Musammat Jamna Kuer . Appellant v. Lal Bahadur . Respondents
1949-12-20
B.K.MUKHERJEA, FAZAL ALI, KANIA, MAHAJAN
body1949
DigiLaw.ai
Mahajan, J.—This appeal is before us on a certificate granted by the High Court of Judicature at Allahabad under section no of the Code of Civil Procedure. The respondents were not represented before us and the appeal was heard ex parte. The point involved is a simple one. We are asked to correct a mistake that has crept in the High Courts judgment owing to an oversight. 2. The circumstances giving rise to the appeal are these. On 21st September 1935 an application was made by the sons and grandsons of one Gauri Shankar under section 4 of the United Provinces Encumbered Estates Act to the Sub Divisional Officer, Faridpur, district Bareilly. It was forwarded, under section 6 of the Act, to the Special Judge on 23rd September 1935. The applicants filed a list of debts due by them and also a list of the properties owned by them which comprised two items only. On 20th August 1936 a supplementary list of properties as belonging to them was filed by the debtors and it was said that the omission to mention these in the original list was due to a mistake. These properties were roughly of the value of Rs. 70,000/-. In the UP. Gazette dated 15th May 1937 the whole list of the properties alleged by the debtors as belonging to them was published. On 19th August 1937 Mst. Jamna Kuer, niece of Gauri Shankar and half sister of Kunj Behari, his brothers son, filed a petition under section 11 of the Act claiming all the properties mentioned in the supple-mentary list dated 20th August, 1936 as hers on a number of grounds. Inter alia, it was alleged that she was the legal heir to Kunj Behari Lal deceased, the last owner of these properties. Her claim covered properties Nos. 3 to 37 in the gazette notification. 3. On the 29th April 1942 the pleader for the debtors made a statement admitting that the properties mentioned in items 3 to 37 of the Gazette notification were inherited by Gauri Shankar from Kunj Beha;i and that items 1 and 2 of the gazette notification were the only ancestral properties of the debtors. The principal issue raised in the case was whether after the death of Kunj Behari, his half sister Mst. Jamna Kuer was entitled to his property, or whether Gauri Shankar, his uncle, was the next heir. 4.
The principal issue raised in the case was whether after the death of Kunj Behari, his half sister Mst. Jamna Kuer was entitled to his property, or whether Gauri Shankar, his uncle, was the next heir. 4. The trial Judge dismissed the claim of Mst. Jamna Kuer holding that the word "sister" in section 2 in the Hindu Law of Inheritance ("Amendment) Act, 1929, did not include a half sister, and that being so, she was not entitled to inherit Kunj Beharis estate, his legal heir being Gauri Shankar. This decision was reversed in appeal by the High Court of Judicature at Allahabad in view of two decisions of their Lordships of the Privy Council in Sahodra v. Bam Babu, (1. (1943) All. L.J. 211.) and Mst. Besar Kuar v. Bishundeo Singh, (2. A.I.E. 1943 P.C. 184.) where they held that for the purposes of the Hindu Law of Inheritance (Amendment) Act, 1929, a half sister had the same rights as a full sister. In the result Mst. Jamna Kuers appeal was allowed and it was declared that she was entitled to the properties left by Kunj Behari. 5. In the concluding portion of the judgment the learned Judges made a specific declaration to the effect that Jamna Kuer was entitled to 2-1/2 biswas zamindari of village Kaman, the cash certificates and the nine shares of the District Cooperative Bank, all entered in the application dated the 20th August 1936 of the applicants under Section 4 of the Encumbered Estates Act. This declaration seems to have been made under some misapprehension as the list filed by the applicants on 20th August 1939 was not limited to these properties. The items regarding which the High Court made the declaration in the concluding portion of the judgment had been mentioned by the objector Mst. Jamna Kuer at the foot of her original objection petition as belonging to her and in her position. She, however, subsequently amended the.claim and claimed all the properties mentioned in the list of 20th August, 1936 by the applicants as belonging to the estate of Kunj Behari. Her claim was not limited to only those properties which had been mentioned by her originally at the foot of her objection petition.
She, however, subsequently amended the.claim and claimed all the properties mentioned in the list of 20th August, 1936 by the applicants as belonging to the estate of Kunj Behari. Her claim was not limited to only those properties which had been mentioned by her originally at the foot of her objection petition. It was common ground between the parties that items 3 to 37 in the gazette notification of 15th May 1936 were the property of Kunj Behari and the person who was held to be legal heir was entitled to all those properties. 6. The appellant made an attempt to have this error in the High Courts judgment corrected by means of a review petition but in this she was unsuccessful. In the judgment given in the review petition the learned Judges of the High Court made the following observations : — "Now that we have been taken through the printed record including page 11, we have reason to believe, in view of paragraph No. 7 at page 11 of the printed record, that the result of the appeal should have been a decision that all the property entered in the written statement of the 20th August, 1936 belonged to Mussammat Jamna Kuer as she was the heiress of Kunj Behari Lal and the applicants under Section 4 were not. Un-fortunately on the date we decided the appeal Mr. P.M. Verma him-self did not understand the case of his client in full and no representative of his client enlightened him. Consequently he was not able to show us that all the properties in the written statement of 20th August, 1939 had been admitted by the applicants in the Encumbered Estates Act proceeding to have belonged to Kunj Behari Lal and that by the amendment of the claim of Mussammat Jamna Kuer (i.e.., the addition of paragraph 15), Mst. Jamna Kuer had intended to claim all the properties entered in the written statement of 20th August 1936. If our decision did not give to Mst. Jamna Kuer, all that she was entitled to, it was not because we made any mistake which was apparent on the face of the record, but because from the time of the amendment of the claim of Mst.
If our decision did not give to Mst. Jamna Kuer, all that she was entitled to, it was not because we made any mistake which was apparent on the face of the record, but because from the time of the amendment of the claim of Mst. Jamna Kuer, that is to say, from 16th October, 1930, there had been no clear pleadings or arguments." Thus the review petition was dismissed in spite of the finding that the appellant was entitled to a declaration as regards all the properties mentioned in the written statement of 20th August 1936, on the technical ground that no error on the face of the record was held to be established. 7. An application made by Mst. Jamna Kuer for leave to appeal to their Lordships of the Privy Council from the decree of the High Court was granted. In view of the enlarged jurisdiction of this Court, the appeal has come before us. 8. There can be no doubt that this appeal must be allowed. The mistake as to the items of property regarding which Mst. Jamna Kuer had laid claim is apparent on the face of the record. The trial Judge had clearly stated in his judgment that Jamna Kuers claim related to properties 3 to 37 of the gazette notification. In paragraph 15 of her amended objection petition bad laid claims to all the properties left by Kunj Behari. On the 29th April 1942 it was admitted by the pleader of the applicants that all these properties related to the estate of Kunj Behari and that so far as the debtors were concerned, they were owners of only two properties mentioned in the gazette notification. In this situation it would have been appropriate if the High Court had corrected this error on the review petition and saved the appellant the trouble and expense of an appeal to the Privy Council or to this Court. Whether the error occurred by reason of the counsels mistake or it crept in by reason of an oversight on the part of the court was not a circumstance which could affect the exercise of jurisdiction of the court to review its decision. We have no doubt that the error was apparent on the face of the record and in our opinion the question as to how the error occurred is not relevant to this enquiry.
We have no doubt that the error was apparent on the face of the record and in our opinion the question as to how the error occurred is not relevant to this enquiry. A mere look at the trial courts decision indicates the error apart from anything else. 9. The result is that the appeal is allowed and the appellant is declared entitled to all the properties mentioned in the gazette notification of 15th May 1937 including Nos. 3 to 37. She had already been given 18 items out of this and she is hereby declared owner of the remaining 9 items. Her claim is fully specified in paragraph 13 of the statement of the appellants case to this Court. The appellant will have her costs of this appeal.