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1890 Supreme(SC) 10
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACNAGHTEN, SIR BARNES PEACOCK, AND SIR RICHARD COUCH.
MUSSUMMAT DURGA CHOUDHRAIN - Appellant
Versus
JAWAHIR SINGH CHOUDHRI - Respondents
On Appeal from the Court of the Judicial Commissioner, Central Provinces.
Decided On : Mar. 11; Apr.
Solicitors for Appellant:Watkins & Lattey. Solicitors for Respondent: T. L. Wilson & Co.
Important Points
Subject
Civil Law - Civil Procedure
Act Referred
Headnote
(B) Finding of First Appellate Court - Finality of factual findings - Where no error or defect in procedure exists, the finding of the first appellate court on a question of fact is final, provided the court had before it evidence proper for its consideration in support of the finding.
Facts of the case:
A suit was brought to establish rights to certain villages based on the claim that a partition of family property had occurred in 1857. The trial court found in favor of the plaintiff, concluding that a partition had taken place. This was reversed by the first appellate court, which held that the plaintiff failed to prove the partition, placing higher weight on official settlement records than on oral evidence and an unsigned petition. The second appellate court affirmed the reversal. The appellant argued that the first appellate court had misapprehended the evidence and misconceived the case, which should be treated as a substantial error or defect in procedure.
Findings of Court:
The court found that the second appellate court had no jurisdiction to review the merits of the case. The grounds for a second appeal are strictly limited to those specified in the statute, and the court cannot enlarge those grounds.
Issues: Whether a misapprehension of evidence or an erroneous finding of fact by a lower appellate court constitutes a "substantial error or defect in procedure" under Section 584 of the Civil Procedure Code, thereby permitting a second appeal.
Ratio Decidendi: The court held that an erroneous finding of fact is a different thing from an error or defect in procedure. The statutory grounds for a second appeal are exhaustive; therefore, no jurisdiction exists to entertain a second appeal on the ground of a factual error, however gross it may seem. If the first appellate court had proper evidence for its consideration, its finding on a question of fact is final.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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civil procedure
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appeals
- second appeal
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appeals
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civil procedure
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family law
- partition
Judgement
Appeal from a decree of the Judicial Commissioner (July 30, 1886) passed on second appeal, and affirming a decree of the Commissioner of the Nurbudda Division (May 1, 1886), which had reversed a decree of the extra Assistant Commissioner of Narsinghpur (Sept. 28, 1885).
The facts are stated in the judgment of their Lordships.
Cowie, Q.C., and Mayne, for the Appellant, contended that it was open to the Judicial Commissioner to consider the question of partition on its merits, and that he ought to have decided it in favour of the Appellant. [They referred to the Civil Procedure Code, sect. 584 Lachman Singh v. Mussummat Puna (L. R. 16 Ind. Ap. 125.) ; Nivath Singh v. Bhikki Singh (Ind. L. R. 7 All. 649, 652.); Futtehma
Law. Rep. 17 Ind. App. 122 ( 1889- 1890) Mussummat Durga C houdhrain V. Jawahir Singh C houdhri
42
Begum v. Mohamed Ausur (Ind. L. R. 9 Calc. 309.); Assanullah v. Hafiz Mahomed Ali (Ind L. R. 10 Calc. 932.). [Sir R. Couch referred to Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani (L. R. 14 Ind. Ap. 101.).]
Doyne, and C, W. Arathoon, for the Respondents, were not heard.
The judgment of their Lordships was delivered by
LORD MACNAGHTEN —
This is an appeal against a decree of the Judicial Commissioner of the Central Provinces, passed on second appeal, affirming a decree of the Commissioner of the Nurbudda Division, which had reversed a decree of the Assistant Commissioner of Narsinghpur.
The appeal comes before this Board with the usual certificate from the Judicial Commissioner, to the effect that it involves a substantial question of law.
The Judicial Commissioner on second appeal had no jurisdiction to rehear the case on the merits. The only grounds on which a second appeal can be brought are stated in sect. 584 of the Civil Procedure Code, Act XIV. of 1882. They are these—
" (a.) The decision being contrary to some specified law, or usage having the force of law.
" (b.) The decision having failed to determine some material issue of law, or usage having the force of law.
" (c.) A substantial error or defect in the procedure as prescribed
by this Code or any other law, which may possibly have produced error or defect in the decision of the
case upon the merits."
In sub-sect, (a) the word " specified " obviously means specified in the memorandum or grounds of appeal.
At the outset of the argument their Lordships were informed that, according to Indian authorities, the appeal might be supported under sub-sect (c) if it did not fall within sub-sect, (a); but they were told that it was impossible to state the point intended to be raised without going into the facts of the case.
The facts are few and simple. The Appellant, who was Plaintiff in the Lower Court, is the widow of the younger son of one Beni Singh, who died in 1878. The suit was brought to establish her right to certain villages which had been in her husbands possession and registered in his name, but which after his death in 1883 were registered in the name of his elder brother, the Respondent Jawahir Singh.
The Appellants right as heiress to her husband depended upon her establishing that a partition of the family property had taken place in the year 1857.
It was not disputed that Beni Singh did make a division of the family property in 1857 between himself and his two sons. The Appellant contended that this division was an absolute partition. The Respondent maintained that it was merely a convenient arrangement for the purposes of management.
In support of the Appellants case witnesses were produced who deposed to conversations alleged to
Law. Rep. 17 Ind. App. 122 ( 1889- 1890) Mussummat Durga C houdhrain V. Jawahir Singh C houdhri
43
have taken place at the time of the division of the property. A copy of a petition was put in, purporting to proceed from Beni Singh, but not signed by him, which was filed in the Revenue Court in October, 1864, and which contained this sentence—" It is now five or six years since I divided the villages betw
