RAM DAYAL versus NARBADA AND ANOTHER

Citation: [1973] 3 S.C.R. 196 · Decided: 22-12-1972 · Supreme Court of India · Bench: A.N. GROVER · Disposal: Dismissed

Judgment (excerpt)

196 
RAM DAYAL 
v. 
NARBADA AND ANOTHER 
December 22, 1972 
[A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.] 
Practice c·nd Procedure-Special leave when may be revoked. 
Rule 97 of the Rajasthan High Court Rules, 1952, states that where 
a special appeal from the judgment of one judge does not lie unless 
A 
B 
such judge has declared that the case is a fit one for appeal, an appli~ 
cation for such declaration may be made orally before or at the time 
when the judgment is delivered and that the Court 
shall 
thereupon 
C 
1ecord an order granting or refusing to grant such declaration. 
In the present case, the only question was whether there was proof 
that a person was dead, as not hatj.ng been heard 
of for more 
than 
7 years, on the date his wife executed a gift deed With 
respe<;t 
to 
property worth about Rs. 200. The appellant did not avail himself of 
the provision for leave to appeal to a Division Bench. He 
how,ever 
obtained special leave from this Court, under Art. 136, but in the 
D 
petition for special 1eave, the fact that no application was made to ~ 
Single Judge of the High Court for leave to appeal to the Division 
Banch, was not stated. 
HELD : The special leave must be 
revoked, 
because, 
(a) the 
appellant had not exhausted all his remedies in the High Court before 
invoking the jurisdiction of this Coult, and (b) 
the value 
of 
the 
E. 
property involved is too small and the question of law involved is o' 
no public importance. [198E] 
The Union of India v. l}.ishorilal Gupta and 
Brothers, 
A. I. R. 
1959 S.C. 1362 aiJKf The State of BombGy v. Mis. Ratilal Vadilal and 
Brothers, A.LR. 1961 S.C. 1106, followed. 
CML APPELLATE JURIDICTION : Civil Appeal No. 1559 Of 
1967. 
Appeal by certificate from the judgment and order dated 
February 22, 1967 of the Rajasthan High Court in S.B. Civil 
Regular Second Appeal No. 202 of 1965. 
Naunit Lal, for the appellant. 
B. D. Sharma, for the respondents. 
The Judgment of the Court was delivered by. 
F 
MATHEW, J. This is an appeal, by special leave, from a de-
H 
cree of the High Court of Rajasthan passed in appeal by which 
it dismissed the suit for recovery of possession of the plaint pro-
perty filed by the appellant. 
B 
c 
D 
E 
G 
H 
IWI DAYAL v. NAlUIADA (Mathew, I.) 
197 
One Ram Prasad was the owner of the property in question. 
He was not heard of by his wife Pani since 1950 for more than 
7 years. On June 4, 1962, she made a gift of tlJe property to 
the appellant, Ram Dayal, on the basis that Ram Prasad was 
dead. 
The appellant, alleging that respondents forcibly took posses· 
sion of the property, filed the suit for declaration that he was the 
owner of the property and for recovery of its possession. 
The respondents contended that Ram Prasad was alive on 
June 4, 1962, that his wife had no right to execute the gift deed 
and that the appellant was not in possession of the property at 
any time. 
The trial Court held that there was no proof that Ram Prasad 
was dead on June 4, 1962, and, therefore, his wife was not com· 
petent to execute the gift deed and dismissed the suit. 
In appeal, the Court held that Ram Prasad must be deemed 
to have been dead at the time when the gift deed was executed by 
his wife and so the gift was valid and reversed the decree of the 
trial Court. 
It was against this decree that the appeal was filed before the 
High Court. The High Court reversed the decree of the appellate 
Court and restored the decree' of the trial Court on the ground 
that there was no proof that Ram Prasad was dead on the date -0f 
the execution of the gift deed. 
The respondents have filed an application for revocation of 
the s~ial leave to appeal on the ground that the appellant did 
not avail himself of the provision for leave to appeal to a division 
Bench of the High Court and that the value of the propertv in 
question is only Rs. 200. 
· 
We heard counsel on both sides on the question of the revo-
cation of the special leave to appeal and we are of the opinion 
that the leave to appeal should be revoked. 
Section 18(2) of the Rajasthan High Court Ordinance, 1949 
(Ordinance No. XV of 1949) provides : 
"Notwithstanding anything hereinbefore provided, 
an appeal shall lie to the High Court from a judgment 
of one Judge of the High Court made in the exercise of 
appellate jurisdiction in respect of a decree or order 
made in the exercise of appellate jurisdiction by a Court 
subject to the suoerintendence of the High Court whe

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