Decided on July 30,1953



Venkatarama Aiyar, J. - (1.) This is an application for leave to appeal to the Supreme Court against the decision of this Court in App. No. 698 of 1948. That appeal arose out of a, suit for partition instituted by the respondent in the Court of the Subordinate Judge of Narasapur. The present petitioner was the first defendant in the suit. His wife was the second defendant. The plaintiff alleged that he had been taken, in adoption by the defendants on 7th April 1932 and that as adopted son he was entitled to a half share in the family properties. On 6-7-1940 the first defendant had sold some of the suit properties to the second defendant under Ex. D-7 and settled other properties on her on 25-10-19.44 under Ex. D-10. The plaintiff contended that these deeds were not binding on him and that he was entitled to a half share in the properties comprised in those deeds. The defendants contested the suit on several grounds. They denied that they took the plaintiff in adoption. They contended that the deeds Exs. D-7 and D-10 were valid and binding on him. They also pleaded that the suit was barred by limitation. They raised several other pleas. On these pleadings, as many as 25 issues were framed. Of these, issues 1 to 3 are alone now material. They are as follows: "1. Whether the suit is barred by limitation because it is filed more than three years after plaintiff attained majority?
(2.) Whether defendants 1 and 2 adopted plaintiff on 7-4-1932 as alleged?
(3.) Whether the claim of plaintiff, if true, is defeated by exclusion for 12 years or adverse possession of first defendant?" At the hearing of the suit, these issues were tried as preliminary issues. The Subordinate Judge held in favour of the plaintiff on issues 1 and 3 on the question of limitation. But he held on the second issue that the plaintiff had not proved the adoption set up by him. On that he dismissed the suit. The plaintiff preferred an appeal against that decision to this court, appeal No. 698 of 1948, and in our judgment dated 12-11-1952, we held, differing from the Subordinate Judge, that the plaintiff had established his adoption. Agreeing with the Subordinate Judge on the question of limitation, we remanded the case for trial of the other issues. The first defendant has filed the present application for leave to appeal to the Supreme Court against this order. The point for decision is whether the order of remand dated 12-11-1952 is a final order within the meaning of Article 133 of the Constitution. 2. It is contended by Mr. P. M. Srinivasa Aiyangar, the learned advocate for the petitioner, that as we have decided on issue 2 that the plaintiff was adopted by defendants 1 and 2, our judgment would be a final order, because on that finding the plaintiff would be entitled to a half share in the family properties. But the truth of the adoption was not the only question in controversy between the parties. If that had been so, on our finding on issue 2, we should have passed a preliminary decree for partition, and that would have been open to appeal as a decree under Article 133. There are other and substantial questions on which the parties are at issue. For example, the plaintiff contends that the sale deed, Ex. D-7, dated 6-71940 and the settlement deed Ex. D-10 dated 27-10-1944 are not binding on him. The defendants, however, plead that they are valid and binding on him. Issues 4, 5 and 6 relate to this contention. Unless these issues are determined, there cannot be a final adjudication of the points in dispute in the suit. No doubt the issue as to adoption is an important one, and by reason of our finding on that issue, one obstacle to the plaintiff obtaining a decree is removed. But before he can obtain a preliminary decree for partition, other issues also must be determined. Therefore, our judgment is interlocutory in character, not final. 3. There is considerable and high authority interpreting the precise meaning of the words "final order". In --'Firm Ramchand Nanjimal v. Firm Goverdandas Vishandas Ratanchand', AIR 1920 PC 86 (A), the question arose with reference to an order passed under the Indian Arbitration Act. The defendant in an action applied for stay under Section 19 of the Indian Arbitration Act and that was granted. The Judicial Commissioner of Sind set aside that order and remanded the case for disposal on the merits. Leave to appeal against his order was granted on the ground that it was a final order. Before the Privy Council, an objection was taken that the order under appeal was not a final order. In upholding this objection, Viscount Cave, after referring to the English authorities on the subject, observed as follows: "The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties. The orders now under appeal do not finally dispose of those rights, but leave them to be determined by the courts in the ordinary way. In their Lordships' view, the orders were not final, and accordingly the appeals cannot proceed." In -- 'Abdul Rahman v. D. K. Cassim & Sons', AIR 1933 PC 58 (B), the facts were these: The firm of Cassim and Sons had filed a suit for damages against the defendants on the ground that they had conspired to ruin their business. Pending the action, the plaintiffs were adjudicated insolvents. The Official Assignee declined to continue the action) and thereupon Cunliffe J. dismissed the action on the ground that the cause of action had vested in the Official Assignee and that the plaintiffs could not continue the suit. That order was set aside on appeal by Page C. J. and Das J. on the ground that the cause of action was personal to the insolvents, and did not pass to the Assignee. The (sic) Judges however granted leave to appeal to the Privy Council against this order on the ground that it was a final order. An objection having been raised that this was not a final order and therefore not appealable under Section 109, C. P. C., Sir George Loundes, after reviewing the authorities, held that the preliminary objection was well founded and that the order in question was not a final order. He observed: "It remains to consider whether the order in question was a 'final order' within the meaning of Section 109(a) and this question is, their Lordships think, concluded by the judgment of this Board delivered by Lord Cave in --'AIR 1920 PC 86 (A)...... Lord Cave, in delivering the judgment of the Board laid down, as the result of an examination of certain cases decided in the English Courts, that the test of finality is whether the order 'finally disposes of the rights of the parties', and he held that the order then under appeal did not finally dispose of those rights, but left them 'to be determined by the courts' in the ordinary way'. It should be noted that the appellate court In India was of opinion that the order it had made 'went to the root of the suit, namely, the jurisdiction of the court to entertain it', and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit. If, after the order the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under Section 109(a) of the Code....... The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital, issue in the case, but it left the suit alive and provided for its trial in the ordinary way.";

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