Holding

No appeal lies against a mere finding; an appeal is maintainable only when a decree is passed, and the order dated 21 July 1999 is not a decree.

Summary

The dispute concerned the interpretation of the H.E.H. Nizam's Jewellery Trust deed, incorporated by the Nizam's Trust Deeds (Validation) Act, 1950, particularly clauses dealing with the "Remaining Sons' Fund" and "Remaining Daughters' Fund". Original petitions under Sections 56 and 61 of the Indian Trusts Act were filed in the City Civil Court, which issued directions on a preliminary issue but did not pass a decree. The High Court set aside those directions, entered the merits, and held the original applications non‑maintainable. The parties filed civil revision petitions under Section 115 CPC and Article 227, and special leave petitions (SLPs) under Article 136 before the Supreme Court. The Supreme Court held that the order dated 21 July 1999 was not a decree; therefore no appeal lies against a mere finding and the civil revision applications were not maintainable. Consequently, the SLPs were returned to the petitioners for refiling before the High Court, and the matters were to be reheard afresh along with the pending appeal and miscellaneous applications. The appeals were disposed of without a substantive decision on the trust‑deed interpretation.

Issues considered

Whether the order dated 21 July 1999 passed by the Chief Judge is a decree amenable to appeal.
Whether civil revision applications under Section 115 CPC and Article 227 are maintainable against that order.
Whether the High Court could entertain the merits of the dispute without an appeal or revision.
Whether a special leave petition under Article 136 is maintainable directly against the order.
Whether the interpretation of a trust deed that forms part of a statute constitutes a jurisdictional error.

Legislation cited

Code of Civil Procedure, 1908s. 105, s. 115
Constitution of Indias. 136, s. 142, s. 226, s. 227
Indian Trusts Act, 1882s. 56, s. 61

Subjects

Trust deed interpretationJurisdictional errorCivil revisionAppealabilityNizam's TrustIndian Trusts ActArticle 136Article 142Section 115 CPCPreliminary issue

Judgment

[2009] 4 S.C.R. 589

-r NAWAB SHAQAFATH ALI KHAN & ORS. A
v
NAWAB IMDAD JAH BAHADUR & ORS.
Civil Appeal Nos. 846-847 of 2001
MARCH 5, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ)
Constitution of India, 1950:
}

Articles 136 and 142 - Jurisdiction of Supreme Court
under - Trust deed called 'H.E.H. Nizam's JewellFJry Trust' - c
Interpretation of - Applications under Trust Act and suits filed
before Chief Judge, City Civil Court - Orders on preliminary
issue on applications but no decree passed - Challenged
under Article 227 - Order on preliminary issue in suits not
challenged - Final judgment challenged in appeal - Interim
~ D
order by High Court - Order of Chief Judge, City Civil Court
and interim order of High Court challenged under Article 136
- HELD: No appeal lies against a mere finding - An appeal
would be maintainable only when a decree is passed -
Ordinarily, SLP would not be entertained directly from judgment
and order of Chief Judge, City Civil Court - An appeal and a E
civil revision application are pending in High Court - Trust
./ deed in question is part of a statute - In case of a wrong
interpretation of a statute relating to jurisdiction of a court
enabling it to issue a direction, it would amount to a
;urisdictional error - Courts were, therefore, required to F
exercise their jurisdiction with more care and caution - SLPs
filed before Supreme Court returned to petitioners so as to
enable them to re-file the same before High Court for
consideration on merits - Matters directed to be considered
J
afresh with pending appeal and miscellaneous applications - G
Nizam's Trust Deeds (Validation) Act, 1950 - s.3.
Articles 226 and 227 - Jurisdiction of High Court under
- Applications filed before Chief Judge, City Civil Court ulss
589 H
590 SUPREME COURT REPORTS (2009] 4 S.C.R.

A 56 and 61 of Trust Act- Directions issued - HELD: Directions, '\-
•
if issued, would be binding on trustees- Trustees, if aggrieved,
would be entitled to take recourse to a remedy available before
superior court- If High Court had jurisdiction to entertain either
an appeal or revision or a writ petition, in a given case it,
B subject to fulfillment of other conditions, could even convert a
revision application or a writ petition into an appeal or vice-
versa in exercise of its inherent power - Further, it would not
be correct to say that in the absence of revisional jurisdiction,
remedy under Articles 226 and 227 would also not be available
c in /aw- Indian Trust Act, 1882 - ss. 56 and 61.
The State of Andhra Pradesh. enacted the Nizam's
Trust Deeds (Validation) Act, 1950, s.3 whereof provided
that the trust deed mentioned in the Scheduled would be
valid and effectual for all purposes and would have the
D force of law. By an amendment in the year 1951, trust deed
dated 29.3.1951 called "H.E.H. The Nizam's Jewellary
Trust" was inserted in the Schedule of the Act. Disputes
arose with regard to the terms of the Trust Deed dated
29.3.1951 regarding "Remaining sons and Remaining
E Daughters Fund" expressed in the Will. Original petitions
No. 173/1998 and 253/1998 purported to be u/ss 56 and
61 of the Trusts Act, 1882 and O.S. No. 383/1998 O.S. No.
540/1998 were filed in the Court of Chief Judge, City Civil
Court, Hyderabad praying for directions to the trustees
F to execute the trust deed as per correct interpretation of
clauses 9 to 12 thereof. A preliminary question was raised
as to whether the surviving remaining sons and
daughters of the Settler were alone entitled to the corpus
allotted to the remaining sons and remaining daughters
G who died issueless. The Court by a common judgment
dated 21.7.1999 gave directions holding, inter alia, that the
Settler intended that even the children of a pre-deceased
remaining son or a remaining daughter were entitled to a
share in the unit allocated to the remaining son or
H daughter who died issueless. Pursuant to the directions,
NAWAB SHAQAFATH ALI KHAN & ORS. V. 591
NAWAB IMDAD JAH BAHADUR & ORS.

o(' no decree was prepared in 0.5. 540/1998. Against the A
order dated 21. 7.1999 revision petitions under Article 227
of the Constitution of India and s.115 CPC were filed
before the High Court. However, the order so far as it
related to the preliminary issue in two suits was not
· challenged. The High Court held the original petitions as B
not maintainable and the order regarding primary issue
~ in two suits as unassailable, but entered into merits of
..t the case and set aside the order dated 21.7.1999. The order
of the High Court was challenged in appeal.
Subsequently, the other issues in 0.5. No. 540/1998 were c
determined by the Chief Judge, City Civil Court and by
judgment and decree dated 3.4.2000 the suit decreed
holding that the plaintiffs had vested right in the corpus
and accretion of the remaining sons and remaining
_ ~ daughters fund. An appeal was filed before the High Court
0
which directed that pending notice the decree dated
3.4.2000 would not be given effect to. The instant appeals
were filed challenging the order of High Court as also the
order dated 21.7.1999.
Disposing of the appeals, the Court E
HELD: 1.1 The findings rendered in the order dated
21.07 .1999 passed by the Chief Judge, City Civil Court
did not amount to a decree nor any decree was passed
pursuant thereto. The suit was not finally disposed of
thereby. No appeal lay against a mere finding. An appeal F
would be maintainable only when a decree is passed. The
matter might have been otherwise if a decree was to be
recorded formally pursuant to the decision so rendered.
It was not considered to be even an order passed in terms
of Order 14, Rule 2 of the Code of Civil Procedure, 1908. G
[para 40 and 43] [615-C-D, G]
1.2 It may be true that in terms of s.105 of the Code of
Civil Procedure, 1908 when an appeal against the final
decree is passed, legality of the said order could be H
592 SUPREME COURT REPORTS [2009] 4 S.C.R.

A challenged in the appeal. Only because a civil revision ....
application has not been filed, the same would not attract
the principle of res judicata as an appeal from the final
decree could still be maintained. In the instant case, an
appeal from the final decree is maintainable. [para 43,45]
B (615-G-H; 616-A, D-E]
C. V Rajendran and Another v. N. M. Muhammed Kunhi
(2002) 7 sec 447 - referred to. ~

1.3 The High Court opined that the civil revision •
applications filed against the order dated 21.07.1999 were
c not maintainable. In this view of the matter, the High Court
should not have entered into merits of the case. [para 39
and 41] (615-B-C, E]
2.1 It is true that preliminary issues were decided by
an order dated 21.07.1999. It is, however, not in dispute -
D ~

that as several other issues were framed including the
additional issues, in terms whereof the suit was ultimately
decreed by a judgment and order dated 3.04.2000, an
appeal thereagainst has been filed. A civil miscellaneous
application has also been filed. Both, the appeal and the
E civil miscellaneous application are pending before the
High Court. [para 42] (615-F]
2.2 Ordinarily, a special leave petition would not be •
entertained directly from a judgment and order of the Chief
Judge, City Civil Court. [para 46] (616-E]
F
Chandi Prasad Chokhani v. State of Bihar (1962) 2 SCR
276 - referrd to.
3.1 A civil revision application although must
necessarily having regard to the terminologies used in s.
G 115 CPC involve the question of jurisdiction, a
jurisdictional question may arise not only when a court
acts wholly without jurisdiction but also in a case where
jurisdictional errors are committed while exercising
jurisdiction. There are various facets of 'jurisdictional
H errors'. Taking into consideration any irrelevant fact or
NAWAB SHAQAFATH ALI KHAN & ORS. V. 593
NAWAB IMDAD JAH BAHADUR & ORS.

non-consideration of a relevant fact would involve A
jurisdictional issue. [para 50] [618-C-D]
Mis. D.L.F Housing and Construction Company (P.) Ltd.,
New Delhi v. Sarup Singh and Others (1969) 3 SCC 807;
Ouseph Mathai and Others v. M. Abdul Khadir (2002) 1 SCC
319 and Ajanth a Transports (P) Ltd., Combatore v. Mis. T. V K. B
Transports, Pulampatti, Combatore District (1975) 1 SCC 55
:: - referred to.
3.2 It is not correct ta_say that in the absence of
revisional jurisdiction remedy in terms of Articles 226 and c
227 of the Constitution of India would also not be available
in law. Not only the High Court can exercise its
supervisory jurisdiction for the purpose of keeping the
subordinate courts within the bounds of its jurisdiction
as envisaged under Article 227 of the Constitution of India;
0
even a writ of certiorari can be issued wherefor the
subordinate or inferior courts would be amenable to the
superior courts exercising power of judicial review in
terms of Article 226. [para 51] [618-G-H; 619-A-B]
Surya Dev Rai v. Ram Chander Rai and Others (2003) 6 E
SCC 675 and Taherakhatoon (DJ By LRs. v. Sa1ambin
Mohammad (1999) 2 SCC 635 - referred to.
3.3 Further, applications were filed before the District
Court also ulss 56 and 61 of the Trusts Act praying for
issuance of directions to the trustees. Such directions if F
issued ordinarily would be binding on them. The trustees,
therefore, would be entitled to take recourse to a remedy
available before a superior court, if they are aggrieved by
such direction. If the High Court had jurisdiction to
entertain either an appeal or a revision application or a G
writ petition under Articles 226 and 227 of the Constitution
of India, in a given case it, subject to fulfillment of other
conditions, could even convert a revision application or
a writ petition into an appeal or vice- versa in exercise of
its inherent power. Indisputably, however, for the said H
594 SUPREME COURT REPORTS [2009] 4 S.C.R.

A purpose, an appropriate case for exercise of such
jurisdiction must be made out. [para 54) [619-G-H; 620-A-B]
3.4 Furthermore, the trust deed in question is not an
ordinary one. It is a part of a statute. In the case of a wrong
interpretation of a statute relating to jurisdiction of a court
8
enabling it to issue a direction, it would amount to a
jurisdiction error. In that sense, the courts were required
to exercise their jurisdiction with more care and caution.
[para 55] [620-C]
c 4. Interest of justice would be sub-served if the
matters are directed to be considered afresh by the High
Court together with the pending appeal and miscella-
neous applications. The special leave petitions filed before
this Court against the order dated 21.07 .1999 shall be
o returned to the petitioners thereof so as to enable them
to re-file the same before the High Court which may also
be considered on its own merits. These directi<>ns are
passed in exercise of power under Article 142. of the
Constitution of India. [para 56) [620-D-E]
E Case Law Reference
(2002) 1 sec 447 referred to parai 23
(2002) 1 sec 319 referred to parc:1 23

F (1962) 2 SCR 276 referred to parc:1 23
(1999) 2 sec 635 referred to para 23
(1969) 3 sec 807 referred to para 28
(1975) 1 sec &~ referred to para 30
G
(2003) 6 sec 675 referred to para 31
CIVILAPPELLATE JURISDICTION: Civil Appeal Nos. 846-
847 of 2001
From the Judgement and Order dated 21.01.2000 of the
H
NAWAB SHAQAFATH ALI KHAN & ORS. V. 595
NAWAB IMDAD JAH BAHADUR & ORS.

Hon'ble High Court of Judicature of Andhra Pradesh at A
Hyderabad in Civil Revision Petition No. 3197of1999.
WITH
Civil Appeal No. 848 of 2001
Civil Appeal No. 849 of 2001 B

Civil Appeal No. 850 of 2001
Civil Appeal f';Jo. 851 of 2001
P.P. Rao, Dushyant A. Dave, Rajendra Choudhary, C.K. c
Sucharita, Achuta Anand, S. Udaya Kumar Sagar, Bina
Madhavan, Manish Kumar, S. Ravi Kumar, Sarla Chandra,
Rameshwar Prasad Goyal, Pavan Kumar, for the appering
parties.
The Judgement of the Court was delivered by D
S.B. SINHA, J.
INTRODUCTION
The Nizam of Hyderabad executed a Trust Deed called
"H.E.H. The Nizam's JewellaryTrust" dated 29.3.1951 in re:;:.dct E
of some of his private properties, precious gems, jewels.
Ornaments, articles of jewellary and antique pieces.
2. The terms and conditions for discharging the trust are
set out therein. The trust deed has been specified in parts I, 11, 111 F
of the third schedule.
3. Two sons of the Nizam, two sons of his elder son, two
daughters of his second son, the daughter of the Nizam through
Dullan Pasha Begum Saheba and his step brother have been
mentioned in part I, the remaining thirteen sons of the Nizam G
and the children of his deceased son, Kazim Jah were
mentioned in Part II and seventeen daughters have been
mentioned in part Ill of the third schedule.
4. The dispute is with regard to the terms 'Remaining sons H
596 SUPREME COURT REPORTS [2009) 4 S.C.R.

A and Remaining Daughters Fund' expressed in the Will. The
children of some of the deceased remaining sons and remaining
daughters seek for a direction to the trustees to execute the
Trust Deed by giving the correct interpretation to clauses 9 to
11 of the Trust Deed.
B 5. The dispute lies in the interpretation of some of the
important clauses of the Trust deed and particularly claus1~s 9
and 1Othereof.
TRUST DEED
C 6. The preamble of the Trust Deed dated 29.03.1951 states:
"AND WHEREAS the settler out of natural love and
affection which he bears towards his relatives specifiE!d in
the Third Schedule hereunder written and for diverse other
good causes and considerations him there unto moving,
D
is desirous of making a settlement of the said articles
specified in the First Schedule hereunder written arid of
the said securities specified in the Second Schec:lule
hereunder written in manner hereinafter appearing AND
WHEREAS the trustees have agreed to become the first
E Trustees of these presents as is testified by their being
parties to and executing these presents AND WHEREAS
prior to the execution of these presents the said articles
specified in the First Schedule hereunder written and the
said securities specified in the Second Schedule
F hereunder written have been delivered by the Settlor to
the Trustees, NOW THIS INDENTURE WITNESSETH as
follows:-
1. in the consideration of the premises and of natural
love and affection which the settler bears towards
G
his relatives specified in the Third Schedule hereunder
written and for divers other good causes and
considerations him unto moving. He the settler doth
hereby transfer unto the Trustees, the said precious
gems, jewels, ornaments and other articles of
H
NAWAB SHAQAFATH ALI KHAN & ORS. V. 597
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J.]

jewellery and antique pieces specified in the First A
Schedule hereunder written and the said securities
specified in the Second Schedule hereunder written
and all which articles and securities are hereinafter
for brevity's sake referred to as "the Trust Property"
(which expression shall include all other properties B
or investments or any kind whatsoever into which the
same or nay part thereof may be converted or varied
F from time to time and such as relay be acquired by
~
the Trustees or come to their hands by virtue of these
presents) AND all the right title interest claim and c
demand whatsoever at law and in equity of the Settler
in and to the Trust Property and every part thereof
TO HAVE, RECEIVE, AND TAKE all and singular
the Trust Property unto the trustees UPON THE
TRUSTS and with subject to the powers, provisions,
D
agreements and declarations hereinafter declared
and contatined of and concerning the same.
2. the Trust hereby created shall be called "H.E.H. The
Nizam's Jewellery Trust"."
7. The trustees shall divide the corpus of the principal into E
sixteen equal parts and allocate them as following

• Azam
Four equal parts to and hold the same for Prince
Jha, the eldest son of the settler in the manner
as mentioned in clause 5. F
• Four such equal parts to and hold the same upon the
trust for Prince Muazzam Jah, the second son of the
settler in the manner as mentioned in clause 6.

~
• One such equal part to and hold the same upon the
trust for Shabzadi Begum, the daughter of the settler
G
by Dulhan pasha Begum Prince Muazzam Jah, the
second son of the settlor in the manner as mentioned
in clause 7.

• One such equal part to and hold the same upon the H
A
598 SUPREME COURT REPORTS [2009] 4 S. C.R.

trust for Shahbada Nawab Basalat Jha Bahadur the
step brother of the settler in the manner as mentioned
' ,.
-
' ..

in clause 8.

• Three such equal parts to and hold the same upon
trust for the sons, grandsons and granddaughters of
B the settler as mentioned in Part II of the third schedule
and as mentioned in clause 9

• The remaining three equal parts to and hold the same
upon trust for the daughters of the settler specified in +

c Part Ill of the third schedule to the deed and as
mentioned in clause 10
Clause 9 of the Trust Deed reads as under:
"9. The Trustees shall hold the said three equal parts of
the Principal Fund allocated to the sons, grandsons and
D ;..-
grand daughters of the Settlor mentioned in part II of the
Third Schedule hereunder written (hereinafter called "the
Remaining Sons' Fund" UPON TRUST to divide the same
or to treat the same as notionally divided into 126 (One
hundred twenty six) equal units and to allocate such 126
E units to the respective beneficiaries specified ln part II of
the Third Schedule hereunder written in the respective
proportions set opposite their respective names in the
second column of part II of the Third Schedule hereunder
written and to hold the same upon the respective Trusts
F hereinafter declared and contained of an concerning the
same respectively, viz :
(a) To manage the respective units of the Remaining Sons'
Fund allocated to each respective beneficiary as aforesaid
and to collect and to recover the interest anc;I other income
G
(if any) ...
(b) To pay out of the income of the respective units of the
Remaining Sons' Fund allocated to each such beneficiary
as aforesaid ::::id if necessary out of the corpus thereof
H (including the remuneration payable to the Trustees under
NAWAB SHAQAFATH ALI KHAN & ORS. V. 599
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J.]

the provisions hereof) which could not be met or defrayed A
out of the income or corpus of the said securities specified
in the Second Schedule hereunder Written.
(c) During the life time of the Settlor to accumulate and
invest the net income (if any) ...
B
(d) From and after the death of the Settlor to pay the net
income of the respective units of the Remaining Sons' .
.. Fund allocated to each such beneficiary as aforesaid to
-t each such beneficiary absolutely for and during the terms

- I
of his or her respective life.
(e) On the death of the survivor of the Settlor and each
c
Beneficiary leaving a child or children and/or remoter issue
him or her then surviving to divide and distribute the units
of Remaining Sons Fund allocated to such beneficiary as
aforesaid amongst such child or children and/or remoter D
'~ issue of such Beneficiary per strips in the proportion of
two shares for every male child or remoter issue of such
Beneficiary to one share for every female child or remoter
issue of such Beneficiary tending in the same degree of
relationship and so that no person shall take whose parent
entitled to share under this clause shall be living and further
E
_.
so that persons standing in the same degree of
relationship shall take between themselves in the same
-./
proposition as above the share which their parent would
have taken if living provided, however, that if any of the
first thirteen beneficiaries specified in the Part II of the F
third schedule hereunder written (i.e. Beneficiaries other
than ?(seven) grandchildren of the Settlor specified in item
14 of Part II of the Third Schedule hereunder written) shall
die without leaving any child or remoter issue him surviving
)
then the Trustees shall on his death hold the units of the G
... Remaining Sons' Fund allocated to such beneficiary as
aforesaid UPON TRUST to divide the same into two equal
parts and to allocate one such equal part to the remaining
beneficiaries specified in Part II of the Third Schedule
...... hereunder written (including ?(seven) grandchildren of the H
600 SUPREME COURT REPORTS [2009] 4 S.C.R.

A Settlor specified in item 14 of Part II of the Third Schedule
hereunder written). In the shares and the proportions
mentioned against their respective names in second
column thereof and to allocate the other such equal part to
the daughters of the Settlor specified in the part Ill of the
B Third Schedule hereunder written in equal shares and
proportions and to hold and stand possessed of the
respective shares which on such division and allocation
1
shall go through respective beneficiaries specified in Parts
II and Ill of the Third Schedule hereunder written Upon +
c Trust to add the same to and amalgamate the ame with
the respective units of the Remaining Sons' Fund or the
Remaining Daughters' Fund hereinafter referred to (as
the case may be} originally allocated to them respectively
under the provisions of this clause and the next succeeding
clause 10 hereof provided further that if any of the said
D
seven grandchildren of the Settlor specified in item 14 of
Part II of the Third Schedule hereunder written shall die
without leaving any child or remoter issue him or her
surviving then the Trustees shall on his or her death hold
the units of the Remaining Sons' Fund allocated to such
E grandchildren of the Settlor as aforesaid UPON TRUST
to divide the same in the proportions in which the units of
the Remaining Sons' Fund are allocated to the remaining
grandchildren of the Settlor as specified against the "
respective names in the second column of the Part II of the
F Third Schedule hereunder written and to hold and stand
possess of the respective shares which on such division
shall go to the respective grandchildrenspecified in item
14 of Part II of the third Schedule hereunder written UPON
TRUST to add the same and amalgamate the same with
G the respective units of the Remaining Sons' Fund originally
'
allocated to them respectively upon the same respective p;;;
trustees as those upon which the respective original units
to which they are added and with which they are
amalgamated dS aforesaid or directed to be held under ~
H the provisions of this clause."
NAWAB SHAQAFATH ALI KHAN & ORS. V. 601
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J.]

>i''
8. In terms of Clause 10 of the Trust Deed, remaining A
daughters' fund is constituted and the manner in which the said
fund is to be discharged is contained therein; the relevant part
whereof reads as under:

"(e) ... provided however, that if any daughter of the Settler
B
specified in Part Ill of the Third Schedule hereunder written
shall die ~ithout leaving any child or remoter issue her
t surviving then the Trustees shall on her death hold the one
-+ equal unit of the Remaining Daughters' Fund allocated to
~

such daughter as aforesaid UPON TRUST to divide the
same into two equal parts and to allocate one such equal
c
part to the remaining beneficiaries specified in Part Ill of
the Third Schedule hereunder written in equal shares and
proportions and to allocate the other such equal part to
the Beneficiaries specified in Part II of the Th.ird Schedule
D
hereunder written (including the 7 grandchildren of the
Settler therein specified) in the proportions in which the
units of the Remaining Sons' Fund are allocated to the
respective beneficiaries specified in Part II of the Third
... Schedule hereunder written as specified against their
respective names in the second column thereof and to
E
. hold and stand possessed of the respective shares which
on such division and allocation shall go to the respective
beneficiaries specified in parts II & Ill of the Third Schedule
hereunder written UPON TRUST to add the same to and
F
amalgamate the same with the respective units of the
Remaining Sons' Fund or the Remaining Daughters' Fund
(as the case may be) originally allocated to them
respectively under the provisions of the preceding clause
(9) hereof and this Clause and to hold the same
.A G
respectively upon the same respective units as those upon
which the respective original units to which they are added
and with which they are amalgamated as aforesaid are
directed to be held under the provisions of the preceding
clause 9 hereof and this clause."
H
602 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 9. Clause 11 is a residuary clause providing for the manner ·"'
in which the trust is to be applied in respect of the ultimate
beneficiaries.

ENACTMENT

B 10. The State enacted the Nizam's Trust Deeds (Validation)
Act, 1950 (for short "the 1950 Act") It received the Presidential
Assent on 22.06. 1950. Section 3 of the 1950 Act provides that 1
-
not withstanding anything contained in any other law for the time ~

being in force, trust deed mentioned in the Schedule shall be •
c valid and effectual for all purposes and shall have the force of
law. The 1950 Act underwent an amendment in the year 1951.
The trust deed in question was inserted as Item No. 7 in the
Schedule of the 1950 Act.

BENEFICIARIES
D
11. The trust deed mentions 13 beneficiaries in Part II.
Indisputably, beneficiaries at SI Nos. 1 to 5, 7, 8, 11 and 12
have died and the corpus of their respective shares, in terms of

-
the deed of trust, have devolved upon their heirs and successors
including the appellants of Civil Appeal No. 846 of 2001, following
E
stirpital succession. Beneficiaries at SI Nos. 9, 1O and 13,
however, are alive and the 6th beneficiary has died issueless.

12. So far as the beneficiaries specified in Part Ill are
concerned. they are 17 in number. The beneficiaries at SI Nos.
F 2, 4, 5, 7, 12 and 15 have died and their heirs and legal
representatives including the appellants herein have succeeded
to their units. Those at SI Nos. 1, 6, 8, 9, 10, 11, 13 and 14 have
died without any issue. The beneficiaries at SI Nos. 3. 16 and
17 are alive.
G PROCEEDINGS

13. Indisputably, the appellants filed an original petition No.
173 of 1998 in the Court of Chief Judge, City Civil Court,
Hyderabad purported to be under Sections 56 and 61 of the
Indian Trusts Act, 1882 praying for directions to the trustees to
H
NAWAB SHAQAFATH ALI KHAN & ORS. V. 603
NAWAB !MOAD JAH BAHADUR & ORS. [S.B. SINHA, J.]

execute the trust deed as per the correct interpretation of A
clauses 9, 10 and 11 of the trust deed.

14. Respondent No. 1 also filed an original application
before the Chief Judge, City Civil Court which was marked as
Original Petition No. 253of1998 seeking directions to the trustees
to execute trust deed according to the terms contained therein. B
' '

t
15. In the same year, some of the children of the remaining
~
sons and daughters who predeceased those remaining sons
and daughters who died issueless like the appellants herein
filed a suit which was marked as O.S. No. 383 of 1998 praying c
inter alia for the following reliefs:

"(1) Mandatory injunction against the Trustees to correctly
interpret and apply the provisions of clause 8 of the Trust
Deed by making all allocations and amalgamations of
Trust funds concerned therein including in the same all D
beneficiaries named in the parties 2 and 3 of Ill Schedule
irrespective of whether they predeceased the beneficiaries
dying issueless or not, and thereafter allocate their shares
to their legal heirs in accordance with law,
E
(2) Issue a perpetual injunction against the trustees
restraining them mis-interpreting or wrongly applying the
provisions of clauses 8 to 10 of the Trust Deed, or

(3) Restraining the trustees from making allocations or
amalgamations of Trust Funds concerned and making any F
payments, without giving two weeks advance notice to
plaintiffs."
16. Forty similarly placed children of the deceased sons
and daughters filed another suit which was marked as O.S. No.
.). '
540 of 1998 for declaration that they have vested rights in the G
corpus and accretion of the 'remaining sons fund' to the extent
of Rs. 2,22,99,200/-
17. In the aforementioned suit, heirs and legal representatives
of the grand children of the settler were impleaded as parties.
H
604 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 18. In the said suit, the following three issues were framed:
"1. Whether the plaintiffs are entitled for declaration in
respect of the corpus fund as prayed for?
2. Whether the plaintiffs are entitled for mandatory
B injunction against the defendants and their successor
trustees and secretary of the defendant no. 1 Trust, as
prayed for? 1

3. Whether the plaintiffs are entitled for perpetual injunction
against the defendants and their successor trustees and
c secretary of the defendant no. 1 Trust, as prayed for."
19. The aforementioned two original petitions as also the
suits were taken up for hearing together. In the said original
petitions as also the said suits a preliminary question was raised
as to whether the surviving remaining sons and daughters of
0
the Settlor are alone entitled to the corpus allotted to the
remaining sons and remaining daughters who died issueless.
The learned Judge passed a common judgment on 21.07.1999.
FINDINGS
E 20. The principal findings of the learned Judge were:
(i) "Coming back to the interpretation of sub-clause (e)
of clauses 9 and 10, it can be held that the Settlor
intended that even the children of a pre-deceased
F remaining son of a remaining daughter are entitled
to a share in the unit allocated to the remaining son
or daughter who died issueless. The reason is that,
an absurd situation would arise if the contentions of
the Trustees that surviving remaining sons and
G remaining daughters are only entitled to a share is
accepted, if the last person who die is a issueless a
remaining son and remaining daughter ... "
(ii) "A reading of the said Clause discloses that the
Settlor intended that the entire Principal Fund
H obtained by the sale of the jewellery should be handed
.J
NAWAB SHAQAFATH ALI KHAN & ORS. V. 605
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J.]

"(
over and transferred to the beneficiaries or ultimate A
beneficiaries named in the Trust Deed .... ln the same
way, the children of the remaining sons and remaining
daughters are ultimate beneficiares of the units
allocated to the respective remaining sons or
remaining daughters ... ~· B
(iii) "The argument of the Trustees, that the Children of
the remaining sons and remaining daughters are not
• ,,, beneficiaries at all and that they are owners
consequent upon the death of the remaining sons or
remaining daughters, is not contemplated by the c
Settlor, as he referred to such grand children as
"ultimate respective beneficiaries" who are entitled
to receive the main corpus itself as per the directions
in the Trust Deed in clause 11 of the Trust Deed."
(iv) " ... The Settlor directed in sub-clause 4 and 5 D
· (numbered by me) in clause 9(e) that the units
allocated to the remaining son who died issueless
~---·
shall be divided into (2) parts and to allocate one
such part to the remaining beneficiaries specified in
Part - II of the 3rd Schedule including grandchildren E
in the shares and proportions mentioned against their
respective names in the second column thereof and
to allocate the other such part to the daughters ofthe
settlor specified in part - Ill of the Third Schedule
hereunder written, in the equal shares and
proportions. Similarly, the direction is repeated for F
clause 10(e). This direction can be implemented only
if the contention of the children of .deceased
remaining sons and daughter is accepted. Then only
the units allocated to the deceased remaining sons
or remaining daughters can be distributed in shares G -
and proportions as mentioned against their
respective names in the second column thereof. If
the interpretation of Trustees and suNiving remaining
sons and daughters is accepted, this direction of the
Settlor cannot be implemented, for the reasons that H
606 SUPREME COURT REPORTS (2009] 4 S.C.R.

A consequent upon death, some of the remaining sons
and daughters, there cannot be 126 units in Part 11 or
17 units in part- Ill".
(v) " ... The Settlor did not use the word "remaining
daughters" in clause 9(e) or "remaining sons or grand
B children" in clause 10(e) ... "
21. On the plea that nothing is left to be amalgamated in
case of units of predeceased sons and daughters as the corpus •
was already given to them, the learned Judge noted:
c (a) Some of the surviving sons and daughters have also
taken the entire corpus by adopting the novel method by
means of a compromise between the life estate holder
and the remainder estate holder,
(b) Few lakhs of rupees from out of the units allocated to
D
each of the remaining son or daughter who died
wereretained by the Trustees.
The learned Judge held:
"In the result, it is held that whenever anyone of the
E remaining sons or remaining daughters, dies issueless,
the unit allocated to him or her, as the case may be, shall
. be distributed amongst the surviving remaining sons and
remaining daughters as well as the respective children of
the deceased remaining sons and remaining daughter
F and also to grandchildren shown in item 14 of the part II of
third schedule or their children as per the units allocated
to them. The surviving remaining sons and daughter and
persons shown in item 14 can only receive net income on
the amount amalgamated to their units whereas the
G. respective children of the deceased remaining sons and
remaining daughters, as the case may be, are entitled to
receive the total amount, corpus and accretions allocated
to their respective father or mother as the case may be ,
as per direction given in clauses 9 (e) and 10 (e) of the
H trust Deed."
NAWAB SHAQAFATH ALI KHAN & ORS. V. 607
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J]

22. The learned Judge issued the following directions: A
y
" ... This advice is given to the Trustees in OP 173/1998
and OP 253/1998 and this finding is given on preliminary
point in OS 383/1998 and OS 540/1998 ... "

23. Indisputably, pursuant to or in furtherance of the said B
directions, no decree was prepared in the O.S. No. 540of1998.

PROCEEDINGS BEFORE THE HIGH COURT

24. Aggrieved by and dissatisfied with the judgment and
order dated 21.07.1999, Respondent Nos. 1 and 2 in Civil c
Appeal No. 846.of 2001 and Respondent No. 2 in Civil Appeal
No. 847 of 2001 filed civil revision petitions before the High
Court under Article 227 of the Constitution of India and Section
115 of the Code of Civil Procedure. However, the purported
common order so far as it related to the preliminary issue in the D
two suits was not challenged. The High Court by reason of the
impugned judgment held:

"(i) The impugned order is the common order passed in
two O.Ps i.e., O.P. No. 173 of 1998 and O.P. No. 253 of
1998 and the two suits as preliminary issues. Although the E
order insofar as it relates to the two O.Ps. is bad for want
of necessary jurisdiction, the order in so far as it relates
to the preliminary issues in the two suits is concerned is
unquestionable on the point of jurisdiction ... "

(ii) " ... The petitioners who preferred these two revision F
petitions. have surprisingly not filed appropriate
proceedings as against the order pertaining to the two
suits. In that view of the matter, the common order becomes
unassailable except holding that the original petitions are
not maintainable." G
25. Despite the aforementioned findings,'the High Court
proceeded to consider the merit of the matter holding:

"(i) " ... The various legal pleas thus raised by the learned
counsel for the petitioners attacking the Trust deed and H
608 SUPREME COURT REPORTS [2009] 4 S.C.R.

A the Nizam's trust Deeds Validation Act and the Validation
Amendment Act are therefore not tenable and cannot be
countenanced".
(ii) " ... In both these cases, suits ought to have been filed
under Section 9 of the Civil Procedure Code before the
B appropriate courts, but not the original petitions before
the Principal Civil Court of original jurisdiction. The position
is clear and both the petitions cannot be maintained under
Section 56 and 61 of the Trusts Act. .. "
c (iii) "... The intention of the settler as discussed supra is
not to allow the property to percolate to the other persons
or to other successors either nearer or remoter except
those specified.,."
(iv)" ... As discussed by me supra, in the absence of the
D words 'specified in the schedule' there should have been
some scope for any interpretation, but in the presence of
the words 'specified in the schedule', I do not think that
there is any scope for any interpretation than the one,
which is consistent with the view taken by me above ... The
E view taken by the court below, for the above reasons, is
not correct legal and proper and is, therefore, liable to be
set aside ... "

PROCEEDINGS BEFORE THIS COURT
F 26. Appellants preferred Special Leave Petition Nos.
4372-4373 of 2000 which came up for preliminary hearing on
27.03.2000, on which date a Division Bench of this Court
ordered:
"Adjourned for two weeks as learned senior counsel for
G the respondents says that he wants to challenge the
impugned order of the High Court so far their O.P. is held
to be not maintainable."
27. Pursuant to or in furtherance of the said observations,
H the respondents in C.A. Nos. 846-847 filed special leave petitions
NAWAB SHAQAFATH ALI KHAN & ORS. V 609
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J]

against the order of the High Court and they upon grant of leave A
were marked as C.A. No. 848 of 2001 and 849 of 2001.
28. Two special leave petitions were also filed before this
Court by the respondents, questioning the correctness or
otherwise of the order dated 21.07 .1999 passed by the learned
Chief Judge, City Civil Court, Hyderabad. These were eventually B
marked as C.A. Nos. 850-851 of 2001.

..
)
SUBSEQUENT EVENTS
29. The preliminary issue in O.S. No. 540of1998 having
already been decided, the other issues framed therein which c
appeared to be consequential in nature were determined by
the Chief Judge, City Civil Court by an order dated 3.04.2000
decreeing the suit declaring that the plaintiffs have vested rights
in the corpus and accretion of the remaining sons fund and
remaining daughters fund. D
30. Indisputably, an appeal, which was marked as CCA
No. 114 of 2000, was preferred thereagainst by the trustees. A
· Civil Miscellaneous Petition, which was marked as CMP No.
11230 of 2000, has also been filed.
31. Concededly, the said appeal and the civil miscellaneous E
. .
petition are pending.
... 32. By an order dated 6.07.2000, the High Court directed
that the aforementioned decree dated 3.04.2000 of the City Civil
Court shall not be given effect to pending notice. F
33. This Court by an order dated 10.04.2000 issued
-notices in the special leave petitions filed by the respondents ..
34. By an order dated 21.01.2000, special leave to appeal
,... has been granted, observing:
, G
"pending the disposal of the appeal, the High court may
proceed to hear and dispose of CCA No. 114 of 2000 but
it shall do so independently and uninfluenced by the
judgment and order under challenge insofar as it deals
with the merits." H
610 SUPREME COURT REPORTS [2009] 4 S.C.R.

A SUBMISSIONS

35. Mr. P.P. Rao, le;;irned senior counsel appearing on
behalf of the appellant, would raise the following contentions :

(i) Whether in view of the fact that the civil revision
B applications were filed against the order dated
21.07.1999 passed in original applications which
having been found to be not maintainable, the High
~
Court should have held that the civil revision petitions
were also not maintainable.
...

c (ii) Respondents having not filed any appeal or civil
revision application against the order dated
3.04.2000 passed in the original suits filed by the
appellants, the respondents would be deemed to
have abandoned the remedies available to them.
D
(iii) The High Court could not have entered into the merits
of the matter as no appeal or civil revision application
having been filed against the common order passed
in original suit Nos. 348 and 540 of 1999, they
attained finality and, thus, the civil revision
E applications filed against the order dated 21.07.1999
passed against the applications were barred by the
principles of res judicata. Reliance in this behalf has
been placed on C. V Rajendran and Another v. N. M.
Muhammed Kunhi ((2002) 7 SCC 447].
F
(iv) In any event, interpretation of the deed of trust being
a question of law, the civil revision application under
Section 115 of the Code of Civil Procedure or under
Article 227 of the Constitution of India was not
maintainable.
G
(v) The preliminary issue having the force of a decree,
an appeal lay thereagainst and, thus, a revision
application under Section 115 of the Code of Civil
Procedure and/ or Article 227 of the Constitution of
H India was not maintainable.
NAWAB SHAQAFATH ALI KHAN & ORS. V. 611
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J.]

(vi) As the civil revision application in terms of Section A
115 of the Code of Civil Procedure was not
maintainable, the provisions of Article 227 of the
Constitution of India could not have been taken
recourse to. Reliance in this behalf has been placed
on Ouseph Mathai and Others v. M. Abdul Khadir B
[(2002) 1 sec 319]

(vii) No special leave petition is maintainable against the
original order dated 2.1.07 .1999 of the Chief Judge,
City Civil Court, Hyderabad as by reason thereof the
High Court has been by-passed. Reliance in this C
behalf has been placed on Chandi Prasad Chokhani
v. State of Bihar [(1962) 2 SCR 276 and
Taherakhatoon (DJ By LRs. v. Salambin
Mohammad [(1999) 2 SCC 635].
D
(viii) In view of the finding of the High Court that the original
applications under the Indian Trusts Act were not
maintainable, it acted illegally and without jurisdiction
in entering into the merit of the matter and, thus, the
impugned judgment is a nullity.
E
(ix) On merits, the High Court committed a serious error
in passing the impugned judgment insofar as it failed
to construe the principles of construction of a trust
deed by placing itself in the armchair of the settlor.
(x) The settlor having intended to provide some property F
not only to the sons and daughters andthe grand-
children who are alive could not have intended to
deprive heirs and legal representatives of those who
had died issueless.
G
(xi) The trustees in implementing the deed of trust could
not have ig_nored a well thought of scheme of the
settlor in terms whereof he intended to make no
discrimination between the heirs and legal
representatives and by reason whereof, he intended H
612 SUPREME COURT REPORTS [2009] 4 S. C.R.

A to make provisions not only for the children and
grand-children who were then alive but also for the
grand-children and great-grand children who were
yet to be born.
(xii) From a perusal of the deed of trust, it would be evident
B
that wherever the settlor intended to grant special
benefit either to a heir or to a trust, he having
specifically provided therefor. Having regard to the
fact that the heirs and legal representatives of the
deceased's son or daughter having not been
c excluded, the High Court could not have interfered
with the well-reasoned findings of the Chief Judge,
City Civil Court.
(xiii) The principle in the original applications as also the
o suits being primarily directed against the trustees,
the heirs and legal representatives of the daughters
were required to be impleaded.
36. Mr. Dushyant A. Dave, learned senior counsel
appearing on behalf of the respondents, and Mr. Rajendra
E Choudhary, learned counsel appearing on behalf of the trustees,
on the other hand, would contend:
(i) the trust deed being a deed of gift based on
inheritance or otherwise, the application before the
F City Civil Court was not maintainable.
(ii) The settlor having executed the Will in three parts.
Each part dealing with specific matters contained in
the Second Schedule, the Third Schedule and the
Residuary and having provided for the specific
G manner in which the benefit is to be conferred as
also mode of discharge, the High Court must be
held to have justified in arriving at a finding in regard
to the intention of the settlor.
H (iii) The settlor having used the term "allocate" in a number
NAWAB SHAQAFATH ALI KHAN & ORS. V 613
NAWAB IMDAD JAH BAHADUR & ORS. [S.S. SINHA, J]

of places, the construction which would be contrary A
to or inconsistent therewith should be avoided.
(iv) The deed of trust having operated during the period
1952 to 1958 to the satisfaction of all those
beneficiaries who have died issueless after 1958,
the heirs and legal representatives could not have B
been given any benefit as by that time the corpus of
... the trust had clearly been divided.
-i'
(v) As clauses 9(e) and 10(e) of the deed specifically
provided that when a beneficiary dies, his children c
would get the same; the children of beneficiaries
who have already been pre-deceased cannot be held
to have derived any interest in the corpus of trust or
otherwise.
(vi) So far as the daughters are concerned, the point of D
devolution of interest should be kept in mind as in
case of death of one daughter her share goes to
children but!he same would not be the position when
the daughter of a daughter dies.
(vii) Having regard to the rival contentions of the parties
E
and the decisions of the Trial Judges whereby
~ discretionary jurisdiction in terms of Sections 56 and
61 read with Section 34 of the Indian TrustsActwhich
have limited application having not been exercised,
the High Court should not have interfered therewith. F

(viii) The findings on the suit being subject to passing of
a decree, a civil revision application against the order
dated 21.07 .1999 was maintainable.
,...
(ix) The trust deed should be construed in a manner so G
as to achieve a certainty, as provided for under
Section 6 of the Indian Trusts Act read with illustrations
(c) and (d) appended thereto.
(x) Respondents being the children of the predecessor-
H
614 SUPREME COURT REPORTS [2009] 4 S.C.R.

A in-interest and daughters having got the benefits
cannot claim any benefit once over again on the
ground that they were also entitled as heirs and legal
representatives of the pre-deceased sons and
daughters who had died issueless.
B (xi) Special leave having been granted, in the peculiar
facts and circumstances of this case, this Court
should exercise its discretionary jurisdiction under ...
Article 139A of the Constitution of India and render
...
a final decision in the matter keeping in view the
c passage of time.
(xii) Article 136 of the Constitution of India should be
widely construed so as to take into consideration a
situation of this nature where a litigation based on
construction of a deed may finally be adjudicated
D
upon by this Court.
(xiii) As no decree had been passed in the suit, it would
not be correct to contend that the preliminary question
raised would be a preliminary issue as envisaged
E under Order XIV, Rule 1 of the Code of Civil
Procedure.
(xiv) Once a leave has been granted, any decision
rendered thereon could attract the doctrine of merger
as has been held by this Court in Kunhayammed
F and Others v. State of Kera/a and Another [(2000)
6 sec 359].
OUR FINDINGS
37. The learned Trial Judge and the High Court adopted
G two different principles of interpretation of the trust deed.
Whereas the learned Trial Judge applied the principle of
contextual interpretation, the High Court applied the principle of
literal interpretation.
38. It is, however, not in dispute that an appeal as also civil
H
-
NAWAB SHAQAFATH ALI KHAN & ORS. V. 615
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J.J

.Y revision application are pending before the High Court. We could A
have entered into the merit of the matter to determine the
question as regards interpretation of the Will one way or the
other but keeping in view the fact that the aforementioned
proceedings are pending before the High Court, we as at
present advised are not inclined to do so.
-· 39. The High Court opined that the civil revision applications
B

.... filed against the order dated 21.07.1999 were not maintainable .
.. It is also not in dispute that no appeal was preferred against the
order dated 3.04.2000.
'I c
40. The findings rendered in the order dated 21.07.1999
did not amount to a decree. The suit was not finally disposed of
thereby. No appeal lay against a mere finding. An appeal would
be maintainable only when a decree is passed. The matter might
have been otherwise if a decree was to be recorded formally
-+ D
pursuant to the decision so rendered. It was not considered to
be even an order passed in terms of Order XIV, Rule 2 of the
Code of Civil Procedure.
41. Once the civil revision applications were held to be
not maintainable ordinarily the High Court should not have E
entered into the merit of the matter.
~ 42. It is true that preliminary issues were decided by an
order dated 21.07.1999. It.is, however, not in dispute that as
several other issues were framed including the additional issues,
which we have noticed hereinbefore, in terms whereof the suit F
was ultimately decreed by a judgment and order dated
3.04.2000, an appeal thereagainst has been filed. A civil
miscellaneous application has also been filed.
,,,. 43. A decree was not passed pursuant to or in furtherance G
of the order dated 21.07.1999. It may be true that in terms of
Section 105 of the Code of Civil Procedure when an appeal
against the final decree is passed, legality of the said order
could be challenged in the appeal. Only because a civil revision
application has not been filed, the same, in our opinion, would
H
616 SUPREME COURT REPORTS [2009] 4 S.C.R.

;
A not attract the principle of res judicata as an appeal from the ...,.
final decree could still be maintained.
44. In C. V Rajendran (supra). while holding that the
principle of res judicata applies in different stages of the same
proceedings, it was held:
8
"... Here what is sought to be reagitated is not really the
order of remand but the order deciding a germane issue
..
which was allowed to become final at an earlier stage of .,
the same suit. The principle of res judicata applies as
c
•
between two stages in the same litigation so that if an
issue has been decided at an earlier stage against a
party, it cannot be allowed to be reagitated by him at a
subsequent stage in the same suit or proceedings. This
position is laid down in Hope Plantations Ltd. v. Taluk
Land Board to which one of us (Syed Shah Mohammed
D .+·
Quadri, J.) was a party."
!:I
45. However, as noticed hereinbefore, in this case, an
appeal from a final decree is maintainable.
'
·~;

46. Ordinarily again a special leave petition would not be ~
E entertained directly from a judgment and order of the Chief
Judge, City Civil Court, Hyderabad. [See Chandi Prasad
Chokhani (supra)] >
4 7. Maintainability of the civil revision application has been
F questioned inter alia on the premise that an interpretation of a
deed involves a question offact and not a question of jurisdiction.
48. Mr. Rao has placed strong reliance in this behalf on Ml
s. D.L.F Housing and Construction Company (P) Ltd., New
Delhi v. Sarup Singh and Others [(1969) 3 SCC 807]. In that
G case, it was held: ...
"5. The position thus seems to be firmly established that
while exercising the jurisdiction under Section 115, it is
not competent to the High Court to correct errors of fact
however gross or even errors of law unless the said errors
H
NAWAB SHAQAFATH ALI KHAN & ORS. V. 617 '
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J.]

have relation to the jurisdiction of the Court to try the dispute A
itself. Clauses (a) and (b) of. this section on their plain
reading quite clearly do not cover the present case. It was
not contended, as indeed it was not possible to contend,
that the learned Additional District Judge had eifner
exercised a jurisdiction not vested in him by law or had B
failed to exercise a jurisdiction 'so vested in him, in
recording the order that the proceedings under reference
be stayed till the decision .of the appeal by the High Court
in the proceedings for specific performance of the
agreement in question. Clause (c) also does not seem to c
apply to the case. in hand. The words "illegally" and "with
material irregularity" as used in this clau.se do not cover
either errors of fact or of law; they do not refer to the
decision arrived at but merely to the manner in which it is
reached. The errors contemplated by this clause may, in
0
our view, relate either to breach of some provision of law
or to material defects of procedure affecting the ultimate
decision, and not to errors either of fact or of law, after the
prescribed formalities have been complied with. The High
Court does not seem to have adverted. to the limitation -
imposed on its power under Section 115 of the Code. E
Merely because the High Court would have felt inclined,
had it dealt with the matter initially, to come to a different
conclusion on the question of continuing stay of the
reference proceedings pending decision of the appeal,
could hardly justify interference on revision under Section F
115 of the Code when there was no illegality or material
irregularity committed by the learned Additional District
Judge in his manner of dealing with this question. It seems
to us that in this matter the High Court treated the revision
virtually as if it was an appeal." G
49. Reliance has also been placed by Mr. Rao on Ouseph
Mathai (supra) wherein it was held:
" ... In fact power under this article casts a duty upon the
High Court to keep the inferior courts and tribunals within H •
618 SUPREME COURT REPORTS [2009] 4 S.C.R.

A the limits of their authority and that they do not cross the
limits, ensuring the performance of duties by such courts
and tribunals in accordance with law conferring powers
within the ambit of the enactments creating such courts
and tribunals. Only wrong decisions may not be a ground
B for the exercise of jurisdiction under this article unless the
wrong is referable to grave dereliction of duty and flagrant
abuse of power by the subordinate courts and tribunals
resulting in grave injustice to any party."
50. A civil revision application although must necessarily
C having regard to the terminologies used in Section 115 of the
Code of Civil Procedure involve the question of jurisdiction, the
question which would arise is as to what are the jurisdictional
questions. A jurisdictional question may arise not only when a
court acts wholly without jurisdiction but also in a case where
D jurisdictional errors are committed while exercising jurisdiction. 4•
There are various facets of 'jurisdictional errors'. Taking into
consideration any irrelevant fact or non-consideration of a
relevant fact would involve jurisdictional issue. This aspect of
the matter has also been considered in Ajantha Transports (P)
E Ltd., Comb a tore v. Ml~. TV. K. Transports, Pulampatti,
Combatore District [(1975) 1 SCC 55] in the following terms:
"27. Relevancy or otherwise of one or more grounds of
grant or refusal of a permit could be a jurisdictional matter.
A grant or its refusal on totally irrelevant grounds would be
F ultra vires or a case of excess of power. If a ground which
is irrelevant is taken into account with others which are
relevant, or, a relevant ground, which exists, is unjustifiably
ignored, it could be said to be a case of exercise of power
under Section 47 of the Act, which is quasi-judicial, in a
G manner which suffers from a material irregularity. Both will
be covered by Section 115 of the Civil Procedure Code."
51. It is not correct to contend that even if the revisional
jurisdiction is not available, a remedy in terms of Articles 226
and 227 of the Constitution of India would also not be available
H
NAWAB SHAQAFATH ALI KHAN & ORS. V. 619
NAWAB IMDAD JAH BAHADUR & ORS. [S.B. SINHA, J.]

~
in law. This aspect of the matter has been considered by this A
Court in Surya Dev Rai v. Ram Chander Rai and Others [(2003)
6 SCC 675] opining that not only the High Court can exercise
its sµpervisory jurisdiction for the purpose of keeping the
subordinate courts within the bounds of its jurisdiction as
envisaged under Article 227 of the Constitution of India; even a B
writ of certiorari can be issued wherefor the subordinate or
inferior courts would be amenable to the superior courts
exercising power of judicial review in terms of Article 226 thereof.
t-
52. Strong reliance has been placed by Mr. Rao on a decision
of this Court in Taherakhatoon (supra) wherein it was opined c
that the discretionary jurisdiction of this Court under Article 136
of the Constitution of India can be denied even after grant of
leave unless exceptional and special circumstances exist that
substantial and grave injustice has been done. It was held:
·+ D
"20. In view of the above decisions, even though we are
now dealing with the appeal after grant of special leave,
we are not bound to go into merits and even if we do so
and declare the law or point out the error - still we may
not interfere if the justice of the case on facts does not
require interference or if we feel that the relief could be E
moulded in a different fashion ... "
53. There is no quarrel with the aforementioned proposition,
but, as has been noticed in that case itself the discretionary
jurisdiction is to be exercised keeping in view the fact and F
circumstance of each case and no hard and fast rule can be
laid down therefor_
54. There is another aspect of the matter which cannot
also be lost sight of. Applications were filed before the District
.... Court also under Sections 56 and 61 of the Indian Trusts Act G
praying for issuance of directions to the trustees. Such directions
if issued ordinarily would be binding on them. The trustees,
therefore, would be entitled to take recourse to a remedy
available before a superior court, if they are aggrieved by such
direction. If the High Court had the jurisdiction to entertain either H
620 SUPREME COURT REPORTS [2009] 4 S.C.R.

A an appeal or a revision application or a writ petition under
Articles 226 and 227 of the Constitution of India, in a given case
it, subject to fulfillment of other conditions, could even convert a
revision application or a writ petition into an appeal or viceversa
in exercise of its inherent power. Indisputably, however, for the
B said purpose, an appropriate case for exercise of such
jurisdiction must be made out.

55. Furthermore, this trust deed is not an ordinary one. It is
a part of a statute. In the case of a wrong interpretation of a
statute relating to jurisdiction of a court enabling it to issue a
C direction, it would amount to a jurisdiction error. In that sense,
the courts were required to exercise their jurisdiction with more
care and caution.
56. For the reasons aforementioned, we are of the opinion
that interest of justice would be subserved if the matters are
0
directed to be considered afresh by the High Court together
with the pending appeal and miscellaneous applications. The
special leave petitions filed before us against the order dated
21.07.1999 shall be returned to the petitioners thereof so as to
E enable them to re-file the same before the High Court which
may also be considered on its own merits. We pass these
directions in exercise of our power under Article 142 of the
Constitution of India. These appeals are disposed of
accordingly.
F 57. For the aforementioned observations and directions,
we would requestthe High Court to consider the desirability of
disposing of the matter as expeditiously as possible. No costs.

R.P. Appeals disposed of.