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TMI Blog1953 (2) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... known as Baikunthapur Raj situated in that district, on the allegation that he, being the eldest son of late Prosanna Deb Raikot, 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 Prosanna and was married to the latter in what is known as the Gandharba 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 comprised 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 Nos. 2 to 4) and also his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Calcutta v. The Oriental Gas Company 8 Ben. L.R. 433, where the learned Chief Justice said as follows :- We think that 'judgment' in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined. 7. The identical question, whether an order for transfer under clause 13 of the Letters Patent is a 'judgment' for purposes of appeal, was pointedly raised before the Madras and the Rangoon High Courts, and while the Madras High Court [Vide Krishna Reddi v. Thanikachala I.L.R. 47 Mad. 136, answered the question in the affirmative, a definitely negative answer was given by the Rangoon High Court [Dayabhai v. Murugappa Chettiar, 13 Rang. 457 (F.B.]. The Madras decision purports to be in accordance with the view of enunciated by a Full Bench of that court in Tuljaram v. Alagappa 35 Mad. 1 (F.B., where Sir Arnold White C.J. sitting with Krishnas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed of. Save and except final and preliminary judgments thus defined, all other decisions are 'orders' and they do not come within the description of 'judgments' under the relevant clause of the Letters Patent. No 'order' is appealable unless an appeal is expressly provided against it by the Civil Procedure Code or some other Act of the Legislature. In this view an 'order' for transferring a suit from a subordinate court to the High Court could not possibly be regarded as a 'judgment', and consequently no appeal would lie against such an order. This definition of 'judgment' has been accepted in several cases by the Nagpur High Court [Vide Kunwar Lal Singh v. Uma Devi, A.I.R. 1945 Nag. 156; Shankar Deo v. Kalyani A.I.R. 1948 Nag. 85], and substantially this seems to be the view of the Allahabad High Court also [Vide Shahzadi Begam v. Alakhnath 57 All. 983]. A Full Bench of the Lahore High Court [Shaw Hari v. Sonah Mal Beli Ram, I.L.R. 23 Lah. 491], however, has refused to accept this view and has preferred to follow the tests enumerated by the Calcutta and the Madras High Courts. The Bombay High Court accepted the Calcutta view from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, is a judgment in the proper sense of the term. 11. It cannot be said, therefore, that according to Sir Richard Couch every judicial pronouncement on a right or liability between the parties is to be regarded as a 'judgment', for in that case there would be any number of judgments in the course of a suit or proceeding, each one of which could be challenged by way of appeal. The judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. This view, which is implied in the observations of Sir Richard Couch C.J. quoted above, has been really made the basis of the definition of 'judgment' by Sir Arnold White C.J. in the Full Bench decision of the Madras High Court to which reference has been made [Vide Tuljaram v. Alagappa, 35 Mad. 1]. According to White C.J. to find out whether an order is a 'judgment' or not, we have to look to its effect upon the particular suit or proceeding in which it is made. If its effect is to terminate the suit or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed. 14. Mr. Chatterjee in the course of his arguments placed considerable reliance upon the pronoucement of the Calcutta High Court in Hadjee Ismail v. Hadjee Mahomed 13 Beng. L.R. 91, where it was held by Couch C.J. and Pontifex J. that an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a 'judgment' under clause 15 and could be challenged by way of appeal. This decision was followed by the Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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