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1921 Supreme(SC) 13
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, LORD DUNEDIN, LORD SHAW, SIR JOHN EDGE, AND MR. AMEER ALI.
BHAIDAS SHIVDAS - Appellant
Versus
BAI GULAB - Respondents
On appeal from the High Court at Bombay.
Decided On : Feb. 14. 1921.
Solicitor for appellant: E. Dalgado.
Solicitors for respondents: Hughes & Sons.
Section 4 of the Code of Civil Procedure, 1908, preserves special procedures under local laws or Letters Patent unless the Code contains a specific provision to the contrary. General provisions for resolving tied judicial opinions do not override specific rules where the senior judge's opinion prevails.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 4 and 98 - Letters Patent - Section 36 - Conflict between general procedural code and special local law - Procedure in case of difference of opinion between two judges in a division bench - Section 4 of the Code provides that in the absence of any specific provision to the contrary, nothing in the Code shall limit or affect any special or local law or any special form of procedure prescribed by any other law - Section 98 of the Code, which provides for reference to other judges in case of difference of opinion, does not contain a specific provision to the contrary that would override the special procedure under the Letters Patent.
(B) Letters Patent - Section 36 - Where two judges are equally divided in opinion, the opinion of the senior judge shall prevail - This special procedure is preserved by Section 4 of the Code of Civil Procedure and cannot be modified by the general provisions of Section 98 of the Code.
Facts of the case:
A suit for declaration regarding the construction of a will was instituted. The trial court dismissed the application. On appeal, the two judges of the division bench differed in their opinions. The matter was subsequently referred to two other judges under Section 98 of the Code of Civil Procedure, 1908, who decided the matter against the plaintiff. The plaintiff challenged this procedure, contending that under Section 36 of the Letters Patent, the opinion of the senior judge should have prevailed.
Findings of Court:
The order referring the case to other judges was ultra vires and void. The plaintiff was technically entitled to a decree in accordance with the judgment of the senior judge (the Chief Justice) as the special procedure under the Letters Patent was not overridden by the Code of Civil Procedure.
Issues: Whether the procedure prescribed under Section 36 of the Letters Patent, which mandates that the senior judge's opinion prevails in the event of an equal division, is modified or overridden by the general procedure of reference to other judges under Section 98 of the Code of Civil Procedure, 1908.
Ratio Decidendi: Section 4 of the Code of Civil Procedure preserves special forms of procedure prescribed by other laws unless there is a specific provision to the contrary within the Code. Section 98 of the Code creates a distinct method of procedure but does not contain a specific provision to the contrary that would displace the special procedure established by Section 36 of the Letters Patent.
Result: Decree of the appellate Court set aside and the case remitted to the High Court to be dealt with according to law.
Legal Category Hierarchy
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practice and procedure
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appellate procedure
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conflict of judicial opinion
- senior judge's rule
- reference to additional judges
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conflict of judicial opinion
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statutory interpretation
- conflict between general and special law
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appellate procedure
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succession law
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wills
- construction of wills
-
wills
Judgement
Appeal (No. 123 of 1919) from a judgment and decree of the High Court (March 23, 1917) affirming a decree of the High Court in its original civil jurisdiction.
The suit was instituted in the High Court by the appellant who prayed for declarations as to the effect of a will.
The trial judge Macleod J. made a decree adverse to the plaintiff. Upon an appeal to the appellate jurisdiction of the Court the learned judges (Scott C.J. and Heaton J.) disagreed. The question upon which the learned judges disagreed was referred under s. 98, sub-s. 2, of the Code of Civil Procedure, 1908, and was heard by Batchelor and Shah JJ. who, agreeing with Heaton and Macleod JJ., decided the question referred adversely to the plaintiff. The present appellant had raised no objection to the procedure followed. An appeal to the Judicial Committee raising the whole question at issue between the parties came on for hearing in the ordinary course.
1921. Feb. 11. De Gruyther K.C. and Parikh for the appellant. Under s. 36 of the Letters Patent the appellant was entitled to a decision in her favour upon the Chief Justice and Heaton J. disagreeing. That section is not affected by s. 98 of the Code of Civil Procedure, but is preserved by s. 4 of the Code Roop Laul v. Lakshmi Doss (( 1905) I. L. R. 29 M. 1, 24.) ; Lachman Singh v. Lagan Singh (( 1903) I. L. R. 26 A. 10.) ; Nundeepit Mahta v. Urquhart (( 1879) 13 Suth. W. R. 209.); Surajinal v. Horniman (( 1917) Bom. Law Reporter, 185, 216.) ; see also Sabitri v. Savi . (( 1921) L. R. 48 I. A. 76.)
Sir Erle Richards K.C. and E. B. Raikes for the respondent. The procedure under s. 36 of the Letters Patent is modified by s. 98 of the Code. The latter section does not provide for a rehearing of the appeal, but for a reference upon the particular question upon which the judges differ. That procedure is consistent with the Letters Patent, the determination of the appeal remaining in the division bench which originally heard the appeal. Sect. 44 of the Letters Patent makes their provisions subject to the legislative powers of the Governor-General in Council. The appellant by not objecting to or appealing against the reference waived the right to object.
The judgment of their Lordships was delivered by
LORD BUCKMASTER. The real question involved in the dispute giving rise to this appeal was a question as to the construction of the will of one Nathoo Moolji, who died on December 8, 1894, affecting the respective estates and interests that were taken by the testators widow and his two daughters. One of the daughters died in the lifetime of the widow, and her heir, who is the present appellant, instituted, on the widows death, in the High Court of Judicature in Bombay, ordinary original civil jurisdiction, the proceedings out of which this appeal has arisen, claiming that, according to the true construction of the will, he was entitled to a vested one-half share in the testators property.
The learned judge before whom the suit was first heard dismissed the application and held that there was an intestacy after the widows death.
An appeal was taken from that judgment and heard before Scott C.J. and Heaton J. They differed in their opinion. Scott C.J. thought that the plaintiff was entitled to the relief he claimed ; Heaton J., on the other hand, agreed with the judge who had first tried the suit. The course then was taken to refer the matter to two other judges, Batchelor and Shah JJ., who also decided adversely to the plaintiffs contention.
The plaintiff has now brought an appeal before His Majesty in Council, and the first point that he has raised is this that the order made referring the case to the decision of Batchelor and Shah JJ. was ultra vires and void; that there was no jurisdiction in these two judges to entertain the dispute ; and that he is entitled, as of right, to a decree in accordance with the opinion of Scott C.J., the senior of the two judges before whom the appeal was first heard.
That conte
