeo Singh vs Raj Narain (1)	 that the appeal to the District Court was competent	 and that its decision could be reversed only if the appellants could establish prejudice on the merits	 and holding that on a consideration of the evidence no such prejudice had been shown	 they dismissed the second appeal. The matter now comes before us on special leave. It will be noticed that the proper Court to try the present action would be the Subordinate Court	 Monghyr	 whether the valuation of the suit was Rs. 2	950 as given in the plaint	 or Rs. 9	880 as determined by the High Court; but it will make a difference in the forum to which the appeal from its judgment would lie	 whether the one valuation or the other is to be accepted as the deciding factor. On the plaint valuation	 the appeal would lie to the District Court; on the valuation as determined by the High Court	 it is that Court that would be competent to entertain the appeal. The contention of the appellants is that as on the valuation of the suit as ultimately determined	 the District Court was not competent to entertain the appeal	 the decree and judgment passed by that Court must be treated as a nullity	 that the High Court should have accordingly heard S.A. No. 1152 of 1946 not as a second appeal with its limitations under section 100 of the Civil Procedure Code but as a first appeal against the judgment and decree of the Subordinate Judge	 Monghyr	 and that the appellants were entitled to a full heating as well on questions of fact as of law. And alternatively	 it is contended that even if the decree and judgment of the District Court on appeal are not to be treated as a nullity and the matter is to be dealt with under section 11 of the Suits Valuation Act	 the appellants had suffered "Prejudice" within the meaning of that section	 in that their appeal against the judgment of the Subordinate Judge was heard not by the High Court but by a Court of inferior jurisdiction	 viz.	 the District Court of Monghyr	 and that its decree was therefore liable to be set aside	 and the appeal heard by the High Court on the merits	 as a first appeal. (1) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278	 121 The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction	 and what the effect of section II of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity	 and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon	 even at the stage of execution and even in collateral proceedings. A defect of jurisdiction	 whether it is pecuniary or territorial	 or whether it is in respect of the subject matter of the action	 strikes at the very authority of the Court to pass any decree	 and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be ' determined only on the application of general principles governing the matter	 there can be no doubt that the District Court of Monghyr was coram non judice	 and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position. Section 11 enacts that notwithstanding anything in section 578 of the Code of Civil Procedure	 an objection that a Court which had 'no jurisdiction over a suit or appeal had exercised it by reason of over valuation or under valuation	 should not be entertained by an appellate Court.	 except as provided in the section. Then follow provisions as to when the objections could be entertained	 and how they are to be dealt with. The drafting of the section has come in and deservedlyfor considerable criticism; but amidst much that is obscure and confused	 there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court	 which would have had no jurisdiction to hear a suit or appeal but for over valuation or under valuation	 is not to be treated as	 what it would be but for the section	 null and void	 and that an objection to jurisdiction based on over valuation or undervaluation should be dealt with under that section and not otherwise. The reference to section 578	 now section 99	 of the Civil Procedure Code	 in the opening words of the section is significant. That section	 while providing that no decree shall be reversed or varied in 16 122 appeal on account of the defects mentioned therein when they do not affect the merits of the case	 excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits	 when the Courts which passed them lacked jurisdiction as a result of over valuation or undervaluation. It is with a view to avoid this result that section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over valuation or under valuation shall Dot be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self contained provision complete in itself	 and no objection to jurisdiction based on over valuation or under valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction	 section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court	 unless there was a consequent failure of justice. It is the same principle that has been adopted in section 1 1 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same	 namely	 that when a case had been tried by a Court on the merits and judgment rendered	 it should not be liable to be reversed purely on technical grounds	 unless it had resulted in failure of justice	 and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court	 unless there has been a prejudice on the merits	 The contention of the appellants	 therefore	 that the decree and judgment of the District Court	 Monghyr	 should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act. On behalf of the appellants Rajlakshmi Dasee V. Katyayani Dasee(1) and Shidappa Venkatrao vs Rachappa Subrao(2) which was affirmed by the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav(3) were relied on as supporting the contention (1) I.L.R. (2) I.L.R. 36 Bom	 628. (3) 46 I.A. 24. 123 that if the appellate Court would have had no jurisdiction to entertain the appeal if the suit had been correctly valued	 a decree passed by it must be treated as a nullity. In Rajlakshmi Dasee vs Katyayani Dasee(1)	 the facts were that one Katyayani Dasee instituted a suit to recover the estate of her husband Jogendra in the Court of the Subordinate Judge	 Alipore	 valuing the claim at Rs. 2	100	 whereas the estate was worth more than a lakh of rupees. The suit was decreed	 and the defendants preferred an appeal to the District Court	 which was the proper Court to entertain the appeal on the plaint valuation. There	 the parties compromised the matter	 and a consent decree was passed	 recognising the title of the defendants to portions of the estate. Then	 Rajlakshmi Dasee	 the daughter of Jogendra	 filed a suit for a declaration that the consent decree to which her mother was a party was not binding on the reversioners. One of the grounds urged by her was that the suit of Katyayani was deliberately under valued	 that if it had been correctly valued	 it was the High Court that would have had the 	competence to entertain the appeal	 and that the con	sent decree passed by the District Judge was accordingly a nullity. In agreeing with this contention	 the High Court observed that a decree passed by a Court which had no jurisdiction was a nullity	 and that even consent of the partes could not cure the defect. In that case	 the question was raised by a person who was not a party to the action and in a collateral proceeding	 and the Court observed: " We are not now called upon to consider what the effect of such lack of	 jurisdiction would be upon the decree	 in so far as the parties thereto were concerned. It is manifest that so fir as a stranger to the decree is concerned	 who is interested in the property affected by the decree	 he can obviously ask for a declaration that the decree is a nullity	 because made by a Court which had no jurisdiction over the subject matter of the litigation" On the facts	 the question of the effect of section 11 of the Suits Valuation Act did not arise for determination	 and was not considered. (1) I.L.R. 124 In Shidappa Venkatrao vs Rachappa Subrao(1) the plaintiffs instituted a suit in the Court of the Subordinate Judge	 First Class	 for a declaration that he was the adopted son of one Venkatrao and for an injunction restraining the defendant from interfering with his possession of a house. The plaint valued the declaration at Rs. 130 and the injunction at Rs. 5	 and the suit was valued for purposes of pleader 's fee at Rs. 69	016 9 0 being the value of the estate. The suit was decreed by the Subordinate Judge	 and against his decree the defendant preferred an appeal to the District Court	 which allowed the appeal and dismissed the suit. The plaintiff took up the matter in second appeal to the High Court	 and contended that on the valuation in the plaint the appeal against the decree of the Subordinate Judge lay to the High Court	 and that the appeal to the District Court was incompetent. This contention was upheld	 and the decree of the District Judge was set aside. It will be seen that the point in dispute was whether on the allegations in the plaint the value for purposes of jurisdiction was Rs. 135 or Rs. 69	016 9 0	 and the decision was that it was the latter. No question of over valuation or under valuation arose	 ' and no decision on the scope of section 11 of the Suits Valuation Act was given. As a result of its decision	 the High Court came to entertain the matter as a first appeal and affirmed the decree of the Subordinate Judge. The defendant then took up the matter in appeal to the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav(2)	 and there	 his contention was that	 in fact	 on its true valuation the suit was triable by the Court of the Subordinate Judge of the Second Class	 and that the District Court was the proper Court to entertain the appeal. The Privy Council held that this objection which was " the most technical of technicalities " was not taken in the Court of first instance	 and that the Court would not be justified " in assisting an objection of that type	 and that it was also untenable. Before concluding, it observed:  The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his (1) I.L.R. 36 Bom. (2) 46 I.A. 24. 125 opponent but to secure revenue for the benefit of the State. .The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State	but to obstruct	 the plaintiff ; he does not contend that the Court wrongly decided to ' the detriment of the revenue but that it dealt with the case without jurisdiction. In the circumstances this plea	 advanced for the first time at the hearing of the appeal in the District Court	 is misconceived	 and was rightly rejected by the High Court. " Far from supporting the contention of the appellants that the decree passed in appeal by the District Court of Monghyr should be regarded as a nullity	 these observations show that an objection of the kind now put forward being highly technical in character should not be entertained if not raised in the Court of first instance. We are therefore of opinion that the decree and judgment of the District Court	 Monghyr	 cannot be regarded as a nullity. It is next contended that even treating the matter as governed by section 11 of the Suits Valuation Act	 there was prejudice to the appellants	 in that by reason of the under valuation	 their appeal was heard by a Court of inferior jurisdiction	 while they were entitled to a bearing by the High Court on the facts. It was argued that the right of appeal was a valuable one	 and that deprivation of the right of the appellants to appeal to the High Court on facts must therefore be held	 without more	 to constitute prejudice. This argument proceeds on a misconception. The right of appeal is no doubt a substantive right	 and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court	 and the plaintiffs have exercised that right. Indeed	 the undervaluation has enlarged the appellants ' right of appeal	 because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued	 by reason of the under valuation they obtained right to two appeals	 one to the District Court and another to the High Court. The complaint of the 126 appellants really is not that they had been deprived of a right of appeal against the judgment of the Subordinate Court	 which they have not been	 but that an appeal on the facts against that judgment was heard by the District Court and not by the High 	Court. This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of section 1 1 of the Suits Valuation Act. The question	 therefore	 is	 can a decree passed on appeal by a Court which had jurisdiction to entertain it only by reason of under valuation be set aside on the ground that on a true valuation that Court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches	 and have come to the conclusion that mere change of forum is not a prejudice within the meaning of section 11 of the Suits Valuation Act. Vide Kelu Achan vs Cheriya Parvathi Nethiar (1)	 Mool Chand vs Ram Kishan (2) and Ramdeo Singh y. Baj Narain (3). In our judgment	 the opinion expressed in these decisions is correct. Indeed	 it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given is itself a matter of prejudice	 then the decree passed by the Subordinate Court or the District Court must	 without more	 be liable to be set aside	 and the words "unless the overvaluation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits" would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court	 not in all cases and as a matter of course	 but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum. A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing (1) I.L.R. 46 Mad. (2) I.L.R. 55 All. (3) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278. 127 defects of jurisdiction arising by reason of over valuation	 or under valuation but that	 in fact	 this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined. It is next argued that in the view that the decree of the lower appellate Court is liable to be reversed only on proof of prejudice on the merits	 the second appellate Court must	 for the purpose of ascertaining whether there was prejudice	 hear the appeal fully on the facts	 and that	 in effect	 it should be Heard as a first appeal. Reliance is placed in support of this contention on the observations of two of the learned Judges in Ramdeo Singh vs Rai Narain (1). There	 Sinha J. observed that though the second appeal could not be treated as a first appeal	 prejudice could be established by going into the merits of the decision both on questions of fact and of law		 and that that could be done under section 103 of the Civil Procedure Code. Meredith J. agreed that for determining whether there was prejudice or not	 there must be an enquiry on the merits of the decisions on questions of fact but he was of opinion that that could be done under section I I of the Suits Valuation Act itself. Das J.	 however	 declined to express any opinion on this point	 as it did not arise at that stage. The complaint of the appellants is that the learned Judges who heard the second appeal	 though they purported to follow the decision in Ramdeo Singh vs A. Narain (1) did not	 in fact	 do so	 and that there was no consideration of the evidence bearing on the questions of fact on which the parties were in dispute. That brings us to the question as to what is meant by prejudice" in section II of the Suits Valuation Act. Does it include errors in findings on questions of fact in issue between the parties ? If it does	 then it will be obligatory on the Court hearing the second appeal to examine the evidence in full and decide whether the (1) I.L.R. 27 Patna tog; A.I. R	 1949 Patna 278. 128 conclusions reached by the lower appellate Court are right. If it agrees with those findings	 then it will affirm the judgment; if it does not	 it will reverse it. That means that the Court of second appeal is virtually in the position of a Court of first appeal. The language of section 11 of the Suits Valuation Act is plainly against such a view. It provides that overvaluation or under valuation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over valuation or under valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over valution or under valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section. It must further be noted that there is no provision in the Civil Procedure Code	 which authorises a Court of second appeal to go into questions of fact on which the lower appellate Court has recorded findings and to reverse them. Section 103 was relied on in Ramdeo Singh vs Raj Narain (1) as conferring such a power. But that section applies only when the lower appellate Court has failed to record a finding on any issue	 or when there had been irregularities or defects such as fall under section 100 of the Civil Procedure Code. If these conditions exist	 the judgment under appeal is liable to be set aside in the exercise of the normal powers of a Court of second appeal without resort to section 11 of the Suits Valuation Act. If they do not exist	 there is no other power under the Civil Procedure Code authorising the Court of second appeal to set aside findings of fact and to re hear the appeal itself on those questions. We must accordingly hold that an appellate Court has no power under section 1 1 of the Suits Valuation Act to consider whether 'the findings of fact recorded by the lower appellate Court are correct	 and that error in those findings cannot be held to be prejudice within the meaning of that section. So far	 the definition of "prejudice" has been negative in terms that it cannot be mere change of forum (1) I.L.R. 27 Patna 109. 129 Dr mere error in the decision on the merits. What then is Positively prejudice for the purpose of section 11 ? That is a question which has agitated Courts in India ever. since the enactment of the section. It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in injustice	 that would be prejudice within section 11 of the Suits Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under valuation on the small cause side. The procedure for trial of suits in the Small Cause Court is summary; there are no provisions for discovery or inspection; evidence is not recorded in extenso	 and there is no right of appeal against its deci sion. The defendant thus loses the benefit of an elaborate procedure and a right of appeal which he would have had	 if the suit had been filed on the original side. It can be said in such a case that the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case. No purpose	 however	 is. served by attempting to enumerate exhaustively all possible cases of prejudice which might come under section II of the Suits Valuation Act. The jurisdiction that is conferred on appellate Courts under that section is an equitable one	 to be exercised when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over valuation or under valuation and a consequential failure of justice. It is neither possible nor even desirable to define such a risdiction. closely	 or confine it within stated bounds. Pt can only be predicated of it that it is in the nature of a revisional jurisdiction to be exercised with caution and for the ends of justice	 whenever the facts and 	situations call for it. Whether there has been prejudice or not is	 accordingly	 a matter to be determined on the facts of each case. We have now to see whether the appellants have suffered any prejudice by reason of the under valuation. They were. the plaintiffs in the action. They valued the suit at Rs. 2	950. The defendants raised no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate 17 130 trial	 it is they who appealed to the District Court as they were bound to	 on their valuation. Even there	 the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the deci sion went on the merits against the plaintiffs	 they preferred section A. No. 1152 of 1946 to the High Court of Patna	 and if the Stamp Reporter had not raised the objection to the valuation and to the Court fee paid	 the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of the law	 if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own. If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over valuation or undervaluation should be treated as a nullity	 then of course	 they would not be estopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That	 however	 is not the position under section 1 1 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to. the prejudice of their opponents	 who had acquiesced therein ? There is considerable authority in the Indian Courts that clausts (a) and (b) of section I 1 of the Suits Valuation Act should be read conjunctively	 notwithstanding the use of the word "or." If that is the correct interpretation	 the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be construed disjunctively	 and the parties held entitled under section 1 1 (1) (b) to raise the objection for the first time in the appellate Court	 even then	 the recuirement as to prejudice has to be satisfied	 and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from one 's own act. Courts cannot recognise that as prejudice which flows from the action of the 131 very party who complains about it. Even apart from this	 we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that Court; ' it gave its decision on the merits on a consideration of the entire evidence in the case	 and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under section 11 of the Suits Valuation Act is correct. In the result	 the appeal fails and is dismissed with costs. Appeal dismissed.

Summary:
The policy underlying section 11 of the Suits Valuation Act	as also of sections 21 and 99 of the Code of Civil Procedure	 is that when a case has been tried by a Court on the merits and judgment rendered	 it should not be liable to be reversed purely on technical grounds	 unless a failure of justice has resulted. The policy of the Legislature has been to treat objections as to jurisdiction	 both territorial and pecuniary	 as technical and not open to consideration by an appellate Court	 unless there has been prejudice on the merits. Mere change of form is not prejudice within the meaning of section 11 of the Suits Valuation Act; nor a mere error in the decision on the merits of the case. It must be one directly attributable to over valuation or under valuation. Whether there has been prejudice or not is a matter to be determined on the facts of each case. The jurisdiction under section 11 is an equitable one to be exercised	 when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over valuation or under valuation and a consequential failure of justice. It is neither possible	 nor desirable to define such jurisdiction closely or confine it within stated bounds. 118 A party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Ramdeo Singh vs Baj Narain (I.L.R. 27 Patna 109); Bajlakshmi Dasee vs Katyayani Dasee (I.L.R. ; Shidappa Venkatrao vs Rachappa Subrao (I L.R. 36 Bom. 628) ; Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav (46 I.A. 24) ; Kelu Achan vs Cheriya Parvathi Nethiar (I.L.R. 46 Mad. 631) Mool Chand vs Bam Kishan (I.L.R. 55 All. 315) referred to.