Decided on July 25,1963



- (1.)This Second Appeal by defendants 4 and 6 to 11 arises out of O. S. 204 of 1122 instituted in the Parur Munsiff's Court, for partition of an item of immovable property which may be referred to as the suit property, alleged to belong to the tarwad of the plaintiffs and defendants 1 to 11. The tarwad owned nine items of properties situated within the former State of Cochin, with respect to which a similar suit for partition, O. S. 48 of 1121, was instituted in the Anjikaimal District Court. There was a previous suit O. S. 184 of 1109 in the Anjikaimal District Court by some of the members of the tarwad, which was to remove Padmanabha Kurup from Karnavanship and in which the title of the tarwad to all the ten items of properties comprised in O. S. 48 of 1121 and O. S. 204 of 1122, together was found to be established by judgment Ext. XVI confirmed on appeal by the Cochin High Court by judgment Ext. C. Within a few days of Ext. C, Padmanabha Kurup whose claim to the exclusive ownership of the properties was thus negatived, gave an assignment of the suit property by Ext. XI in favour of the 12th defendant, as if it belonged to him. O. S. 204 of 1122 was contested by the 12th defendant relying on Ext. XI. The two courts have accepted his contention and dismissed the suit. In the nature of the questions involved, this Second Appeal has been placed before a Full Bench and has been heard by us.
(2.)The sole controversy in this appeal is whether the suit property belongs to the tarwad and is partible or not. The plaintiffs and the defendants appellants who supported them, relied a good deal on the finding in Ext. G as conclusive. The suit property lay within the limits of the territorial jurisdiction of the Parur Munsiff's Court, which at the time of the institution of O. S. 204 of 1122, was a court of the former Travancore State, which upon its integration with the former Cochin State on the 1st July, 1949, became a part of the territory of the United State of Travancore and Cochin. Thus the Anjikaimal District Court which delivered Ext. XVI and the Cochin High Court which delivered Ext. C, had no jurisdiction at the time to decide title to the suit property. But the contention was, that on the 13th October, 1954 when judgment was pronounced by the Munsiff in O. S. 204 of 1122, the Cochin High Court had ceased to be a foreign court, and so on that date the Parur Court was bound to treat Ext. C as res judicata. On the 1st July, 1949, the two Covenanting States of Travancore and Cochin were united, under what is familiarly known as the Integration Covenant, so as to form the United State of Travancore and Cochin, with a common Executive, Legislature and Judiciary. By virtue of Art.11 of the Covenant, the Raj Pramukh was empowered to promulgate Ordinances to have the force of law for a period of six months. Among the Ordinances which were promulgated on that date, Ordinance I of 1124 provided for the continued operation of the 'existing law' and the continued functioning of the Civil Courts in each State in the concerned area and Ordinance II of 1124 which is more relevant for the decision of this case, provided for the establishment, constitution and powers of a High Court for the new State. S.8 of this Ordinance reads:
"All proceedings commenced prior to the coming into force of this Ordinance in either of the High Courts of Travancore and Cochin, hereinafter in this Ordinance referred to as the existing High Courts, shall be continued and depend in the High Court as if they had commenced in the High Court after such date. Any order made by either of the existing High Courts in any such proceedings as aforesaid shall, for all purposes, have effect not only as an order of that court, but also as an order made by the High Court."

(3.)The effect of the above provision was contended to be, that the records of the former Travancore and Cochin High Courts were transferred to the new High Court so as to become part of the records of that High Court so that, applying Para.2, the decrees or orders of the former High Courts became the decrees or orders of the new High Court for all purposes, including the application of S.11 of the Civil Procedure Code. Para.2 above has reference to "any such proceedings as aforesaid" and is thus related to Para.1; but the contention was, that Para.1 applied not only to proceedings which had commenced prior to the 1st July, 1949, and were pending, but also to proceedings which had become closed or concluded before that date. We find great difficulty in accepting this interpretation. The opening words in Para.1, "all proceedings commenced prior to the coming into force of this Ordinance" normally refer to proceedings which were live or pending at the time, and not to those which were dead or had ceased to be pending, may be, a long time before, say even thirty or fifty years. If such were the intention, appropriate words would have been employed, say, all proceedings commenced prior to the coming into force of this Ordinance, "whether pending or concluded". It requires a good deal of straining of the language to hold, that the concluding words of Para.1 viz., "shall he continued and depend in the High Court as if they had commenced in the High Court after such date" apply also to proceedings which had terminated long time ago. The argument of the appellants' counsel was based almost entirely on the word "depend". According to several dictionaries, the word denotes, especially in relation to law suits or actions at law, "pendency". The Oxford Concise Dictionary gives to the word the meaning, "be waiting for settlement (of law suit, Bill, etc.)", the Now English Dictionary by James A. H. Murray, gives to the word the meaning "to be in suspense or undetermined, be waiting for settlement (as an action at law, a bill in Parliament, an appointment, etc.)", and to the word "depending", "pending". Black's Law Dictionary also gives the same meaning to the word "depending". According to the American College Dictionary, the word "depend" means "to be undetermined or pending" and to Webster's New International Dictionary, it moans "to be pending, to be undetermined or undecided". Learned counsel has relied on the meaning of the word as "to rely" or "to rest" in Chamber's Twentieth Century Dictionary and has addressed an argument, that the records of the former High Courts have come "to rest" in the new High Court. Shorter Oxford English Dictionary, Volume I also relied on, gives one of the meanings as "to rest entirely on, upon, for support or what is needed". The word "rest" is used in a different context and has a different meaning. Oxford Concise Dictionary gives one of the meanings as "rest for maintenance etc. upon (e, g. she depends upon her own efforts)", the New English Dictionary by James A. H. Murray, as "to rest entirely upon for maintenance", Webster's New International Dictionary as "to rest with confidence (e, g. you may depend on him)". The argument, relying on the word "rest" in some of the dictionaries, that the records of the two High Courts have come to rest in the new High Court and have become the records of the latter is entirely far fetched. Even accepting that meaning, it is impossible to import all that counsel wants, into that single word "depend". We are satisfied, that the plain and natural meaning of the word "depend" in Para.1 is "be pending", and that the words "shall be continued" and "depend" have to be read conjunctively for greater clarity and emphasis and not disjunctively, to mean little or nothing. We are therefore unhesitatingly of the opinion, that S.8 of the Ordinance aforesaid applies only to proceedings which were commenced before the date on which it came into force and were pending on that date.

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