JUDGMENT <NAME> and <NAME>, JJ.

1. This appeal arises out of a suit brought by the plaintiff-appellant to recover money due on a mortgage bond payable by instalments. The plaintiff alleged that the defendants had after repeated demands paid two small sums, and the suit was for the balance that remained unpaid. The defence in substance was that the suit was barred by limitation, that the terms of the mortgage bond had been subsequently modified by a verbal contract, and that the defendants having performed their part of that contract, the bond was satisfied.

2. <ORG> found that the part payments alleged in the plaint were not proved, that all the instalments under the bond except the last two were in consequence barred by limitation, and that the subsequent oral contract set up was not established; and it accordingly decreed the suit in part.

3. On appeal <ORG> has dismissed the whole suit on the ground that it is barred by limitation.

4. In second appeal it is contended that <ORG> is wrong in law in dismissing the whole suit on the ground of limitation, when it ought to have affirmed the decree of the first Court.

5. The suit being one for the recovery of money due on a mortgage bond by the sale of the mortgaged property, the provision of the Limitation Act applicable to it is Article 132 , Schedule II; See Ram Din v. Kalka Prasad I.L.R. 7 All. 502 <CITATION> . 12 Cal. 389 and <CITATION> . 14 Cal. 731. The period of limitation under that article is twelve years, and it runs from the time when the money becomes due; and the question is when did the money sued for become due. The mortgage bond stipulates that the money borrowed shall be paid by certain instalments, and that upon default in the payment of any one instalment the mortgagee may at his pleasure sue either for that instalment or for the whole of the money then remaining unpaid. And it is admitted on both sides that upon the facts found, the claim for all the instalments except the last two is barred upon any view of the case, but that the claim for the last two instalments would or would not be barred according as it is held that time runs from the date of the first default or from the due dates of those two instalments. The contention on behalf of the appellant is that the two installments became due within title meaning of article 132 on their respective due dates; while on the other side, it is urged that the money became due as soon as the first default 'was made. The learned <NAME> for the appellant, in support of his contention, cites <NAME> v. Jalpa Prasad I.L.R. 16 All. 371 and <NAME> v. Bowles I.L.R. 8 Bom. 561 and for the respondents the cases of <NAME> v. <NAME> 25 W.R. 278 <CITATION> 1. L. R. 14 Cal. 397 <CITATION> . 20 Cal. 74 Hon Mohun Roy v. <NAME> 15 Cal. 502 <CITATION> . 14 Cal. 352 <CITATION> . 21 Cal. 542 and <NAME> v. Dip Chand I.L.R. 4 Bom. 96 are relied on.

6. The cases cited are all distinguishable from the present, though certain general principles, either expressly enunciated or impliedly relied on in some of them, clearly bear upon the question now before us.

7. The first case cited for the appellant, <NAME> v. <NAME> I.L. R. 16 All. 371 is not one relating to the construction of article 132 of Schedule II of the Limitation Act. The question there was whether, where a decree for money is payable by instalments with a provision that upon default in the payment of any instalment the decree-holder may, if he wishes, execute the decree for the whole sum remaining unpaid, limitation runs in respect of each instalment from its due date, notwithstanding that the whole amount covered by the decree became realisable at the decree holder's option at an earlier date by reason of the judgment-debtor's default; and the learned Judges of <ORG> answered that question in the affirmative. The case evidently was one under clause (b) of article 179 , Schedule II of the Limitation Act, and the effect of the decision is that the ' certain date ' referred to in that clause was the due date for each instalment, notwithstanding that it might have been claimed as realisable at an earlier date. The principle underlying the decision no doubt appears at first sight to lend some support to the appellant's contention that the money sued for became due gradually at the dates of the successive instalments, notwithstanding that the plaintiff had the option of claiming it as having become due at an earlier date; but we are unable to follow this decision, because it is in conflict with the decisions of our own Court in <CITATION> . 20 Cal. 74 and <CITATION> . 21 Cal. 542 cited for the respondents, and also because we find it difficult to understand how money, which, though made payable by instalments, becomes realisable at once upon default in the payment of any instalment, can be said not to have been directed to be paid on the date of such default so as to make limitation run from that date under clause (b) of article 179 merely because it wars optional with the creditor to enforce the condition for immediate payment, when there is nothing to show that the optional right had been waived. Where there is an optional right given to enforce payment of money, such right may be waived; but when it is not waived, or when there is nothing to show that it has been waived, limitation would run from the date when the right accrues. This is what this Court held in <CITATION> . 20 Cal. 74 and not, as the judgment, in <NAME> v. <NAME> puts it, " that the decree-holder on the happening of a default was bound to execute the decree once and for all.

8. The second case cited for the appellant <NAME> v. Bowles I.L.R. 8 Bom. 561 goes against him rather than in his favour. The learned Judge who decided that case accepted as correct the observation of Lord <NAME>, Chief Justice, in <NAME> v. <NAME> (4 Q. B. 515) " that if he (the plaintiff) chose to wait till all the instalments become due no doubt he might do so; but that which was optional on the part of the plaintiff would not affect the right of the defendant, who might well consider the action as accruing from the time the plaintiff had a right to maintain it," and the only ground upon which he held that the suit was not barred was that the language of the bond showed that in case of default in payment of one instalment the whole amount should become due only if a demand for such amount was made, and the suit was brought within the time allowed by law from the date of the demand.

9. In the case of <NAME> v. <NAME> 25 W. R. 278 cited for the respondents, <ORG>, observed that the principle indicated in article 75 of the second Schedule of Act IX of 1871 might be adopted in determining " when the money sued for becomes due " within the meaning of article 132; but the learned Judge himself added that it was not necessary to express any decided opinion upon the point.

10. The other cases cited by the learned <NAME> for the respondents relate either to execution of decrees for moneys payable by instalments, or to suits on instalment bonds in which the provision for the payment of the whole upon default in the payment of an instalment is an unqualified one, and is not left to be enforced at the option of the creditor, and they do not, after what has been said above, require any detailed examination.

11. Confining our attention then to the question for determination in this case, namely, when did the money sued for become due within the meaning of article 132 of Schedule II of the Limitation Act, and bearing in mind that while there is no case directly in point, the balance of authority in this <ORG> upon analogous questions relating to execution of decrees for money payable by instalments, preponderates in favour of the respondents' contentionl, we think we must hold that the decree passed by the Lower Appellate <ORG> dismissing the whole suit is right. The money sued for became due according to the terms of the bond when the first default in the payment of an instalment was made, and it became due none the less because the right to enforce immediate payment was optional with the creditor. The right might have been waived if the creditor chose to do so; but he did not waive it in this case; and there is no question of waiver raised here.

12. It was argued for the appellant that when it was left to the option of the creditor to enforce the provision for immediate payment of the whole, the presumption should be that the right to enforce such payment was waived until the contrary was shown. The answer to this is that the provision being for the benefit of the creditor, the natural presumption is that the right created by it was not waived by him unless the contrary was proved. To use the words of Lord <NAME> in <NAME> v. <NAME> 4 Q. B. 519 the defendant " might well consider the action as accruing from the time the plaintiff' had a right to maintain it." We may add that the rule laid down in <NAME> v. <NAME> that limitation ran from the date of the first default, notwithstanding that it was optional with the creditor to enforce payment of the whole upon such default, has been followed by <ORG> recently in the case of <NAME> v. <ORG> 2 Q. B. 509.

13. For the foregoing reasons we are of opinion that the suit has been rightly dismissed by <ORG>, and that this appeal should be dismissed with costs.


CASE NO.: Appeal (civil) 4481 of 2001 PETITIONER: <NAME> Vs. RESPONDENT: JAI PRAKASH UNIVERSITY AND ORS. DATE OF JUDGMENT: 24/07/2001 BENCH: G.B. Pattanaik & <NAME> JUDGMENT:

B.N.AGRAWAL, J.

Leave granted.

In this appeal decree holder-appellant has challenged the judgment rendered by Patna High <ORG> whereby revision application has been allowed, order passed by the executing <ORG>, rejecting objection under Section 47 of the Code of Civil Procedure (hereinafter referred to as the Code) to the executability of decree passed in title suit No. 115 of 1977, set aside and objection allowed. Plaintiff-appellant filed suit for a declaration that order dated 11th October, 1977, passed by defendant No. 2 (respondent No.3) who was Secretary of <ORG>, <ORG>, terminating the services of plaintiff, was illegal. According to the case of the plaintiff disclosed in the plaint, he was appointed as Routine- cum-Examination Clerk in the said college, which was affiliated to <ORG>, by Principal of the <ORG> on 8.1.1977 which was subsequently approved by the ad hoc <ORG>. After constitution of the regular <ORG>, defendant No.2 passed an order terminating the services of plaintiff in contravention of Statutes of <ORG> which necessitated filing of the present suit. In the said suit, the <ORG> of the <ORG> in question which was defendant No. 1 entered appearance but no written statement was filed and the defendant absented itself and the suit was fixed for exparte hearing which was decreed exparte and the defendants were permanently restrained from giving effect to the order of termination. As the judgment debtors refused to comply the directions contained in the decree, the appellant levied execution. In the said execution case, an objection under Section 47 of the Code was filed on behalf of Principal of the <ORG> as well as the <ORG> objecting to the executability of the decree on grounds, inter alia, that during the pendency of the suit on Ist October, 1980, the <ORG> in question became the constituent unit of the <ORG> and the erstwhile <ORG> ceased to exist but the <ORG> was not impleaded party in the suit and consequently the decree was not executable against it inasmuch as the exparte decree was obtained against the erstwhile management by suppressing this fact. As subsequently during the pendency of the execution case, Jai Prakash <ORG> was formed and the college in question thereupon became a constituent unit of the said <ORG>, the same also filed similar objection to the executability of the decree.

The executing court allowed the objection and thereafter when the matter was taken to <ORG> in revision, the case was remanded to the executing <ORG> to dispose of the objection afresh after giving opportunity of adducing evidence to the parties. After remand the parties adduced evidence in support of their respective cases and the executing <ORG> by its order dated 22nd September, 1997 rejected objection under Section 47 of the Code, against which order when a revision was preferred before <ORG>, the same was allowed, order passed by the executing <ORG> was set aside and objection under Section 47 of the Code was allowed. Hence, this appeal by Special Leave.

Mr. <NAME>, learned Senior Counsel appearing on behalf of the appellant in support of the appeal submitted that although the college in question was taken over by <ORG> as its constituent unit with all its assets and liabilities and thereby it was a case of devolution of interest during the pendency of the suit within the meaning of Order 22 Rule 10 of the Code, <ORG> was not justified in holding that the decree cannot be executed against the <ORG> on the ground that it was not made party in the suit inasmuch the decree could have been passed against the erstwhile management and the <ORG> was bound by it as no step whatsoever was taken by the <ORG> to intervene in the matter by seeking leave to continue which alone was entitled for the same. Learned counsel for the Respondent-<ORG>, on the other hand, submitted that under Order 22 Rule 10 of the Code, it was duty of the plaintiff who was prosecuting the suit to ensure by seeking leave of the <ORG>, that effective relief is granted to him by bringing the <ORG> on record which was a necessary party. It has been further submitted that decree passed against the previous management which has ceased to exist is akin to a decree passed against a dead person without bringing his legal representatives on the record, which is a nullity. Thus, in view of the rival submissions, the following questions arise for our consideration:-

1. Whether in a case of devolution of interest during the pendency of a suit as postulated under Order 22 Rule 10 of the Code, decree passed against the predecessor-in-interest without bringing the successor-in-interest on the record would make the decree nullity and the same can be executed against such a person who was not impleaded as party?

2. Whether application under Order 22 Rule 10 seeking leave of the Court is required under law to be filed by that person alone upon whom interest has devolved during the pendency of the suit and by nobody else?

In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the <ORG> on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed by law, the suit shall abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency but such a suit may be continued with the leave of the <ORG> by or against the person upon whom such interest has devolved. But, if no such a step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom interest had devolved. The <ORG> while enacting Rules 3,4 and 10 has made clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the <ORG> has not prescribed any such procedure in the event of failure to apply for leave of the court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the <ORG> was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record.

Under Rule 10, Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the <ORG>, be continued by or against persons upon whom such interest has devolved and this entitles, the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the <ORG> for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by their Lordships of <ORG> in <NAME> v. <NAME> [1898] 25 Cal.179, he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord <NAME> of <ORG> said in <NAME> v. <NAME> [1851-59] 7 M.I.A. 323, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings.

The effect of failure to seek leave or bring on record the person upon whom the interest has devolved during the pendency of the suit was subject matter of consideration before this Court in various decisions. In the case of <CITATION> AIR 1958 <ORG> 394, <NAME>, J. speaking for himself and on behalf of <NAME>, <NAME> and <NAME> and <NAME>, JJ. laid down the law that if a suit is pending when the transfer in favour of a party was made, that would not affect the result when no application had been made to be brought on the record in the original court during the pendency of the suit.

In the case of <CITATION> (deceased) through his Chela Shiama Dass, AIR 1975 Supreme Court 2159, while considering the effect of devolution of interest within the meaning of Order 22 Rule 10 of the Code, on the trial of a suit during its pendency, this Court has laid down the law at page 2160 which runs thus:-

This rule is based on the principle that trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the <ORG>. When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is Order 22, Rule 10 and not Rule 3 or 4, whether the devolution takes place as a consequence of death or for any other reason. Order 22, Rule 10, is not confined to devolution of interest of a party by death; it also applies if the head of the mutt or manager of the <ORG> resigns his office or is removed from office. In such a case the successor to the head of the mutt or to the manager of the <ORG> may be substituted as a party under this rule.

In the case of <CITATION> AIR 1954 S.C.340, question was raised, when decree passed by a Court is nullity and whether execution of such a decree can be resisted at the execution stage which would obviously mean by taking an objection under Section 47 of the Code. <NAME>, J. speaking for himself and on behalf of <NAME>, <NAME>, <NAME>, JJ., observed at page 352 thus:

It is a fundamental principle well-established that a decree passed by a <ORG> without jurisdiction is a nullity, & 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.

In the case of <CITATION> AIR 1964 S.C.907, the question which fell for consideration before this <ORG> was if a <ORG>, having jurisdiction over the parties to the suit and subject matter thereof passes a decree in a suit which was barred by time, such a decree would come within the realm of nullity and the <ORG> answered the question in the negative holding that such a decree cannot be treated to be nullity but at the highest be treated to be an illegal decree. While laying down the law, the <ORG> stated at page 910 thus:-

If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities.

Again, in the case of <CITATION> AIR 1970 S.C.1475, the <ORG> was considering scope of objection under Section 47 of the Code in relation to the executability of a decree and it was laid down that only such a decree can be subject matter of objection which is nullity and not a decree which is erroneous either in law or on facts. <NAME>, J. speaking for himself and on behalf of <NAME> and <NAME>, <NAME>., laid down the law at pages 1476-77 which runs thus:- A <ORG> executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a <ORG> which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the <ORG> to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing <ORG> will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

In the case of <CITATION> , , this <ORG> held that leave for suing the receiver can be granted even after filing of the suit and held that the infirmity of not obtaining the leave does not bear upon the jurisdiction of the trial court or the cause of action but it is peripheral. It also held that if a suit prosecuted without such leave culminates in a decree, the same is liable to be set aside. These observations do not mean that the decree is nullity. On the other hand, the observation of the <ORG> at page 15 that any litigative disturbance of the <ORG>s possession without its permission amounts to contempt of its authority; and the wages of contempt of <ORG> in this jurisdiction may well be voidability of the whole proceeding would lend support to the view and such decree is voidable but not void. In the case of <CITATION> , AIR 1962 S.C.1230, the question which fell for consideration of this <ORG> was as to whether an executing <ORG> can refuse to execute a decree on the ground that the same has become inexecutable on account of the change in law in Madhya Pradesh by promulgation of M.P.Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 and a decree was passed in ignorance of the same. While answering the question in the affirmative, the <ORG> observed at page 1287 thus:-

The contention that <ORG> cannot question the decree and has to execute it as it stands, is correct, but this principle has no operation in the facts of the present case. The objection of the appellant is not with respect to the invalidity of the decree or with respect to the decree being wrong. His objection is based on the effect of the provisions of the Act which has deprived the respondent of his proprietary rights, including the right to recover possession over the land in suit and under whose provisions the respondent has obtained the right to remain in possession of it. In these circumstances, we are of opinion that the executing <ORG> can refuse to execute the decree holding that it has become inexecutable on account of the change in law and its effect.

In the case of <CITATION> , AIR 1975 S.C.2295, an objection was taken under Section 47 of the Code to the effect that decree passed was incapable of execution after passing of U.P.Zamindari Abolition and Land Reforms Act, 1950 and the objection was allowed by <ORG> and when the matter was brought to this Court, the order was upheld holding that decree was incapable of execution by subsequent promulgation of legislation by <ORG>.

The expressions void and voidable have been subject matter of consideration before <ORG> times without number. In the case of <NAME> v. <NAME> and others [1967] 2 <ORG>, the dissolution of municipal council by the minister was challenged. Question had arisen before <ORG> as to whether a third party could challenge such a decision. It was held that if the decision was complete nullity, it could be challenged by anyone, anywhere. The Court observed at page 158 thus:-

The answer must depend essentially on whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the council. If the former, it must follow that the council is still in office and that, if any councillor, ratepayer or other person having a legitimate interest in the conduct of the council likes to take the point, they are entitled to ask the court to declare that the council is still the duly elected council with all the powers and duties conferred on it by the Municipal Ordinance.

In the case of In re McC. (A minor) [ 1985 ] 1 Appeal Cases 528, <ORG> followed the dictum of Lord <NAME> in the Marshalsea Case quoting a passage from the said judgment which was rendered in 1613 where it was laid down that where the whole proceeding is coram non judice which means void ab initio, the action will lie without any regard to the precept or process. The <ORG> laid down at page 536 thus:-

Consider two extremes of a very wide spectrum.

Jurisdiction meant one thing to Lord <NAME> in 1613 when he said in the Marshalsea Case (1613) 10 Co. Rep.68b, at p.76a:

when a court has jurisdiction of the cause, and, proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the court who executes the precept or process of the court, no action lies against them. But when the court has not jurisdiction of the cause, there the whole proceeding is coram non judice, and actions will lie against them without any regard of the precept or process.

<ORG> in that case acted without jurisdiction because, its jurisdiction being limited to members of the Kings household, it entertained a suit between two citizens neither of whom was a member of the Kings household. Arising out of those proceedings a party arrested by process of the Marshalsea could maintain an action for false imprisonment against, inter alios, the Marshal who directed the execution of the process. This is but an early and perhaps the most quoted example of the application of a principle illustrated by many later cases where the question whether a court or other tribunal of limited jurisdiction has acted without jurisdiction (coram non judice) can be determined by considering whether at the outset of the proceedings that court had jurisdiction to entertain the proceedings at all. So much is implicit in the Lord <NAME> phrase jurisdiction of the cause.

In another decision, in the case of Director of Public Prosecutions v. <NAME> [1959] Appeal Cases 83, <ORG> was considering validity of an order passed by Secretary of the State in appeal preferred against judgment of acquittal passed in a criminal case. <ORG> quashed the conviction on the ground that the aforesaid order of Secretary was null and void and while upholding the decision of <ORG>, the <ORG> observed at page 111 thus:-

This contention seems to me to raise the whole question of void or voidable: for if the original order was void, it would in law be a nullity. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because you cannot continue a nullity. The licence to Miss <NAME> would be a nullity. So would all the dealings with her property under Section 64 of the Act of 1913. None of the orders would be admissible in evidence. The Secretary of <ORG> would, I fancy, be liable in damages for all of the 10 years during which she was unlawfully detained, since it could all be said to flow from his negligent act; see section 16 of the Mental Treatment Act, 1930.

But if the original order was only voidable, then it would not be automatically void. Something would have to be done to avoid it. There would have to be an application to <ORG> for certiorari to quash it.

This question was examined by <ORG> in the case of R. v. Paddington Valuation Officer and another, Exparte Peachey Property Corporation, Ltd. [1965] 2 All England Law Reports 836 where the valuation list was challenged on the ground that the same was void altogether. On these facts, Lord <NAME>, M.R. laid down the law observing at page 841 thus:-

It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. In the present case the valuation list is not, and never has been, a nullity. At most the first respondent- acting within his jurisdiction-exercised that jurisdiction erroneously. That makes the list voidable and not void. It remains good until it is set aside.

<ORG> in their treatise Judicial Review of Administrative Action, Fifth Edition, paragraph 5-044, has summarised the concept of void and voidable as follows: Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record. <NAME> in his works Judicial Remedies in Public Law at page 131 has explained the expressions void and voidable as follows:-

A challenge to the validity of an act may be by direct action or by way of collateral or indirect challenge. A direct action is one where the principal purpose of the action is to establish the invalidity. This will usually be by way of an application for judicial review or by use of any statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in the course of some other proceedings, the purpose of which is not to establish invalidity but where questions of validity become relevant.

Thus the expressions void and voidable have been subject matter of consideration on innumerable occasions by courts. The expression void has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.

Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of <ORG> under Section 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate <ORG> is not only entitled but obliged under law to go into the questions of facts as well like trial court apart from questions of law. Powers of second appellate <ORG> under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of 1976 with effect from 1.2.1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and substituted by the aforesaid Central Act , have been further narrowed down as now in such an appeal only substantial question of law can be considered. The powers of this <ORG> under Article 136 of the Constitution of India, should not be exercised simply because substantial question of law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this <ORG>. Powers of revision under Section 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law arises, but such an error must suffer with the vice of error of jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure and likewise in similar statutes stand on entirely different footing and much wider as there the court can go into correctness, legality or propriety of the order and regularity of proceeding of inferior court. It does not mean that in each and every case the revisional court is obliged to consider question of facts as well like a first appellate <ORG>, but the court has discretion to consider the same in appropriate cases whenever it is found expedient and not in each and every case. Discretion, undoubtedly, means judicial discretion and not whim, caprice or fancy of a Judge. Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be reviewed.

The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing <ORG> can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the governing body of the <ORG> which was defendant without seeking leave of the <ORG> to continue the suit against the <ORG> upon whom the interest of the original defendant devolved and impleading it . Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law.

Now we proceed to consider the second question posed, but before doing so, for better appreciation of the point involved, it would be appropriate to refer to the provisions of Order 22 Rule 10 of the Code which runs thus:-

10. Procedure in case of assignment before final order in suit.(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the <ORG>, be continued by or against the person to or upon whom such interest has come or devolved.

(2) the attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

Plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of plaintiff has devolved. Likewise, in a case where interest of defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of <NAME> is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Any other party, in our view, may also seek leave as, for example, where plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in <ORG> in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested.

Thus, in view of the foregoing discussions, we have no difficulty in holding that <ORG> was not justified in allowing objection under Section 47 of the Code.

In the result, the appeal is allowed, impugned order passed by <ORG> is set aside and that by the executing <ORG> restored. In the circumstances of the case, we direct that the parties shall bear their own costs.

..<NAME>

[G.B.PATTANAIK ] ..J.

[B.N.AGRAWAL ] NEW DELHI DATED: July 24, 2001.


JUDGMENT <NAME>, J.

1. This is a defendant's appeal against the preliminary decree for partition in O. S. No. 24 of 1946 on the file of <ORG>, Masulipatam. The plaintiff is the paternal grandfather of the defendant. The defendant's father was <NAME> who died in the year 1921. They constituted members of a joint Hindu family and possessed of immovable properties set out in Schedules A and B annexed to the plaint and some movables. The plaintiff filed the above suit for partition of the family properties and for profits.

2. The defendant inter alia, pleaded that there was a partition of the family properties through the intervention of mediators and he wag put in possession of the properties that fell to his share. He relied upon a document em. bodying the arrangement between the parties. He also resisted the suit on the ground that the plaintiff was precluded from questioning the alleged partition on the doctrine oi part performance. As many as eleven issues were rained in the suit hut it is unnecessary to consider them in detail as the learned advocates confined their arguments before us only on two points. The learned Subordinate Judge held that the letter dated 15th February 1944 alleged to have been executed by the plaintiff was not admissible in evidence. He passed a preliminary decree effect-ing a division into two equal shares of the properties set out in the schedule to the plaint. The defendant preferred the above appeal.

3. The learned counsel for the appellant raised two contentions before us: (1) that the document dated 16th February 1944 is admissible in evidence as it only recorded a completed partition that was entered into between the parties through the intervention of the mediators; (2) that the defendant having been put in possession of the properties that fell to his share is entitled to defend the suit on the ground of part performance. The first point turns upon the construction of Ex. X-1. It may be pointed out that the contention now raised before us, namely, that document was only a record of a completed oral partition that was entered into between the parties, was neither raised in the plead, ings nor the question was argued before the learned Subordinate Judge. The only question that was addressed to him was that the document did not require registration as it con-templated a formal document being executed subsequently. The document gives in detail the nature of the disputes between the parties and also the settlement of the same through the intervention of the mediators. The properties allotted to the respective parties are minutely described. It provides for payment of money for equalization of the shares; the debts payable by the respective parties are detailed; the covenants of mutual indemnity are also embodied in the document, it was signed by the plaintiff and the mediators attested the same. In short, all the terms in regard to the partition of the properties between them are embodied in the docu-ment. The document contains the following recital:

"In the said settlement the mediators settled to give the hereunder Schedule A items 1 and 2 of property to me, the Schedule B mpntioned property to the minor, and Schedule C mentioned property to your daughter <NAME> on your behalf, towards the income, that may be got from the family property for the property given to you for pasupu kunkuma (pin money). Therefore, Schedule mentioned property fell to <NAME>. As regards the said properties, we have this day accordingly taken possession of tbe lands inclusive of the heaps of crops and the standing crops that fell to our respective shares. Hence we shall not raise disputes with each other."

These recitals clearly show that the document itself creates a right in prasenti in favour of the parties to the deed. The learned advocate relied upon the recital in the document, namely, that "We shall enter into a proper document before 15th March 1944 and get it registered at the expense of both the parties,"

in support of his argument that it does not require registration. The recent judgment reported in <CITATION> , to which one of us was a party, discusses tbe scope of such recitals in a document. It was held therein that as the document in question created an interest in immovable property the mere fact that a provision was inserted enabling the par-ties to get a proper partition deed written up on stamp paper and get the same registered did not take away the document from the mischief of 33. 17 and 49, Registration Act . A perusal of the present document leaves no doubt in our minds that it creates an interest in prasenti in tbe properties covered by the same and, therefore, it requires registration. It not having been registered, we agree with the learned Subordinate Judge that the document is not admissible in evidence.

4. The next question raised by the learned advocate raises an interesting point of law, namely, whether tbe doctrine of part performance embodied in Section 53A , T. P. Act applies to partition arrangements. Section 53-A , T. P. Act reads :

"Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and <ORG> transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though it requires to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, <ORG> transferor or any person claiming under him shall be debarred from enforcing against <ORG> transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other tban a right expressly provided by the terms of the contract."

"Transfer of property" is defined in Section 6 of the Act as "an act by which a living person conveys property, in present or in future to one or more other living persons, or to himself and one or more other living persons; and 'to transfer property' is to perform such act."

The necessary condition for the application of Section 58-A is that the transition must be a contract of transfer for consideration of any immovable property. The question, therefore, is whether a partition is a transfer for consideration within the meaning of the section. There is no direct decision on the interpretation of Section 63-A in regard to its applicability to a partition, hut the learned counsel relied upon the meaning attributed to the word "transfer" appearing in Section 53 of the Act and also in other Acts. There is a sharp cleavage of judicial opinion on the question, and a long catena of cases have been cited before us on either side. We shall consider them in some detail in their chronological order as the reasoning of the learned Judges certainly helps us to arrive at our conclusion.

5. The earliest case on the subject is the decision in <CITATION> , 25 Cal. 210 : (2 C. W. N. 91). In that case some of the co-owners possessing an undivided share in several properties took by an arrangement a specific property in lieu of their shares in all the properties. It was contended that the said arrangement was not valid as it was not effected by an instrument in writing. The learned Judges held that the transaction was not an exchange within the meaning of Section 118 , T. P. Act, but the completed transaction amounted to a partition which was not required by law to be effected by an instrument in writing. <ORG> says at p. 213:

"The completed transaction was the partition by which the parties held in severally the lands which had been before held in common. The law does not require a partition to be effected by an instrument in writing, and the right of partition being an incident of property held as this property was, the right is not, according to the second section, affected by any of the provisions of the Act."

At p. 215 the other learned Judge, <NAME>, says:

" Section 118 , In my opinion, is not applicable to cases where some of the co-owners possessing an undivided share in severa properties take by arrangement a specific property in lieu of their shares in all. Section 118 as its language shows, refers to cases where two persons owning two specific properties transfer or convey their respective ownership one to the other."

This decision was approved by <NAME>, in <NAME> v. <NAME>, 10 C. L. J. 503 : (3 I. C. 247). In <NAME> v Kotha-palli Ramacharlu, 10 M. L. W. 498 ; (A. I. R. (7) 1920 Mad. 20) the question was whether a partition deed was bad because it contravened the provisions of Section 63 , T. P. Act. <NAME> that the partition was voidable at the instance of the plaintiff upon the principle enunciated in Section 63 , T. P. Act. It may be noted that Sir <NAME> did not hold that Section 53 directly applied to a partition document but only invoked the principle underlying that section. The other learned Judge, <NAME>, was definitely of the opinion that a partition is not a transfer within the meaning of Section 53 , T. P. Act. At p. 506 he says :

"A partition is a division or agreement among co-owners to nuke a division of their joint property in severally; it effects a change in the mode of enjoyment of property but it is not an act of conveying property from one living parson to another. Exhibit II is not in terms a division of property, nor is it a transfer or release of property, but purports to be a relinquishment of the executant's incorporal right to have a partition."

At p. 508 he adds:

"I have already given reasons for thinking that partitions of coparcenary properties do not fall within the scope of Section 51 whioh deals with transfers of immovable property seeing that every member of a coparcenary has, before a partition takes place, a common interest in and possession of every item of ancestral property."

6. The nature of a partition came again to be considered by <ORG> in <CITATION> , 43 Cal. 504 : (A. I. R. (3) 1916 Cal. 645). This judgment is rather important as the law laid down by the learned Judges has been invoked by different Judges to support divergent views. It is also important as one of the learned Judges, <NAME> was a party to the decision in <NAME> case, 10 C. L. J. 503 : (3 I. C. 247) which affirmed tha principle laid down in <NAME>-nessa, v. <NAME>, 25 Cal. 210: (2 C. W. N. 91). It is unnecessary to state the facts. It would be enough if the relevant passage found at p. 509 is extracted :

"The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners; or, as has sometimes been said, partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer. Partition is thus the division made between several persons, of joint lands whioh belong to them as co-proprietors, so that each becomes the sole owner of the part which is allotted to him, the essence of partition is that the property is transformed into estates in severally and one of such estates is assigned to each of tbe former occupants for his sole use and as his sole property."

<NAME> and <NAME>, relying on tbe aforesaid passages held in <CITATION> , 44 M. L. J. 513: (A.I.R. (10) 1923 Mad. 577) that a partition is a transfer within the meaning of Section 53 , T. P. Act. They dissented from the view expressed by <NAME> in <CITATION> , 10 M. L. W. 498: (A I. R. (7) 1920 Mad. 20) but relied upon a part of the definition of 'partition' found in <CITATION> , 43 Cal. 504: (A. I. R. (3) 1916 Cal. 645), namely, "the surrender of a portion of a joint right in exchange for a similar right from co-sharers" in support of their conclusion. With great respect to the learned Judges, they have ignored the relevant portion of the statement of law contained in <CITATION> , 43 Cal. 504: (A. I. R. (3) 1916 Cal. 645), which, as we shall show later on, is relied upon by other Judges to come to a contrary conclusion. <NAME>, sitting as a single Judge, followed the observations in <NAME> v. <NAME>, 44 M. L. J. 513 : (A. I. R. (10) 1923 Mad. 577) in <CITATION> , A. I. R. (12) 1925 Mad. 492 : (85 I. C. 1054) and <NAME> v. <NAME>, 1926 M. W. N. 641: (97 I. C. 70). <NAME> in <NAME> v. <NAME>, A. I. R. (14) 1927 Mad. 830 : (103 I. C. 281) made some relevant observations in regard to the applicability of the theory of part-performance to a partition. It may be noticed that the decision was given before the enactment of Section 53-A , T. P. Act, which embodied the principle of part performance, limiting it only to a particular class of cases. The question whether a partition was a transfer or not was neither raised before him nor decided by the learned Judge. As it was then thought that the principle of part performance was of general application even in India, the learned Judge made general observations to the effect that though the deed of partition is inadmissible for want of registration, if there is later enjoyment of certain items, as separate property, such en-joymant amounts to partial performance of the contract of partition and its terms, and in such a case the partition can be given effect to by reason of the partial performance even though the terms of the partition cannot be proved. Obviously the restricted principle of part per-formance now given statutory recognition would not permit of such treatment of unregistered partition deeds though partially performed. In <NAME> v. <NAME>, 4 Luck. 243: (A.I. R. (16) 1929 Oudh 334), the construction of the word 'transfer' in Section 5 , Oudh Rent Act, fell to be decided. If a partition wag a transfer, it would be invalid undar the said Act. The learn-ed Judges at p. 248 defined the words 'transfer' with lucidity and they say;

"A 'transfer' in law must be deemed to imply a transfer by a person entitled to that property in favour of ft person having no title otherwise. Such a transaction relating to an occupancy tenure must, therefore), be deemed to be inoperative. Where, however, the holding is claimed by different helra of a deceased occupancy tenant or where the occupancy tenure forms part of the property of a joint family or of co-tenants and a division takes place among such persons, it cannot be held that the transaction amounts to a transfer from one having a right in favour of one having no right at all. In such a case all the persons must be deemed to have a right in the holding, and when the parties divide it among themselves their action must be considered to refer to the righta possessed by each party to whom the land has been allotted on division or partition."

In <NAME> v. Ganpat Maha-deo, 60 Bom. 34 : (A. I. R. (23) 1936 Bom. 10), a different note was struck. The question was whether partition was a transfer within the meaning of Section 53 , T. P. Act. The learned Judges preferred the view expressed in <CITATION> , 44 M. L. J. 513 : (A I. R. (10) 1923 Mad. 577) to that of <NAME> in <NAME> v. Kottiapalli Ramacharlu, 10 M. L. W. 498 : (A. I. R. (7) 1920 Mad. 20). They also understood the observations in <NAME> v. Safatulla Mia, 43 Cal. 504 : (A. I. R. (3) 1916 Cal. 645) in the same manner as the learned Judges in <CITATION> , 44 M. L. J. 513 : (A. I. R. (10) 1923 Mad. 577) understood. The relevant observations made at page 39 may be extracted : "It seems to us that the line of reasoning on which the view of <ORG> is based is sound, and that for purposes of Section 53 , T. P. Act 'partition' where the immoveable property has been partitioned among co-owners by metes and bounds, must be held to be 'transfer'. This does not appear to be an unreasonable or far-fetched interpretation; partition can in fact be adequately described as a mixture of the surrender and the conveyance of righta in property."

7. There is an exhaustive treatment of the question in two Bench decisions reported in& <NAME> v. <NAME>, 49 C. W. N. 769 : (A. I. R. (33) 1946 Cal. 129) and <NAME> v. <NAME>, 49 C. W. N. 779. The first of these decisions is a decision of <NAME> and Wright JJ. The question in that case was whether an allottee under a partition decree was a bona fide assignee for value within the meaning of Sub-clause (b) of Section 36(2) . Bengal Money-lenders Act. If the allottee was an assignee for value he would be protected and the decree was not liable to be re-opened at the instance of the judgment-debtor. At page 773, a clear and precise statement of the law is found:

"Although partition thus resembles an exchange, it is not an exchange. There is no conveyance but only transformation of the property. The estate in common is transformed, that is, it takes only another form, namely, two or more estates to be possessed and enjoyed in severally. By the partition a co-sharer gets a separate allotment by virtue of his antecedent title as co-sharer. There is thus no acquisition of property in another independent right. It is not a conveyance--it is not an exchange--and the separate allotment is not obtained by another independent title."

The other decision at page 779 of the same report also arose under the Bengal Money lenders Act. Another Bench of the same <ORG> accepted the definition of "partition" found in the earlier decision. At page 783 the learned Judges explained the scope of the observations in <CITATION> , 43 Cal. 604 : (A. I. R. (3) 1916 Cal. 645). After referring to the decision in <CITATION> , 44 M. L. J. 613 : (A. I. R. (10) 1923 Mad. 677) and <CITATION> , 60 Bom. 34 : (A. i. R. (23) 1936 Bom. 10), they say :

"The two last mentioned cases, however, proceeded on what was supposed to be the line of reasoning laid down by <NAME> in <NAME> v. <NAME>, 43 Cal. 504 : (A. I. B. (3) 1916 Cal. 645) to which we have referred. We do not, however, read the observations of <NAME> in that case, as indicating, contrary to the opinion expressed by him in <NAME> case, 10 C. L. J. 503 : (3 I. C. 247), that a partition involves a transfer of property. The gist of that observation is in the opening sentence, namely, 'The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners.' The expression 'joint right' in the following sentences refers to right of joint possession and enjoyment. The substance of partition, as we have said, is the severance of the joint possession and enjoyment. In the ultimate analysis, in our opinion, and we say so with great respect to the learned Judges who decided the Madras case of <NAME>, 44 M. L. J. 513 : (A. I. R. (10) 1923 Mad. 577) and the Bombay case of <NAME> 60 Bom. 34 : (A. I. R. (23) 1936 Bom. 10), there is no difference between the observations of <NAME> and those of <NAME> which we have quoted above."

With great respect we entirely agree with the said observations.

8. The learned counsel strongly relied upon the judgment of <NAME> and <NAME>. in <CITATION> . l. r. (1946) Mad: 138 : (A. i. R. (31) 1944 Mad. 381). In that case the learned Judges held that where the partition was fair and in accordance with the proper shares of the parties, it was not liable to be impeached under Section 53 , although it was entered into with a view to prevent attach-ment of the son's shares in execution of the decrees obtained against the father after the partition and was in that sense mala fide. In the course of the judgment, <NAME>, who delivered the judgment on behalf of the Bench, noticed the various cases construing the word 'transfer' in Section 63 , T. P. Act. We do not find any definite view expressed by the learned Judges in regard to the meaning of to be attri-buted to the word 'transfer'. Perhaps it was not necessary as in that case the learned Judges held that the partition was not a fraudulent transfer under Section 63 , T. P. Act. Indeed, at page 145, the learned Judge specifically states that there are obvious difficulties in dealing with a partition among members of a Hindu joint family as a fraudulent transfer coming within the section. Whatever doubt there may be, the learned Judge's view was made clear by his pronouncement in a later decision reported in <NAME> v. <NAME>, 1948-1 M. L. J. 150 : (A. I. R. (35) 1948 Mad. 505). The question was whether the allotment at a partition of jyeshtabhagam to the eldest brother involved a gift by the younger brother or brothers. After considering the case-law on the subject, the learned Judges stated as follows :

"The argument proceeds, in our opinion, on a misconception of the true nature of a partition arrangement under which each co-owner gets a specific property in lieu of his right in all the joint properties; that is to say, each co-sharer renounces his rights in the other common properties in consideration of his getting exclusive right to and possession of specific properties in-which the other co-owners renounce their rights. It is thus a renunciation of mutual rights and does not involve any transfer by one co-sharer of his interest in the properties to the others. That is why it has been held that a partition can be effected orally and without any registration instrument though it may affect immovable properties of the value of one hundred rupees or more."

9. The aforesaid discussion of the case-law on the subject brings out two divergent views: (1) Partition is a conversion of joint enjoyment into enjoyment in severalty. The crucial tests of a transfer by a person having a right in favour of a person having no right is not satisfied. There is no conveyance but a transformation of property, an allotment by virtue of his antecedent title as co-sharer. (2) It is a conveyance of a portion of joint right in exchange for a similar right from his co-aharer. In our view, the latter view of a partition as a conveyance of a joint right involves an introduction of fiction and is also contrary to the fundamental conception of partition.

10. In <NAME>, on Co-tenancy and Partition, the following passage from <NAME>, extracted at page 396, may usefully be reproduced here :

"Partition between coparceners neither amounts to, not requires, an actual conveyance. It is less than a grant. Its operation is not to pass the land by a fresh investure of the seisin, for parceners are supposed to be already in possession of the whole lands. Partition, therefore, makes no degree. It only adjusts the different rights of the parties to the possession; each does not take her allotment by purchase; but is seized of it by descent from the common ancestor as she was of her undivided share before partition."

Partition, therefore, is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title and therefore, no conveyance is involved in the process as a con-ferment of a new title ia nod necessary. We are glad to be able to arrive at this conclusion as otherwise we would be introducing complications and anomalies in the working of Section 53A , T. P. Act. One member of the family who was put in possession of his share would be liable to resist the suit for partition and another who did not take possession of his share would have to submit to a decree for partition In a suit for a general partition there would he a decree for partition in regard to same properties and some parties, leaving out those sharers who secured possession of the properties under an invalid partition. It may be that a decree would have to be pass-ed even in their favour in regard to properties not divided. The working out of equities and equalization of sharers would involve insoluble complications. We, therefore, hold that a partition is not a transfer within the meaning of Section 53A , T. P. Act, and therefore, the defendant could not invoke the doctrine to support his case.

11. In the result the appeal is dismissed with costs.


<NAME>, J.

1. This is an application for setting aside the award of an umpire. The petitioner took, out an Insurance Policy from <ORG> in respect of an International Harvester or Motor Tractor Crane. The Policy was issued on June 4, 1959. On December 19, 1959, the petitioner informed <ORG> that the <ORG> had met with an accident. The claim forms were sent by <ORG> and were submitted by the petitioner duly filled in There were disputes and differences between the parties as to the quantum of loss suffered by the petitioner. The Insurance policy contained an arbitration clause. In terms of the arbitration agreement, the petitioner appointed its arbitrator. The respondent failed to appoint its arbitrator within time. An application was made to this Court and ultimately, through the intervention of <ORG>, another arbitrator was appointed. The two arbitrators thereupon selected their umpire. The present application is directed against the umpire's award. The umpire, it appears, has awarded:

(a) Rs. 12,200/- on account of costs of repairs;

(b) Rs. 16,500/- in respect of the claim made in paragraph 17 of the Statement of Claim; and (c) Rs. 11,300/- for costs of and incidental to the reference, 2. The award of Rs. 16,500/- arises out of a claim for hiring cranes to replace the damaged crane while the sanction for repairs was being withheld by the insurer. 3. Mr. <NAME>, learned counsel for the petitioner, has urged before me that this award of Rs. 16,500/- should never have been made by the umpire. Firstly, this is an award with regard to a dispute which never arose before reference to arbitration, and, secondly under the policy of insurance (Section I), the Company had no liability for consequential damages.

4. Learned counsel for the respondent does not dispute that the claim arising out of hiring charges was made only in the Statement of Claim submitted to the arbitrator appointed by the insured, In other words, the dispute with respect to this claim did not arise before the single arbitrator entered into the reference. The same Statement of Claim, was also filed before the two arbitrators and the umpire subsequently. Learned counsel's main contention is that it is no longer open to the petitioner to object to the award of Rs. 16,500/- inasmuch as the petitioner allowed the claim to be raised before the arbitrators and the umpire without objection and participated in the adjudication of this dispute by the arbitrators and the umpire (vide paragraph 20 of the affidavit-in-opposition of <NAME> affirmed on the 20th April 1964).

5. My attention has been invited to the relevant documents in this connection. I find that the claim relating to hiring charges has been made in paragraphs 15, 16, 17 and 19 of the Statement of Claim. These paragraphs have been dealt with in paragraphs 9 and 13 of the counter-statement but no objection as to the jurisdiction, of the arbitrators or the umpire to entertain this claim has been taken.

6. Then on the 22nd July, 1961, issues were raised before the arbitrators and the umpire who were all sitting together and were settled. From paragraph 14 of the petition I find that the second issue was as follows: "Is the claimant entitled to claim the sum of Rs. 40,903.60 nP. as pleaded in paragraph 17 of the statement of claim?" There was no protest on behalf of the petitioner either as to the framing of Issue No. 2 or the determination thereof. Thereafter, I am told, evidence was led on behalf of both the parties and recorded by the arbitrators and the umpire. It was only on the 5th March, 1963, when arguments were being heard that learned counsel appearing for <ORG> for the first time submitted to the arbitrators and the umpire that the claim concerning hiring charges was not covered by the insurance policy. In fact this submission of learned counsel for the petitioner cannot be said to be a protest against the jurisdiction, but in fact was a defence on merits.

7. The position therefore is that the petitioner at no material time objected to the jurisdiction of the arbitrators or the umpire to investigate the claim made in paragraph 17 of the Statement of Claim. There was no application to this Court either under Section 33 of the Arbitration Act as to whether the arbitrators or the umpire had jurisdiction to go into the matter. The question that arises for my consideration, therefore, is whether the petitioner should be allowed to agitate this matter on this application now that the award has been made.

8. <ORG> observed in <NAME> v. Mt. Bibi Bechunnissa, 3 Ind App 209 at p. 220 (PC):

"......that the appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceeding to make their award, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself; and that it is too late for him, after the award has been made, and on the application to file the award, to insist on his objection to the filing of the award,"

9. In <NAME> v. <ORG>, 1923 AC 619, the owner of a timber estate sold the whole of the timber thereon to a company in considertaion to fully paid-up shares in the company. Subsequently he insured the timber against fire by policies effected in his own name with several insurance companies. The greater part of the timber was destroyed by fire. The owner sued the insurance company to recover the loss. But the actions were stayed and the matter was referred to arbitration in pursuance of the conditions contained in the policies. The claimant was the sole share-holder in the company and was also to a large extent a creditor of the company. The arbitrator held that the claimant had no insurable interest in the goods insured and disallowed the claim. <ORG> held in this case (1) that the claimant had not either as share-holder or creditor any insurable interest in the goods and (2) that the claimant having allowed the point of insurable interest to be raised before the arbitrator without objection, it was not open to him to call in question the authority of the arbitrator to entertain it. In <NAME> and Co. v. <NAME>, AIR 1920 PC 123, a question arose as to defective appointment of a sole arbitrator. <ORG> was of opinion that the defect (absence of notice under Section 9(b) ) would have been fatal to the authority of the person appointed as sole arbitrator but for the fact that any objection on this head was waived by the party concerned, namely, the appellants. They had rested their case on their contentions as to the invalidity of any arbitration in the place in which it was held and they could not according to their Lordships of <ORG> be permitted to rely on a defect in procedure which could have been remedied at once if they had raised the point.

10. <CITATION> , , the arbitration clause in a contract for execution of certain work by A with <ORG> prescribed that except as otherwise provided in the contract, all questions and disputes arising out of or relating to the contract would be referred to the arbitration of the Superintending Engineer of the Circle for the time being. Disputes arose between the parties and the <ORG> appointed one M as an arbitrator to adjudicate on the claim made by it against A and informed A about the "appointment. Both the parties knew that M was not competent to act as arbitrator according to the qualification laid down by the arbitration clause. A not only submitted to the arbitration of M. on the <ORG>'s claim but also put forward a counter-claim against the <ORG> for adjudication by the same arbitrator; he took part in the proceedings from the beginning to the end; he agreed to extensions of time for filing the award; and when the award went against him sought to set aside the award on the ground, that M was not competent to act as arbitrator. <ORG> (<ORG> and Lahiri, J.) has held that the rule of estoppel binds A and prevents him from contending that M was not qualified under the terms of the agreement to arbitrate in the dispute.

11. All the cases cited above, establish the principle that if a party allowed 'an arbitrator to proceed with the reference without objecting to his jurisdiction or competence, it would not be subsequently heard to say that the award should be set aside on the ground that the arbitrator was not competent to decide the dispute in question. In the instant case, as I have already pointed out, no objection was raised to the jurisdiction of the arbitrators and the umpire; and it is now being urged that the award with respect to hiring charges should not be allowed to stand. This contention of the petitioner, therefore, has to be overruled on grounds of waiver or estoppel or acquiescence or absence of protest or objection.

12. Secondly, whether or not the claim based on the hiring of a <NAME> comes within the scope of the Insurance Policy is a matter of construction of the Policy itself which, to my mind, is within the province of the arbitrators and the umpire to decide. Reference may in this Connection be made to the case of <NAME> v. <NAME>, reported in (1873) 8 Ch App 473. Here the lease of a mine contained an agreement to refer disputes between the lessors and three lessees to arbitrators or their umpire, pursuant to the provisions of the Common Law Procedure Act), 1854. The lessees sank a shaft, and through the shaft drew minerals from an adjoining mine. The lessors filed a bill to restrain the lessees from so doing. Two of the three lessees applied for an order to Stay proceedings in the suit, and that the matter might be referred to arbitration, It was held, inter alia, that the <ORG> would not decide but would leave it to the arbitrators to decide 'whether the matters in dispute between the parties were within the agreement to refer.

13. In the present application also, it seems to me that, it was for the arbitrators or their umpire to decide upon construction of the terms of the Policy of Insurance' whether the claim made in paragraph 7 of the Statement of Claim tame within the scope of the Policy. If the arbitrators or their umpire have gone into the question and determined the same in a particular way, it is not open to this Court to disturb or interfere with that determination except, on the facts herein, in the case of an error of law apparent on the face of the record. <ORG> in <CITATION> ., 50 Ind App. 324 at p. 331: (AIR 1923 FC 65 at p. 69) has explained that an error in law on the face of the award means, that you can find in the award or a document actually in-corporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. In the present case, no such problem has arisen. In the body of the umpire's award, for instance, there is no statement or indication as to how the relevant terms in the Policy of Insurance have been construed by him. If such a statement or indication was there, different considerations might have arisen.

14. Mr. <NAME>, learned counsel for the petitioner, in his reply to the point of absence of objection contended that, this was not a case where the arbitrators or their umpire proceeded with the reference without any protest whatsoever. Learned counsel relies on the minutes of the 5th March, 1963, to contend that counsel for <ORG> pointed out to the arbitrators and their umpire that the claim in paragraph 17 of the statement of claim did not arise out of the policy of insurance. As I have already said this is not an objection to jurisdiction, But assuming that, it is such an objection it was made practically at the last stage of the proceedings when evidence had already been gone into and costs were incurred to a considerable extent for purposes of determination of Issue No. 2 raised in the proceedings. If objection is to be taken, in my view, it must be taken at the earliest possible opportunity or at any rate, at an early stage of the proceedings. Reference may in this connection be made to <ORG>, 17th Edition, at pp. 174 and 352. Failure to object at an early stage acts as an estoppel. It was observed by <NAME>, J. in <CITATION> 36 Cal 193 at p. 208:

"......It is only when a Judge or Court has no jurisdiction over the subject-matter of the proceeding or action in which an order is made or a judgment is rendered, that such order or judgment is wholly void, and that the maxim applies that consent cannot give jurisdiction in all other cases, this objection to the exercise of the jurisdiction may be waived, and is waved when not taken at the time the exercise of jurisdiction is first claimed......"

15. Mr. <NAME> has also argued before me that in this case there, was inherent lack of jurisdiction of the arbitrators or their umpire regarding the claim for hiring charges and such, consent or absence of protest or objection does not help the respondent at all. It is well settled that whether the arbitrator acts within his jurisdiction or not depends solely upon the clause of reference, (vide 50 Ind App 324 at p. 332 : (AIR 1923 PC 66 at. p. 69). In the instant case the arbitration clause appears to be fairly wide. It covers 'all differences' arising out of this policy. I am therefore unable to accept the contention of learned counsel for the petitioner that so far as Issue No. 2 was concerned there was inherent lack of jurisdiction of the arbitrators or their umpire.

16. Learned counsel for the respondent has relied, on the case of Player v. <ORG>, reported in (1930) 38 Iloyds List LR at p. 62 for the proposition that the umpire in this case has correctly awarded damages to respect of hiring charges of the insured. Having regard to the view I have taken in this matter, as to the other points involved in this application I do not express any opinion on this question.

17. For reasons aforesaid this application is dismissed with costs.


ORDER

1. This is a revision against the order of the subordinate judge dated 19-8-1974.

2. The facts are these. The plaintiff claims to be a member of <ORG>. He has paid them Rupees 12,000/- for allotment of a plot to him. .

3. The society has 126 plots in number. They have to be allotted to 126 members. The society issued a circular to some members of the society and they were informed that plots will be allotted to them by draw of lots on January 4, 1.974. Apparently the plaintiff did not receive any such notice from the society. Therefore he said that the society has no right to issue such a circular or to allot the plots by draw of lots. He came to know of the circular before the institution of the suit and protested that this manner of allotment of plots to some members at one time and to others later is illegal.

4. The plaintiff therefore brought a suit in January 1974 making these allegations against the society and its secretary. He called their action as illegal. He sought a permanent injunction restraining them from allotting the plots of the society in an 'illegal and arbitrary manner.

5. The society opposed the suit. It was said that <ORG> had no jurisdiction to try the suit, The trial Judge framed a preliminary issue:

Whether the court has no jurisdiction to try the suit?

The finding of the subordinate Judge on this issue was that the suit was maintainable and the court has jurisdiction to try the suit. This was her decision. Against this order the society has come in revision.

6. Section 60 of Delhi Co-operative Societies Act 1972 (Act 35 of 1972) in so far as it is material reads:

"(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society arises-

(a) among members, past members and persons claiming through members, past members and deceased members, or

(b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society or liquidator, past or present, or

(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives o, any deceased officer, deceased agent, or deceased employee of the society, or

(d) between the society and any other co-operative society, between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society, such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.

(2) For the purposes of sub-section (1), the following shall be deemed to be disputes touching the constitution, management or the business of a co-operative society, namely: -

(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;

(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;

(c) any dispute arising in connection with the election of any officer of a society other than a society mentioned in sub-section (1) of Section 31 .

(3) If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court."

7. This section provides that certain disputes such as are mentioned in the section shall be referred to the Registrar for his decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.

8. In order to decide whether a suit is barred by reason of Section 60 it is necessary to determine at the very outset two things. Firstly, it has to be seen who are the parties to the dispute. Secondly the nature of the dispute must be ascertained. Section 60 (1) provides that if the dispute is amongst the classes of persons as are mentioned in (a) to (d) it will be decided by the Registrar. The plaintiff claims to be a member of the society, He has brought a suit against the society. Therefore, his case would fall under Section 60 (1) (b).

9. The second question is whether the dispute raised by the plaintiff in the plaint is a dispute such as is outside the jurisdiction of the civil Courts. The relevant words used in the section are any dispute touching the constitution, management or the business of a co-operative society other than a dispute Regarding disciplinary action taken by the society or by its committee against the paid employees of the society."

10. The sole question for determination is whether the dispute raised by the plaintiff is one touching the constitution, management or the business of the society. What is a dispute touching the constitution, management or business of a co-operative society is defined in subsection (2) of Section 60 .

11. If it is a dispute touching the constitution, management or the business of a co-operative society the dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute."

12. Sub-section (3) says that: "If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution, management or business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court."

13. The word "referred" is important. But before a matter is referred two conditions have to be satisfied:

(1) That the dispute must be one touching the constitution, management or business of a society other than a dispute regarding disciplinary action taken by the society against a paid servant; and (2) That the dispute must be one involving parties who are among those mentioned in the section: ( <CITATION> , .

14. It is not disputed that the plaintiff's suit does not fall within any of the three categories mentioned in clauses (a) to (c) of sub-section (2).

15. The counsel for the petitioner submits that sub-section (2) is merely illustrative and in order to determine whether the dispute can be entertained by <ORG> we have only to look to the opening words of the section, namely, "touching the constitution, management or the business of a co-operative society" where no such limitation has been placed. In other words his submission is that the definition given in sub-section (2) is not exhaustive. I do not agree. In my opinion the definition given in sub-section (2) is not illustrative. It is exhaustive.

16. The legislature has used the words "the following shall be deemed to be disputes touching the constitution, management or the business of a co-operative society." I underline and emphasise the words "shall be deemed to be disputes". The legislature has left us in no doubt that these are the only disputes which can be said to be touching the constitution, management or the business of a co-operative society. The legislature has not used the word 'also'. Nor does the legislature say, "shall be deemed to include". Without reading these two words 'also' or 'include' into the section the counsel for the society cannot build an acceptable argument.

17. It is a settled principle of statutory construction that no words can be added to the section. The section must be construed according to its plain meaning without any addition or substitution. To me it appears that the generality of the words 'touching the constitution, management or the business' has been severely cut down by the legislature by setting out in sub-section (2) the nature of the disputes, which will fall within these three expressions. The width and the ambit of these three expressions is now limited by what the legislature has said in sub-section (2). 1 cannot therefore, accept the reasoning that the words 'touching the constitution, management or the business' are without limitation.

18. It is well settled that a clause which takes away the jurisdiction of civil court must be strictly construed. ( <CITATION> , ). Every presumption should be made in favor of the jurisdiction of a civil court. In other words, the exclusion of jurisdiction of civil courts is not to be readily inferred, such exclusion must be either explicitly expressed or clearly implied. ( <CITATION> and Co., and ( <CITATION> , ). The subject's recourse to the courts for the determination of his rights is not to be excluded except by clear words.

19. Applying this rule of construction it must be held that the legislature has ousted the jurisdiction of <ORG> only in respect of disputes, which are specified in sub-section (2) and to which the parties must be such as are mentioned in sub-section (1).

20. For these reasons I endorse the decision of the trial Judge, I dismiss the revision. There will however be no order as to costs

21. Revision dismissed.