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Saraswathi Ammal and anr. Vs. Rajagopal Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 7933 of 1949
Judge
Reported inAIR1952Mad81; (1951)2MLJ63
ActsCode of Civil Procedure (CPC) , 1908 - Sections 109 and 110 - Order 41, Rule 35 - Order 49, Rule 3
AppellantSaraswathi Ammal and anr.
RespondentRajagopal Ammal
Appellant AdvocateT.V. Muthukrishna Aiyar, ;P.N. Appuswami Aiyar, ;S.V. Gopalakrishna Aiyar and ;K. Vaitheeswaran, Advs.
Respondent AdvocateS. Ramachandra Aiyar, Adv.
DispositionApplication allowed
Cases ReferredPethu Reddiar v. Rajambu Ammal
Excerpt:
code of civil procedure (act v of 1908), sections 109 and 110-- application for leave to appeal to federal court filed before constitution coming into force--treated as one for leave to append to supreme court--governed by the law as it stood on date of application;practice--one suit--several appeals by different partices--to be disposed of together--only one decree to be drafted;appeal to supreme court--value, calculation of--civil procedure code, sections 109 and 110--scope of--valuation--appeal --result of all appeals in same suit to high court to be taken together; where appeals to the high court were disposed of and the application for leave to appeal was filed before 26th january 1950, on which date the constitution of india came into force, the provisions of section 109 and 110 of.....1. this application was originally filed for leave to appeal to the federal court against the decree & judgment in a.s. no. 625 of 1945 & a. s. 200 of 1946 on the file of this court, & has now to be treated as an application for leave to appeal to the supreme court. these two appeals arose out of a suit o. s. 35 of 1944 filed in the subordinate judge's court, tiruhelveli, in the following circumstances. one kanakasabapathi pillai died intestate on 24-8-1942 leaving behind him his wife gomathi & two daughters rajagopala ammal & saraswathi ammal. after kanakasabapathi's death his widow succeeded to all his properties, movable & immovable, including a flourishing bus transport business. on 4-11-1943 gomathi purported to execute a sale deed of 32 buses, their accessories & a charcoal shed.....
Judgment:
1. This application was originally filed for leave to appeal to the Federal Court against the decree & Judgment in A.S. No. 625 of 1945 & A. S. 200 of 1946 on the file of this Court, & has now to be treated as an application for leave to appeal to the Supreme Court. These two appeals arose out of a suit O. S. 35 of 1944 filed in the Subordinate Judge's Court, Tiruhelveli, in the following circumstances. One Kanakasabapathi Pillai died intestate on 24-8-1942 leaving behind him his wife Gomathi & two daughters Rajagopala Ammal & Saraswathi Ammal. After Kanakasabapathi's death his widow succeeded to all his properties, movable & immovable, including a flourishing bus transport business. On 4-11-1943 Gomathi purported to execute a sale deed of 32 buses, their accessories & a charcoal shed which formed part of the Bus business to K. Ramaswami Dass, the husband of Saraswathi Ammal. On the same day, she executed a deed of settlement under which she dedicated about 25 items of immovable property for the maintenance & performance of 'Guru pooja' every day at the 'Samadhi' of her husband & for conducting 'Annadhanam' on his death anniversary every year. Out of these items seventeen had been inherited by her from her husband, while eight of them were purchased by her. Gomathi died on 7-3-1944 & her two daughters became entitled to the properties left by Kanakasabapathi as well as Gomathi. Soon after her death Rajagopala Ammal filed the suit for partition of properties movable & immovable, described in several schedules to the plaint. We are concerned only with Schedules I, II & III-c. There were two defts. Her sister Saraswathi Ammal was the first & the second deft, was Saraswathi Animal's husband. Schedule I comprised the buses, etc., which had been sold by Gomathi to deft. 2 in 1943 & the plff. attacked the sale as a sham & nominal transaction & brought about by fraud & undue influence practised upon Gomathi by the defts. In respect of Schedule II her case was that all the 25 items belonged to & formed part of Kanakasabapathi's estate & the endowment in favour of the 'Samadhi' & 'Annadanam' was totally illegal & invalid. Five items described in Schedule III-c (items 1 to 5) were claimed by her though the sale deeds in respect of these properties stood in the name of her sister, deft, l on the ground that they were purchased with the moneys belonging to the estate of her deceased father. The suit was tried by the learned Subordinate Judge of Tirunelveli who passed a preliminary decree on 5-11-1945. He held that the sale of Schedule I properties to deft. 2 was sham, nominal & brought about by fraud & undue influence & therefore the properties were partible. With reference to Schedule II be held that all the 25 Items, covered by the settlement deed formed part of the estate of Kanakasabapathi. He held that the dedication to the 'Samadhi' was unlawful, but the dedication for 'Annadanam' was valid. He therefore confirmed the settlement deed in respect of items 1 to 17 & item 25 & declared that items 18 to 24 were available for partition. With regard to Schedule III-c, the learned Judge held that the consideration for the sales proceeded from the estate of Kanakasabapathi & hence they were partible. The defts. 1 & 2 filed an appeal to the High Court, A. S. No. 625 of 1945. The plff. also filed an appeal A. S. No. 200 of 1946. Both the appeals were heard together by a Division Bench of this Court & disposed of by a common judgment on 12-4-1949. This Court confirmed the finding of the learned Judge as regards Schedule I properties. So far as the properties in Schedule II were concerned, this Court held that the dedication completely failed in respect of all the items covered by the settlement deed & therefore held that all the 25 items of Schedule II were partible. This court agreed with the lower Court as regards Schedule III-c properties. In pursuance of this judgment a decree was made, the material part of which runs thus: "1. That for the first para of the lower Court's decree declaring the properties available for partition & directing division of the properties including the properties in Schedule I & the income from the bus concern, & for Clauses 1 to 3 of the decretal portion of the lower Court's decree regarding moneys payable to the plff. & deft. 1, the following clauses be & hereby are substituted, namely:

"This Court doth order & declare that the properties available for partition are those mentioned in plaint I Schedule all the properties set out in plaint Schedule II & items 1 to 5 in plaint Schedule III-c & this Court doth order & decree that the aforesaid properties except the properties in plaint I Schedule be divided in two equal shares & one such share be allotted to the plff. & the other allotted to deft. 1 & that as regards the properties in plaint I Schedule, if, before the final decree is passed, the plff. & deft. 1 come to an agreement which would enable the bus service to be operated as a going concern for the benefit of both of them, if otherwise lawful, be given effect to, but that otherwise the business be disposed of in accordance with the provisions of the Partition Act & the plff. be given half share of its value & deft. 1 be given the other half share.

II. That the decree of the lower Court in other respects, that is, Clauses 4 to 10 of the decretal portion do stand & be & hereby is confirmed & these appeals to that extent be & hereby are dismissed." It is against this decree that the petitioners in the application desire to file an appeal to the Supreme Court. They confined their appeal to the properties in Schedule II & items 1 to 5 of Schedule III-c.

2. As the appeals in this Court were disposed of & the application for leave to appeal was filed before the coming into force of the Constitution, the provisions of Sections 109 & 110, Civ. R.C., as they stood on the date of the application would apply to this case; vide 'Ramaswami Chettiar v. Ramanatha Chettiar, 1950-2-MLJ 400 & 'Palani Goundan v. Rama Goundan, CMP 3990 of 1949.

3. 'Prima facie' it appears to us that all the conditions laid down in the two sections are satisfied & the petitioners are entitled to a certificate that the case fulfils the requirements of these sections. The appeal proposed to be filed is from a decree passed in appeal by a High Court. The amount or value of the subject-matter of the suit in the Court of the first instance is admittedly over Rs. 10,000. The amount or value of the subject-matter in dispute on appeal to the Supreme Court, that is to say, the value of the properties in Schedule II & items 1 to 5 of Schedule III-c, even taking a half share therein as the subject-matter in dispute is over Rs. 10,000. The decree appealed from i.e., the decree of this Court does not affirm the decision of the Court immediately below because it has varied the decision of the Court below as regards the properties divisible between the plff. & deft. 1. So far as Schedule II properties are concerned the appeal also involves a substantial question of law, namely, whether a dedication for the performance of 'Bum pooja' at a 'Samadhi' & for conduct of 'Annadanam' on the death anniversary of a person is illegal & invalid.

4. The application is, however, opposed. The contention of Mr. S. Ramachandra Aiyar is that one single appeal is not maintainable in this case as there were two appeals to this Court, that if two applications are made for leave to appeal & considered separately, the decree in A.S. No. 625 of 1945 the appeal preferred by the petitioner, which was dismissed, affirmed the decision of the Court below & there was no substantial question of law, whereas the value of the items covered by A. S. No. 200 Of 1946 is far below Rs. 10,000 & therefore the petitioners would not be entitled to leave to appeal against either of the decrees in the two appeals. In support of his contention that there should be two applications for leave, Mr. Ramachandra Aiyar relied, on certain statutory provisions, namely, Sections 109, 110, Order XLI, Rule 35 & Order XLV Rule 2 of the Civ. P. C., Article 133 Of the Constitution & Rules l, 6 & 7 of Order XII of the Supreme Court Rules.

5. Order XLV, Rule 2 of the Code has no bearing whatever on the question in issue; nor have the rates of the Supreme Court mentioned above, & this was practically conceded by learned counsel. In Article 133 of the Constitution, an attempt was made to rely on the words "in a civil proceeding". These words, however, have no special significance & are used in contradistinction to the words "in a criminal proceeding" in the next Article 134. The argument that each appeal to this Court is a separate civil proceeding & therefore an appeal would lie against the decree. In each one of the several appeals though they may all be from the same decree in a suit appears to us to be far fetched & unsound. Order XLI, Rule 35 provides that the decree of the appellate court shall bear date of the day on which the judgment was pronounced & shall contain the number of the appeal, the names & descriptions of the appellant & respondent, their addresses for service & a clear specification of the relief granted or other adjudication made & other particulars. In the first place Order XLIX Rule 3 expressly declares that Rule 35 of Order XLI shall not apply to any chartered High Court in the exercise of its appellate jurisdiction. Further, there is nothing in this provision which throws any light on the question whether two applications for leave to file two appeals to the Supreme Court are necessary against the same decree of a subordinate court when two appeals are preferred to the High Court by the two on posing parties & those appeals are disposed of together by a common judgment.

6. On principle & on authority we are of opinion that when several appeals are preferred against the decree in the same suit by different parties, they should be heard together & there can be only one decree of this court as an appellate court embodying the decisions in the several appeals, which decree would supersede the decree of the trial court. To take a simple case, If A sues to recover Rs. 10,000 from B but obtains a decree only for Rs. 4,000 & his claim is dismissed as regards the remainder, & both the plff. & the deft, file appeals, in so far as each is aggrieved by the decree, & the appellate court, be it this court or a court below, accepts one of the appeals & dismisses the other appeal, with the result that the suit is decreed or dismissed in its entirety then obviously both principle & common sense require that there should be one decree drafted as the decree of the appellate court. In an early case in 'Krishnamachariar v. Mangammal', 26 Mad 91 Bhashyam Ayyangar J, observed:

"When an appeal is preferred from a decree of a court of first instance, the suit is continued in the court of appeal & re-heard either in whole or in part, according as the whole suit is litigated again in the court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one con firming, varying or reversing the decree of the court of first instance. The mere fact that a matter is litigated both in the court of first instance & again though only in part, in the court of appeal, cannot convert or split the suit into two & there can be only one final decree in that suit, viz., the decree of the court of appeal.

In my opinion, when there are different appeals from one & the same suit, they should all be disposed of together which, as far as I know, is the practice-- & only one decree passed in appeal." It is well established that for purposes of appeal it is such final decree of the appellate court from the date of which time would run for filing application for execution though the appeal may be only from a part of the decree. This rule has been applied to appeals preferred to the lower appellate court. In 'Sanyasi Lingam v. 'Midugonda Gavaramma' 16 MLJ 411, Boddam & Sankaran Nair, JJ., held that where from a decree in a suit two appeals were preferred to the lower appellate court but only one decree was passed by it it was sufficient if one second appeal was preferred to this court. The learned Judges held that the Dist. J. very properly heard the two appeals together & passed one judgment & one decree upon both the appeals Referring to the single second appeal filed in this court, they say:

"Here there is only one appeal entered, & we think that the course adopted is right & that there was no necessity to enter two appeals & even if two appeals had been entered the proper course would have been to hear them together & to pass one decree".

This ruling was followed by Jackson & Ananthakrishna Aiyar JJ, in 'Appa v. Kachai Bayyan Kutti',35 MLW 444,' where two appeals were preferred in the lower appellate court by two sets of defts. against a decree in favour of the plff. in one & the same suit & the result of the appeals was that the suit was dismissed by the lower appellate court. It was held that the plffs. need not file two second appeals against the decree of the lower appellate court dismissing the suit & only one second appeal preferred against that decree was maintainable. In 'Damodar Das v. Sheoram Das', 29 All. 730 there was a suit for adjustment of accounts between the plff. & the defts. Against the decree made by the court of first instance, both parties appealed. The lower appellate court disposed of both the appeals by one judgment & found in favour of the defts. for a particular sum. Two decrees appear to have been drawn in the two appeals, though the decrees were 'mutatis mutandis' exactly similar. The plff. appealed from one only of the two decrees. It was objected 'in limine' that the appeal was barred by the principle of 'res judicata' as there was no appeal as against the other decree. The objection was overruled because "There was in fact but one decree-settling the accounts between the parties", though no doubt the decree was written out in duplicate in both the appeals to the lower appellate court. We are of opinion that only one decree properly should have been drawn as it was done in this case embodying the judgment in the two appeals which were heard together. The question whether the settlement deed was valid or not was as much a question in the plff.'s appeal as in the deft.'s appeal & it was as a result of the decision of this court on this question that the plff.'s appeal succeeded & the deft.'s appeal failed as regards Schedule II properties. The decree of this Court was the only one formal expression of an adjudication conclusively determining the rights of the parties with regard to the matter in controversy (vide definition of 'decree' in Section 2(2) of the Code).

7. The same principle, we think, underlies the decisions of this court to which we shall presently refer in which the net result of the decision in the main appeal & the memo, of cross-objections therein was taken to be conclusive in the matter of an appeal to the Privy Council in determining whether the requirements of Sections 109 & 110 of the Code were satisfied. In 'Sundara Mudaliar v. Ratnavelu Mudalier', 52 Mad 521 in a suit for general account against the trustees which charged them also with specific items of malversation, the trial court decreed only some of them. There was an appeal by the trustees in respect of the items allowed against them, while the plffs. filed a memorandum of cross-objections relating to the items disallowed. This court heard the appeal & the memo of cross-objections together & dismissed the suit 'in toto'. The plffs. thereupon filed an application under Sections 109 & 110 praying for the grant of a certificate to enable, them to appeal to the Privy Council in respect of the whole of the subject-matter of the original suit. The application was opposed on the ground that the appeal & the memorandum of objections must be treated as separate appeals & that so far as the decree in respect of the memo, of objections was concerned, no appeal would lie to the Privy Council as the judgment of the lower Court was affirmed & that so far as the decree in the appeal itself was concerned, the value of the subject-matter was less than Rs. 10,000, & therefore no appeal would lie. The contention of the applicants was that the appeal & the memo, of objections must be considered to constitute one appeal & therefore the total value of the subject-matter was over Rs. 10,000, & the decree of this Court was a reversing decree. The learned Judges, Phillips & Odgers, JJ., repelled the contention of the respondents. According to them the question that had to be decided was whether the decree of this Court In the appeal & the memo, of objections really consisted of two separate decrees in respect of separate subject-matters or whether it was really one decree dealing with one subject-matter only. In their view in the case before them it was not possible to split the decree into two parts & hold that one part was an affirming decree & the other part a reversing decree. The petitioners in the circumstances had a right to appeal. The learned Judges distinguished their decision in an earlier case 'Ramanathan Chetti v. Subramanian Chetti', 51 M L J 295, on the ground that in that case the memo, of cross-objections related to a matter entirely distinct from the subject-matter of the appeal. In 'Perichiappa Chettiar v. Nachiappa', 35 M.L.W. 206, the suit was for account by a principal against as agent. The plff. valued the claim at Rs. 40,000. The trial Court passed a decree in favour of the plff. for Rs. 5,682. Against this the deft, appealed to the High Court & the plff. preferred a memo, of cross-objections claiming a decree for a further amount of Rs. 20,000. The High Court allowed the deft's. appeal in part & reduced the amount decreed by the trial court by about Rs. 4,000, allowed the cross-objections preferred by the plff. to a small extent of Rs. 150 & dismissed it in respect of the remainder. The plff. applied for leave to appeal to the Privy Council & it was held that he was entitled to a certificate as a mater of right. The reasoning of the learned Judges was this. A decree for the payment of a certain amount which is the result of taking an account is one decree & not a series of decrees merely because it is the result of decisions in respect of a number of items. If the High Court's decree in such a case does not entirely affirm the decision of the Court immediately below it, then, it is not an affirming decree within the meaning of Section 110, Civ. P. C. The learned judges distinguished the case before them from a case where a decree may be really a composite decree or a, series of decrees dealing with what should strictly be the subject-matter of separate suits, e.g., a decree dealing with alienations in favour of different defts. which by long established practice are allowed to be made the subject-matter of one suit. In such cases it may be proper to separate each decree of the series for the purpose of the appeal to his Majesty in Council. The learned Judges dealt with the memorandum of cross-objections as if it was really a cross-appeal. The apparent conflict between the decision in 'Ramanathan Chetti v. Subramanian Chetti' 51 M L J 295, and the two decisions mentioned above was resolved by the Pull Bench in 'Gangadhara v. Subramania, I.L.R. 1947 Mad. 6. One 'S' filed a suit against 'G' & others for a declaration that eleven items of property described in the schedules to the plaint belonged to the estate of a certain person & that the deed of settlement executed by the mother of that person in respect of those properties was void. The suit was filed by 'S' as the reversioner of the original owner. The trial Court gave him a declaration in respect of six of the eleven items of property, but dismissed the rest of his claim. 'G' & others appealed to the High Court in' respect of the six items while 'S' filed a memo, of cross-objections in which he prayed for a declaration in respect of four out of the remaining five items. The appeal was dismissed & the memo, of cross-objections was allowed by this Court. 'G' & others sought a certificate for an appeal to His Majesty in Council. The application was opposed on the ground that there were concurrent findings of fact so far as the six items which were concerned in the appeal & the value of the four items concerned in the memo, of objections was below Rs. 10,000. The Full Bench held that 'G' & others were entitled to the certificate, because the subject-matter of the appeal to the Privy Council comprised ten items of property & the High Court's decree had varied the decree of the trial Court in respect of four of the items. The High Court's decree being one of variation & not of affirmance & as the value of the ten items exceeded Rs. 10,000, the petitioners were entitled to leave as of right. The learned Judges in effect overruled the decision In 'Ramanathan Chettiar v. Subramania Chetti, 51 M.L.J. 295. After pointing out that the judgment in that case is in conflict with the judgment of the same learned Judges in 'Sundara Mudaliar v. Katnavelu Mudaliar', 52 Mad. 521, they go on to say:

"In the second place, we consider that they erred in separating the appeal from the memo, of objections & treating the orders of this Court thereon as embodying two separate decrees. Only one decree was drawn up & it certainly varied the decree of the trial Court. In these circumstances the appellant was entitled to a certificate granting leave to appeal & we must hold that case was wrongly decided."

We are clearly of opinion that the reasoning of the learned Judges of the Full Bench would equally apply to a case where instead of a memo of cross-objections there had been a cross-appeal. In fact neither the learned Judges who decided 'Ramanathan Chettiar v. Subramania Chetti 51 M.L.J. 295, in the way they did, nor the same Judges in 'Sundara Mudaliar v. Ratnavelu Mudaliar, 52 Mad. 521, nor the Judges in Appa v. Kachai Bayyan Kutti, 35 MLW 444 and 'Perichiappa Chettiar v. Nachiappa' 35 MLW 206, and the Judges who constituted the Pull Bench appear to make any distinction between a memo, of cross-objections & a cross-appeal.

8. In 'Jamuna Prasad v. Jagarnath Prasad' 9 Pat. 558 there were cross-appeals. The plffs. obtained a mortgage decree in the Court of first instance but the claim to interest 'pendente lite' was disallowed. The defts. appealed to the High Court & the plffs. preferred a cross-appeal in respect of the interest. The deft's. appeal was dismissed & the plff.s' cross-appeal was allowed. There was only one decree of the High Court in the following terms:

"It is ordered & decreed that this appeal be & the same hereby is dismissed with costs & the cross-appeal be allowed, the decree of the Court below be modified to this extent that interest at the bond rate shall run on the principal up to the expiry of the period of grace."

The defts. applied for leave to appeal to the Privy Council. The value of the subject-matter of the suit & the appeal which related to the entire claim was above Rs. 10,000. It was held by Jwala Prasad & Rowland, JJ., that the decree of the High Court was not one affirming the decision of the Court below & they refused to accept the contention of the respondents' counsel that inasmuch as the defts'. appeal was dismissed & the decree of the Court below was affirmed so far as their appeal was concerned, the decree passed by the High Court was a decree of affirmance. They treated the decree as a whole & held that the decree was not a decree of affirmance.

9. Mr. Muthukrishna Aiyar drew our attention to an extract from the judicial index of 1938 at page 135 which gives a summary of a ruling of Leach, C.J., & Krishnaswami Aiyangar J., in C. M. P. No. 4066 Of 1938. A suit for property worth Rs. 10,000 was decreed in part & there were appeals by both the plff. & the deft. The plff.'s appeal was dismissed & the deft's. appeal was allowed by a common judgment. There was an application by the plff. for leave to appeal to the Privy Council against the dismissal of his suit by the High Court. The learned Judges held that as a result of the common judgment of the High Court, the plff's. suit for property of the value of Rs. 10,000 was dismissed & leave to appeal should be granted.

10. All these decisions are in favour of the petitioners. Mr. S. Ramachandra Aiyar for the respondent relied, however, on certain decisions of this & other Courts tn support of his contention that the petitioners were not entitled as of right to the grant of a certificate that the case fulfils the requirements of Section 110 of the Code. The earliest Of such decisions is 'Chiranjilal v. Behari Lal' 16 ALJ 864. A suit was decided partly in favour of the plff. & partly against him. Both plff. & defts. filed separate appeals. The High Court set aside the decree of the Court of first Instance & dismissed the plff's. suit. The plff. filed an application for leave to appeal to His Majesty in Council against the decree in the deft's. appeal which was allowed & that application was granted. He filed a second application for leave to appeal against the decree in his appeal which had been dismissed. The learned Judges (Richards & Tudball, JJ.) rejected the application. The judgment is short & proceeded on the simple fact that Inasmuch as the decree which it was sought to appeal against confirmed the decision of the Court immediately below, a certificate could not be granted unless the appeal involved some substantial question of law which was absent. In the first place we must remark that the question which is now before us was not raised before the learned Judges. Two separate decrees appear to have been drawn up In the two appeals though they both arose out of the same suit. There was the further complication that the plff. filed two separate applications one of which had already been granted. It was not argued before them that there was only one decree of the High Court as the decree of the appellate court, & that decree was not an affirming one. In our opinion, this decision cannot be taken as an authority that when there are two appeals by two parties in the same suit & relating to the same matter in controversy, two decrees should follow & there should be two applications for leave to appeal to a superior tribunal. It may be mentioned that the decision in 'Ramanathan Chetti v. Subramania Chetti' 51 M.L.J. 295, followed this decision applied it to the case of an appeal & a memo, of objections. The learned Judges of our Court were apparently of the view that it made no difference in principle whether it was an appeal & a cross-appeal or it was an appeal with a memo, of objections. The decision in 'Ramanathan Chetti v. Subramania Chetti', 51 M.L.J. 295, is certainly not now law after the decision of the Pull Bench in 'Gangadhara v. Subramania', ILR (1947) Mad 6.

11. The next decision relied on by Mr. Ram.achandra Aiyar is that in 'Nathulal v. Raghubir Singh', 54 All. 146. That decision itself, a decision of a Full Bench, takes the same view as the Full Bench of our Court in 'Gangadhara v. Subramania', I.L.R. (1947) Mad. 6, as regards an appeal & a memo, of cross-objections. As in the result there was only one decree disposing of both by which the decree of the first Court had been varied, the unsuccessful party had a right of appeal to His Majesty in Council against the decree of the First Court which had not been affirmed. But counsel relies upon certain observations which Sulaiman, A.C.J., made during the course of his judgment. He was inclined to think that separate appeals, that is to say, cross-appeals might stand on a different footing, because the appeals are separately numbered and ordinarily separate decrees are passed & prepared in them. But it was not necessary for him to express any definite opinion on this question. Mukerji, J., also considered it unnecessary to express any opinion in the case where there are two independent appeals & consequently there are two decrees in appeal. The other learned Judge, Boys, J. was obviously inclined to take the view that it should not make a difference in the case of cross-appeals. He said:

"......I desire to point out that there is, in my view, a glaring anomaly in the law as it at present stands. There having been appeal with a cross-objection, we have decided the law in one way. If, in this very case, instead of an appeal with a cross-objection there had been two so-called cross appeals, it would, as the decisions at present stand, have had to be decided in exactly the opposite way. I cannot, therefore, refrain from expressing the hope that the question may very shortly be raised in reference to two so-called cross-appeals & be further considered by a Full Bench."

12. In 'Benares Bank Ltd. v. Rajnath Kunzru', 57 All. 873, the question of cross-appeals did arise. A suit for money claimed in respect of two distinct items was decreed in part, namely, fully as regards the first item & partially as regards the second. Both the parties filed cross-appeals in the High Court. They were heard together & disposed of by one judgment, but two separate decrees were prepared in the two appeals, the deft's. appeal being allowed & the plff's. appeal being dismissed. There were two separate applications & the application which came up before the Full Bench was the application in the appeal of the plff. which had been dismissed. There was no dispute as to valuation the requirement as to which was satisfied, but it was conceded that no substantial question of law arose. It was held that the plff. was not entitled to appeal as of right. The 'ratio decidendi' is contained in the following passage in the judgment of Sulaiman, C.J., at page 877:

"The case of two cross-appeals is not exactly Identical with an appeal & a cross-objection. In the case of an appeal & a cross-objection there is only one judgment delivered & only one decree is prepared by the court which embodies the adjudication in both the appeal & the cross-objection. On the other hand, under Order XLI, Rule 35 the decree of the appellate court has to contain the number of the appeal, the names & descriptions of the appellant & the respondent & a clear specification of the relief granted or other adjudication made. If there are two cross-appeals pending in the High Court two decrees have to be prepared giving all these particulars."

Niamatullah J., rested his conclusion on the fact that one document described as a decree may contain several adjudications on several distinct matters in controversy & may amount to several decrees. He found that there were two such different controversies in the case before the Full Bench & as regards one of them the decree of the High Court had affirmed the decision of the Court below. We are not concerned with the actual conclusion arrived at by the learned Judges. Possibly it was right on the facts of the case. But we must respectfully dissent from the observations of Sulaiman, C.J., that Order 41, Rule 35 prevents one decree being made by the appellate court following one common judgment disposing of two appeals. As we have pointed out earlier in this judgment, even if, there are two cross-appeals, there should only be one decree of this Court which would supersede the decree of the Court below. Even assuming that this decision is correct, it would not help the respondent, because it was conceded by her counsel that both the appeals in so far as they related to the items covered by the settlement deed involve the same matter in controversy. Equally the respondent will derive little assistance from the decision in 'Mukundilal v. Hashrnatun-nissa', I.L.B, (1937) All.

105. A suit was brought for recovery of possession of property on the ground that the plff. was the next reversioner of the last male owner. The defts. were transferees from a person who was claiming to have been the adopted son of the deceased. The trial court held that the adoption was not proved & decreed the claim. Two sets of defts. (transferees) filed separate appeals to the High Court which were heard together. The High Court held that the adoption had been proved & dismissed the entire suit. The plff. filed two applications for leave to appeal to His Majesty in Council. In one of the appeals the valuation was above Rs. 10,000, but in the other it was less. Objection was taken that no leave could be granted in the latter case. But the learned Judges thought that it was a fit case for the grant of a certificate under Section 109(c) of the Code. We agree that leave should have been granted, but with respect certainly not under Section 109(c) which has never been considered to apply to such circumstances. Leave should have been granted really because though there were two separate appeals, in essence there was only one decree of the High Court, a decree dismissing the suit in its entirety.

13. We think that 'Asarani v. Kishen Chand', 11 Lah. 465, on which Mr. Ramachandra Aiyar relied was wrongly decided, as also the case in 'Banarsidas & Sons v. Delhi Iron Syndicate.' AIR (24) 1937 Lah 916. In these two cases though there were cross-appeals, not only were they heard together but a composite decree was prepared in both the appeals & rightly. Nevertheless the [earned Judges take the view that there should be a splitting up of the decree of the appellate court because there were two appeals.

14. A decision of this Court on which strong reliance was placed by Mr. Ramachandra Aiyar for the respondent was that in 'Chokkalingam Chetti v. Official Assignee, Madras', 1940-2-MLJ 645. In that case one 'C' filed an application in insolvency claiming a sum from the Official Assignee & also claiming priority therefor. The Court upheld his claim but denied priority. Thereupon both the Official Assignee & the claimant filed two appeals, the claimant in so far as it disallowed his claim to priority & the Official Assignee in so far as it allowed 'C' to prove in the insolvency. Both the appeals were in the main dismissed, but in the appeal by the Official Assignee a modification was made as to interest. The claimant applied for leave to appeal to the Privy Council treating the decree as a varying decree. It was held that so far as the claimant was concerned, the decree was one of affirmance. It was contended for the petitioner in that case that there was one decree issued & his claim was one composite claim, but the learned Judges were not inclined to agree with the contention. They thought that "though one decree was Issued in this case, it is in essence a document which embodies two decrees." In refusing leave the learned Judges were largely influenced by the ruling in 'Ramanathan Chetti v. Subramania Chetti', 51 MLJ 295. As 'Ramanathan Chetti v. Subramania Chetti', 51 MLJ 295 has been held by the Pull Bench in 'Gangadhara v. Subramania, I.L.B. (1947) Mad. 6 to have been wrongly decided, it must follow that the basis of the decision in 'Chokkalingam Chetti v. Official Assignee, Madras', 1940-2-MLJ 645, also goes.

15. It must be mentioned that we are not concerned in this case with several reliefs based on different causes of action being clubbed together following an established rule of practice such as that dealt with in 'Vaithialinga Mudaliar v. Somasundaram Chettiar'. 42 Mad. 226. 'Even when there are several defts. each one of whom is interested in items which may not be of the required value, It will be sometimes permissible to take the aggregate value of all the items in dispute, for which position we have the authority of the judicial Committee in 'Pethu Reddiar v. Rajambu Ammal', (1948) 2 MLJ 25.

16. As we have said before, so far as items covered by the settlement deed are concerned, there is only one subject-matter in dispute & in respect of that the decree of this Court certainly did not affirm the decision of the Court below. The value of the items covered by the settlement deed admittedly exceeds Rs. 10,000 even if a half share is taken. The petitioners will therefore be entitled to a certificate that the case fulfils the requirements of Sections 109 & 110, Civ. P. C.

17. Mr. T. V. Muthukrishna Aiyar, learned counsel for the petitioners has represented to us that the appeal would be confined to the items in Schedule II.


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