Judgement

B. K. MUKHERJEA J.- This appeal, which has come before us on special leave, is directed against a judgment of an Appellate Bench of the Calcutta High Court, dated 16-5-1951, by which the learned Judges dismissed an appeal taken against an order, made by a simple Judge on the Original Side of that Court, under Cl. 13 of the Letters Patent, on the preliminary ground that the appeal was not competent in law.

2. There is no dispute about the material facts of the case which lie within a short compass. On 7-8-1947 a suit was filed by the respondent Kumar Rupendra Deb Raikot in the Court of the Subordinate Judge at Jalpaiguri in West Bengal, being Title Suit No. 40 of 1947,-for recovery of possession of a large estate known as Baikunthapur Raj situated in that district, on the allegation that he being the eldest son of late Prosanna Deb Rajkot the last holder of the estate, became entitled to the properties on the death of his father under a custom of the family which excludes all females from inheritance and follows the rule of lineal primogeniture in matters of succession. Prosanna died in December 1946 and Asrumati Debi, the appellant before us, is admittedly his widow. There was no son born to her and her only child is a daughter named Prativa. According to the plaintiff respondent, his mother Renchi Debi, who is a Lepcha by birth was another lawfully wedded wife of Prosnna and was married to the latter in what is known as the Candharba form. Prosanna had three sons by this wife the plaintiff being the eldest. Asrumati it is alleged, took possession of the bulk of the properties comprise in the estate on the death of her husband, although she had no legal right to the same and it was to evict her from these properties that this suit was brought. Besides Asrumati, the plaintiff also impleaded three other agnatic relations of the deceased (who are defendants 2 to 4) and also his own two younger brothers as defendants to the suit.

3. Asrumati filed her written statement on 19-1-1948, and the main defence put forward by her was that there was no legal marriage between her husband and the plaintiff s mother, the latter being only one of the several mistresses of her husband. She denied that therefore was any custom in the family under which females were excluded from inheritance. Defendants 2 to 4 also filed written statements, challenging the legitimacy of the plaintiff and his claim to succession, and put forward their own rights as heirs under the customary law obtaining in the family.

4. On 30-4-1948 the plaintiff presented an application in the Original Side of the High Court of Calcutta under Cl. 13 of the Letters Patent, praying for transfer of the suit filed in the Jalpaiguri Court to the High Court to be tried in its Extra-ordinary Original Civil Jurisdiction. This application was heard by Banerjee, J., sitting singly and by his order dated 25-4-1949, the learned judge allowed the application, substantially on the ground that having regard to the atmosphere of prejudice that was created in the locality by the supporters of the defendant, who wielded a considerable influence in the district, the plaintiff might have a legitimate apprehension that he would not get fair trial in the District Court.

5. Against this decision defendant I took an appeal to the Appellate Bench of the High Court of C.lcutta and the learned Judges (Trevor Harries C. J. and Das J.) dismissed the appeal on the ground that the order appealed against was not a judgment within the meaning of Cl, 15 of the Letters Patent. It is the propriety of this decision that has been challenged before us in this appeal.

6. The High Court of Calcutta in holding the appeal before it to be incompetent based its decision entirely upon an earlier pronouncement of a Division Bench of the same Court, where it was held by Mookerjee, A.C.J., sitting with Fletcher, J., that an order for transfer of a suit made under Cl. 13 of the Letters Patent was not a judgment within