Manjit Singh and anr. Vs. Kidar Nath and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 4 could not acquire better right than her predecessor.adarsh kumar goel, j.1. respondent kidar nath filed a suit for declaration that he had preferential right to purchase rights of defendant no. 4 smt. leela wanti, widow of jagan nath, in the suit shop by virtue of family settlement incorporated in the award and decree dated 29.8.1953 and sale of the said shop by defendant no. 4 in favour of defendant nos. 1 to 3 was void being against the family settlement. the plaintiff claimed right to recover the said shop on payment of rs. 40,000/- which was the sale consideration of the said property in favour of respondent nos. 1 to 3.2. the suit property alongwith other property was jointly owned by the plaintiff and jagan nath, husband of defendant no. 4 who were brothers. the said property was partitioned by way of family settlement which was finally recorded in a decree of court dated 29.8.1953. one of the terms of the award was that if either party wanted to sell his share, the co-sharers will have preferential right to purchase the same at market price and intending vendor shall serve one month's notice to the other co-sharer before the sale. in view of this stipulation, case of the plaintiff was that defendant no. 4 could not sell the suit property without notice to the plaintiffs, who had preferential right to purchase the same at market price. since defendant no. 4 has sold the suit property for rs. 40,000/-, the plaintiffs had preferential right to purchase the same for the said amount.3. the defendant contested the suit, inter-alia, on the ground that pre-emption right under an agreement between the parties could not be enforced.4. the trial court decreed the suit. following findings have been recorded;-(i) suit property belonged to the plaintiff and his brother jagan nath, husband of defendant no. 4 and the same was divided between the parties by way of family settlement by way of decree dated 29.8.1953 ex.p-10. (issue nos. 1 and 2).(ii) decree ex.p.10 was not void for want of registration and the same was binding on defendant no. 4 (issue nos. 3, 6, 13 and 16).(iii) defendant nos. 1 to 3 had knowledge of preferential right of the plaintiff to purchase the suit shop. (issue nos. 7, 8 and 17).(iv) the plaintiff was not estopped from ascertaining his rights. (issue nos. 9 and 15).on appeal, findings of trial court have been affirmed. hence this second appeal.5. learned counsel for the appellants sought to raise following substantial questions of law:-'whether defendant no. 4 being a female was relieved of the restriction against alienation in view of section 14(1) of the hindu succession act, 1956 (for short, the 1956 act). reliance is placed on judgment of the apex court in balwant kaur and anr. v. chanan singh and ors., (2000-3)126 p.l.r. 469 (s.c.).(ii) whether decree ex.p.10 was void for want of registration reliance is placed on a judgment of the apex court in kale and ors. v. deputy director of consolidation and ors., a.i.r. 1976 s.c. 807.(iii) whether the stipulation of right of pre-emption was hit by rule of perpetuity envisaged in section 14 of the transfer of property act, 1882 (for short, the 1882 act).'6. learned counsel for the respondent-plaintiffs submitted that no substantial question of law arises as section 14 of the 1956 act had no relevance as question of any restriction by way of inheritance is not involved and defendant no. 4 could not acquire better right than her predecessor. it was also submitted that since no transfer of rights is involved in a family settlement, requirement of registration was not attracted.7. i have considered the rival submissions and perused the record.8. substantial questions of law sought to be raised on behalf of the appellants do not arise and the appeal is liable to be dismissed.9. as regards the first question sought to be raised, scope of section 14 of the 1956 act is not to remove restriction on rights of predecessor of a female and rights inherited by a female are not sought to be made larger than the rights of her predecessor. object of the said provision is to remove disability of a female to acquire or hold property as an absolute owner and to convert limited ownership of a female into an absolute estate. judgment of the apex court in balwant kaur (supra) does not apply.10. since both the courts below held that the shop in question was joint property between the parties and both the brothers got their respective shares in a family arrangements, such an arrangement cannot be held to be transfer of property. in kale (supra) in para 22, the view that family settlement was not required to be registered, was approved by the apex court. in para 24 of the above said judgment, it was observed by the apex court that family arrangement was binding on the parties and operated as an estoppel against a party who took advantage thereof.11. in ram karan prasad v. ram mohit hazra and ors., a.i.r. 1967 s.c. 744, it was observed that pre-emption clause in award of partition would blind successor-in-interest and will not be hit by rule against perpetuity. it was held that such covenant was consistent with section 40 of the 1882 act.12. in r. kemoraja v. burton son and company private limited, a.i.r. 1970 s.c. 1872, it was observed in para 8 that obligation arising out of a contract annexed to ownership of immovable property not amounting to interest therein, could be enforced against a transferee with notice or a gratitious transferee and such restriction could not be treated as personal. such restrictions are not covered by rule against perpetuity.13. for the above reason, there is no merit in this appeal and the same is dismissed.14. vide interim order dated 12.8.1987, liberty was given to respondent-plaintiff no. 1 to withdraw the amount in compliance with the decree granted to the courts below.if the same amount has been withdrawn, the same will now be deposited within two months from today.