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TMI Blog1964 (8) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... against the transferee Mukund Deo in the Court of the Munsiff, Mominabad Taluk, for a decree for possession of the lands sold by Rukhma Bai. They alleged in their plaint that they were governed by the Mayukha school of Hindu Law, that the sale of the lands by Rukhma Bai was not supported by legal necessity and that on the death of Rukhma Bai they became entitled to the lands as the nearest reversioners to the estate of Beli Ram. Mukund Deo contested the claim contending, inter alia, that the sale by Rukhma Bai was for legal necessity, that Vitha Bai had survived Rukhma Bai and that Vitha Bai had during her lifetime assented to the alienation, and had thereafter filed a suit for declaration that the sale was not binding upon her but had wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tnesses for the plaintiffs that Vitha Bai had predeceased Rukhma Bai was preferable to the evidence led by the defendant Mukund Deo. With special leave, the heirs and the legal representatives of Mukund Deo who died since the decree of the High Court have preferred this appeal. 3. The High Court disagreed with the view of the First Appellate Court on the question whether the sale to Mukund Deo was supported by legal necessity and also on the question whether Vitha Bai had predeceased Rukhma Bai. Counsel for the appellants argued that the High Court had, in second appeal, no jurisdiction to set aside the finding of fact recorded by the First Appellate Court. In so arguing, counsel assumed that the jurisdiction of the High Court in decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure (Act 5 of 1908), and the High Court could not set aside the findings of fact recorded by the First Appellate Court. We are unable to agree with this contention. It is true that as a general rule, alterations in the law of procedure are retrospective, but a right of appeal to a particular forum is a substantive right and is not lost by alteration in the law, unless provision is made expressly in that behalf, or a necessary implication arises- In, Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369, Lord Macnaghten in delivering the judgment of the Judicial Committee observed: The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal before it must, therefore, be derived from the Hyderabad Code, untrammelled by anything contained in Section 100 of the Code of Civil Procedure, 1908. It is true that by Section 100, Code of Civil Procedure the power of the High Court in dealing with a second appeal was restricted, but the restriction could only apply to cases instituted in the Court of First Instance on or after April 1, 1951, and the jurisdiction of the High Court would, in respect of cases instituted before that date, would continue to be governed by Section 602 of the Hyderabad Code of Civil Procedure. 6. Counsel for the appellants also contended that the finding of the High Court that Vitha Bai died before Rukhma Bai was based on no evidence. It is true th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livelihood and was given after her death, to her daughter Vitha Bai. From this he inferred that Rukhma Bai died first and Vitha Bai some time thereafter. He expressed the view that if this was not correct the witnesses would have stated that on the death of Rukhma Bai, Vitha Bai inherited the field set apart for Rukhma Bai herself. In the view of the Appellate Judge, therefore, the evidence of the plaintiffs' witnesses established that Vitha Bai had died after Rukhma Bai. We are unable to see how absence of any statement made by the plaintiffs' witnesses that Vitha Bai did not inherit the property was a circumstance from which an inference could be drawn in favour of the defendant. In any event the High Court has preferred the view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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