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A. Venkitaswami Chettiar and ors. Vs. Sekkuti Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtChennai
Decided On
Reported in(1936)71MLJ580
AppellantA. Venkitaswami Chettiar and ors.
RespondentSekkuti Pillai
Cases ReferredPerichiappa Chettiar v. Nachiappan
Excerpt:
.....of construction, we fail to see why, when there are several decisions in respect of several subject-matters, the decree embodying those decisions should, by some fiction, be regarded as one and entire. 5. two further illustrations will serve to bring out clearly all that is involved in the argument. not infrequently are attempts made (attended, as is well known, with unfortunate results) to read into the privy council judgments, much more than is to be found in them. this is one such attempt, and we are perfectly clear that it ought not to be allowed to succeed. gopendra lal air1927cal543 ,already cited, that the judgment of the privy council has the effect of overruling the principle on which the well-known case of raja sree nath roy bahadur v. this appears clearly from more than..........argument is that the plaintiff can, taking advantage of the high court's partial reversal, file an appeal questioning every one of the concurrent findings. again, let us suppose, that upon a man's death, his heir files a suit for recovery of six items of movable property. the defendant denies that he took possession. the trial court on evidence finds that the defendant's case is true in regard to items 4 to 6 and passes a decree in respect of items 1 to 3 alone. the high court reverses the trial court's decree as to item 4 and upholds it as regards the remaining items. the argument is, that the plaintiff can file an appeal for attacking the concurrent findings in respect of items 5 and 6; the defendant can likewise claim the right of appeal for getting rid of the concurrent findings as.....
Judgment:

Venkatasubba Rao, J.

1. This is an application by the plaintiff for leave to appeal to His Majesty in Council. One Sandanam Pillai died in 1919, leaving his widow the fourth defendant and two sons, the first and the second defendants. The third defendant is the son of the first. The suit was brought on a mortgage bond executed in 1923 by the first and fourth defendants. The trial Court passed a decree for the full amount claimed, against the executants of the bond, namely, defendants 1 and 4. As regards defendants 2 and 3, they were held liable only for a fraction of the debt. The plaintiff filed an appeal to the High Court and the result of it was, that the lower Court's decree against defendants 1 and 4 was confirmed; the third defendant's share in the joint property was held liable almost for the full amount claimed, that is to say, so far as he was concerned, the lower Court's decree was practically reversed; lastly, in regard to the second defendant, the High Court confirmed the first Court's decree. The plaintiff's present application is for leave to appeal to His Majesty in Council against the High Court's judgment, in so far as his claim against the second defendant was disallowed. The principal question to be determined is, whether the High Court's judgment is an affirming one or not.

2. It is not disputed that the requirement of the section as regards the value of the subject-matter, both of the suit and of the appeal, is fulfilled. It has been urged that some substantial question of law is involved in the appeal, but we are decidedly of the opinion that this contention cannot prevail. The second defendant was a minor when the debt sued on was incurred by his brother, the first. One of the points urged in the appeal was, that the second defendant should be held to have ratified the transaction after he had become a major. Applying certain well-settled legal principles to the facts of the case, the High Court rejected that contention and we are clearly of the opinion, as already stated, that the appeal raises no question of law, which can be considered substantial within the meaning of Section 110, Civil Procedure Code.

3. The main question then is, whether when the intended appeal is directed as against the portion of the decree which pertains to the second defendant, the High Court's decree should be regarded as one of affirmance or of reversal. The applicant's contention shortly is, that where the decree, as passed, is on its face single, it should always be regarded as one and entire, irrespective of its dealing with several subject-matters or disposing of claims against several defendants. The argument is put thus : taking the High Court's decree as a whole, has it or has it not varied the lower Court's decree? So far as the third defendant is concerned, it has undoubtedly done so. Therefore it is immaterial that the decree as against the second defendant has been confirmed. This contention as we shall presently show, is hardly sound in principle and would not have been put forward, it is conceded, but for the supposed effect of the decision of the Judicial Committee in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : L.R. 51 Cal. 969 . As a question of construction, we fail to see why, when there are several decisions in respect of several subject-matters, the decree embodying those decisions should, by some fiction, be regarded as one and entire. Leaving over the question of parties for the moment, we shall first deal with the contention as it bears on the question of various subject-matters. Suppose there is a suit filed in respect of ten loans of ten different dates representing ten different transactions. The trial Court passes a decree in respect of the first loan, but negatives the plaintiff's claim in regard to the other nine alleged loans. The High Court reverses the trial Court's decree as to the first loan but maintains it as to the remaining loans. The argument is that the plaintiff can, taking advantage of the High Court's partial reversal, file an appeal questioning every one of the concurrent findings. Again, let us suppose, that upon a man's death, his heir files a suit for recovery of six items of movable property. The defendant denies that he took possession. The trial Court on evidence finds that the defendant's case is true in regard to items 4 to 6 and passes a decree in respect of items 1 to 3 alone. The High Court reverses the trial Court's decree as to item 4 and upholds it as regards the remaining items. The argument is, that the plaintiff can file an appeal for attacking the concurrent findings in respect of items 5 and 6; the defendant can likewise claim the right of appeal for getting rid of the concurrent findings as regards items 1 to 3. The effect of this contention is that although the items are distinct, the case in regard to each of them is distinct, the findings are distinct, the accident of there being a partial reversal enables either party to challenge the findings, as to which both the Courts are agreed. This is a startling result, and the, question is whether there is anything in the wording of the section which compels us to uphold a contention of this sort.

4. We shall next examine the applicant's contention as it bears on the question of parties. First, let us for the purpose of illustrating the point, vary the facts of the present case. Instead of the second defendant having won (as he has done) in both the Courts let us suppose that he had lost the suit by a concurrent finding. According to the argument, the reversal of the decree so far as the third defendant is concerned, gives the second defendant a right to appeal. Then again, let us take the facts as they are. The effect of the contention is, that even defendants 1 and 4, against whom the decree has been confirmed, can prefer an appeal. This contention, if accepted, would lead to anomalies of the most serious kind.

5. Two further illustrations will serve to bring out clearly all that is involved in the argument. Where the trial Court passes a decree against a debtor and his surety, but the appellate Court exonerates the surety, on the ground that there has been a variation of the contract without his consent, the debtor is on this contention enabled by reason of the part-reversal of the decree, to file an appeal and attack the concurrent finding. Again, for money borrowed by A, the trial Court passes a decree against A and B on the ground that B was A's partner but rejects the claim against C and D, finding that they were not his partners. If the appellate Court reverses the trial Court's finding so far as C is concerned, it will be open to the plaintiff (on this contention) to attack the concurrent finding that D was not a partner; B will be likewise enabled to get rid of the finding as against himself, though that finding also is a concurrent finding.

6. Not a single case decided previous to Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : L.R. 51 Cal. 969 , on which the applicant so strongly relies, lends the slightest support to this view. On the strength of that Privy Council ruling, an argument similar to the present one was in a recent case put forward; but a Bench of the Calcutta High Court repelled it with great force, observing that:

The enormity of the opposite view is so very great that a far more clear and express pronouncement of the Judicial Committee would be necessary to-uphold it. Bibhootibhooshan Datta v. Sreepati Datta. I.L.R (1934) 62 Cal 257.

7. We, with great respect, entirely agree. There, it was held that where the appellate decree modifies the original decree upon a single point and that completely in the applicant's favour, so that he has no further grievance in that matter, he cannot, because of that modification, have a right to appeal on other points on which Courts have concurred (see p. 260). To the same effect is a decision of another Bench reported in Narendra Lal v. Gopendra Lal : AIR1927Cal543 . Where the lower Court granted a certain share and the High Court increased it further, the plaintiff cannot, without showing a substantial question of law, have a right to litigate upon other points, upon which both the Courts have been in agreement. What is to be regarded, according to both these cases, is not the decision as a whole, but the decision as it affects the subject-matter in dispute, and we think this is the proper test. The right way of construing Section 110 is to read the words 'decree or final order' in Clause (3) in conjunction with, and to treat them as relating to 'the subject-matter' mentioned in Clause (1). The authorities on this subject have been so fully adverted to in the two cases mentioned above, that no useful purpose will be served by our covering the same ground.

8. Now, turning to Annapurnabai's case does it really support the petitioner's contention? There a person died leaving'two widows. The plaintiff claimed to have been adopted by the senior widow. The first defendant was the junior widow; the second defendant claimed to be her adopted son. The plaintiff denied the second defendant's adoption and both the defendants the plaintiff's adoption. In the suit, the plaintiff claimed certain property. Not only did the two defendants deny, as already stated, his adoption but the first defendant claimed for herself maintenance at Rs. 3,000 per annum. The District Judge held that the plaintiff's adoption was proved and that the adoption alleged by defendant No. 2 was not. He held further that the plaintiff was bound to provide maintenance for defendant No. 1 at the rate of Rs. 800 per annum. On appeal to the Court of the Judicial Commissioner, the decree was modified by the maintenance being increased from Rs. 800 to Rs. 1,200 per annum; in other respects the decree was confirmed. Special leave to appeal was applied for by defendants 1 and 2. The petitioners' counsel is reported to have argued,

Having regard to the concurrent findings the petitioners desire to appeal only with regard to the amount of the maintenance.

9. Their Lordships, holding that the petitioners had a right of appeal, observed that the appeal should be limited to the question as to the maintenance allowance. The respondent was unrepresented and their Lordships disposed of the matter in two brief sentences. It is difficult to believe that the order was intended to be a considered pronouncement upon a subject of such great importance. Indeed, there is reason to think, in view of the difference in the wording: of the order as reported in the Volume of the Indian Appeals and that of the Indian Law Reports, Calcutta, that their Lordships did no more than grant special leave, observing that the petitioners had a right of appeal. Is it to be inferred that the Judicial Committee left it open to the defendants to attack the concurrent finding as regards the plaintiff's adoption? Is it to be further held that their Lordships, without saying so, abrogated the principle, which till then, the Indian Courts had, without question, applied? Not infrequently are attempts made (attended, as is well known, with unfortunate results) to read into the Privy Council judgments, much more than is to be found in them. This is one such attempt, and we are perfectly clear that it ought not to be allowed to succeed.

10. It must be admitted, as Rankin, C.J., observes in Narendra Lal v. Gopendra Lal : AIR1927Cal543 , already cited, that the judgment of the Privy Council has the effect of overruling the principle on which the well-known case of Raja Sree Nath Roy Bahadur v. The Secretary of State for India in Council 8 C.W.N. 294, rested. That arose under the Land Acquisition Act and the applicant claimed Rs. 77,000 odd. The Judge granted him about Rs. 28,000 and the High Court on appeal increased the amount by Rs. 7,000. The plaintiff applied for leave to appeal to the Judicial Committee, which was refused. The line of reasoning seems to have been, that in regard to the balance of the plaintiff's claim, namely, Rs. 42,000, both the Courts agreed in disallowing it and the High Court's judgment should therefore be deemed to be an affirming one. This view, as already stated, can no longer prevail; but it must be observed and that is very important, that that case comprised only one subject-matter, namely, the amount of compensation claimed. The Privy Council ruling is authority for the position, that if &s; regards the subject-matter in dispute, the appellate Court has varied the lower Court's decision, the appellate decree is not an affirming one; incidentally this statement involves that it makes no difference, whether the lower Court's decree has been varied, to the prejudice of the applicant, or in his favour.

11. There are in some cases (to which it is unnecessary to refer) observations, which seem to lend support to the applicant's contention, with which, with great respect, we disagree. There is, however, one case of our Court which requires special notice. Perichiappa Chettiar v. Nachiappan (1930) 35 L.W. 206. That was a suit for an account against an agent, the claim having been valued at Rs. 40,000. The first Court passed a decree for about Rs. 5,600; the result of the High Court's decree was that the amount awarded to the plaintiff was reduced to about Rs. 2,000. He applied for leave to appeal. The argument negativetl by the learned judges was, that there should be deemed to be as many subject-matters as there were items in dispute. This appears clearly from more than one passage in the judgment of Anantakrishna Aiyar, J. The learned Judge observes:

On behalf of the second defendant (respondent in this petition), his learned Advocate argued that the question in dispute between the parties related really to various items in the account rendered by the agent, that the value of none of the items exceeded Rs. 10,000. (P. 210)

and again

Further, in a suit for an account by the 'principal against his agent, it could not, in our opinion, be said that each objection raised by the plaintiff or the defendant to the commissioner's report is a different subject-matter (P. 126)

12. This is precisely what we have been trying to show; there is a distinction between the decree taken as a whole and the several decisions in respect of the various subject-matters comprised in that decree. When a general account is claimed by an agent, the question is, is there a single subject-matter or are there as many subject-matters as there are items in dispute? This case decides that the subject-matter is single and cannot be split up. It is unnecessary in this case to express any opinion on this matter, but the observations of the learned Judges in regard to other matters such as the effect of the Privy Council decision in Annapurnabai's case (1924) L.R. 51 IndAp 319 : I.L.R. 51 Cal. 969 are, we must point out with great respect, obiter.

13. In the result, the plaintiff's application fails and is dismissed with costs.

C.M.P. No. 6794 of 1932.

14. This application is made by the first defendant in his character as the third defendant's representative, for leave to appeal against the decree of the High Court in so far as it affects the third defendant. The application is not opposed. The High Court's decree, to the extent to which it affects the third defendant, is a reversing one; further, the requirement of Section 110, Civil Procedure Code, in regard to the value of the subject-matter is fulfilled. Leave is granted.


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