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L.P. Lakshmanan Chettiar and ors. Vs. Thangam Alias Palanichami Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1947Mad227; (1946)2MLJ465
AppellantL.P. Lakshmanan Chettiar and ors.
RespondentThangam Alias Palanichami Chetti and ors.
Cases ReferredAnnapurnabai v. Ruprao
Excerpt:
- - in doing so, the well-settled principles which are dcducible frcm the authorities bearing upon the question were applied to the case and those principles were set out in these terms: the principles however which have to be borne in mind in regard to this point are well established. in the partition suit, the plaintiff claimed one-fourth share in the joint family properties and it was conceded by him as well as by his father, the second defendant, that the first defendant was entitled to a half share. the petitioners' chance of success is not material to their application. reference was made in that case to sub-rules (1) and (2) of rule 4 as well as to rule 5 of order 20, civil procedure code, which make it abundantly clear that the finding of a court upon each issue has been.....yahya ali, j.1. this petition was filed by defendants 1 and 3 to 9 for leave to appeal to his majesty in council against the judgment and decree of this court in appeal no. 410 of 1944. it is opposed principally by the first and second respondents who were the plaintiff and the second defendant respectively. the first objection is that the case does not fulfil the requirements of section 110 of the code of civil procedure as regards the amount or value of the subject-matter in dispute in the appeal. the second ground is that the decree is one of affirmance and the appeal does not involve a question of law and consequently is not a fit case for appeal to the privy council. the petitioners contend that the value is above the statutory minimum and that the decree is one of variance and not.....
Judgment:

Yahya Ali, J.

1. This petition was filed by defendants 1 and 3 to 9 for leave to appeal to His Majesty in Council against the judgment and decree of this Court in Appeal No. 410 of 1944. It is opposed principally by the first and second respondents who were the plaintiff and the second defendant respectively. The first objection is that the case does not fulfil the requirements of Section 110 of the Code of Civil Procedure as regards the amount or value of the subject-matter in dispute in the appeal. The second ground is that the decree is one of affirmance and the appeal does not involve a question of law and consequently is not a fit case for appeal to the Privy Council. The petitioners contend that the value is above the statutory minimum and that the decree is one of variance and not of affirmance.

2. The first and second defendants are brothers and the plaintiff is the son of the second defendant. Third and fourth defendants are the sons of the first defendant, and defendants 5 to 9 are the sons of the third defendant. Thus defendants 1 and 3 to 9 represent one branch of the family while the second defendant and the plaintiff represent the other branch. They constituted a joint Hindu family; on the 9th February, 1932, an attempt was made at a partition and a muchilika Ex. P-1 was executed in favour of mediators; but for some reason, which is not material to these proceedings, the panchayat fell through. The case of defendants 1 and 3 to 9 was that in spite of this, the family reunited and continued to be joint until June 1935 and on 7th June, 1935, there was a final and complete partition which was fully acted upon. Ex. D-1 is the document which was executed on that date containing the details of the partition alleged to have been effected. The second defendant and the plaintiff attacked the genuineness of Ex. D-1 and averred that nothing in fact took place then. The trial Court found that there was a division in June 1935 as alleged by the first defendant. It also found that Ex. D-i, prepared in connection with the partition, is not a fabricated document but is in the nature of a partition list and is as such inadmissible in evidence for want of registration and since the document itself is not admissible, the details of the partiticn could not be proved by other evidence.

3. The suit properties are comprised in three schedulos attached to the plaint. A Schedule consists of two items of immoveable property valued at Rs. 8,000 and Rs. 4,000 respectively aggregating to Rs. 12,000. Schedule B consists of moveables alleged to belong to the family valued at Rs. 3,540. C Schedule property is a private religious trust consisting of certain temples dedicated to Pechiamman and certain other deities with some shops attached to the trust. The properties in Schedule C-1 are the moveable properties belonging to the idol and they go with Schedule C. C Schedule property which consists of the temple was valued in an arbitrary manner at Rs. 5,000 by the plaintiff for the reason alleged by him that as it is a temple there is no market value for it. The ornamental articles mentioned in Schedule C-1 are valued at Rs. 690.

4. In appeal, the general contention was raised that Ex. D-1 was admissible as evidence of the partition and that it was merely a minute or memorandum of what had already been settled or completed. It was also argued that there was part performance of the partition embodied in Ex. D-1. But the main purpose for which the admissibility of Ex. D-1 was urged was to establish the exclusive right of the first defendant and his line to the right of management of the properties, mentioned in Schedules C and C-1. Under Ex. D-1 that right was given to the senior line represented by petitioners (the first defendant and his stcck). It was; in the alternative contended that apart from the right conferred under Ex. D-1 there was a family custom under which the right of management was indivisible and it went to the senior branch of the family. There was no contention whatever before us with regard to any of the properties mentioned in Schedules A and B. In fact, so far as B Schedule properties are concerned, the trial Court had found that barring a bureau, the first defendant was not in possession of any of the other articles mentioned in that schedule and this finding was not questioned before us.

5. On the question of the admissibility of Ex. D-1, this Court agreed with the conclusions of the trial Judge. After examining the provisions in Ex. D-1, and the relevant decisions this Court came to the conclusion that the parties intended Ex. D-1 to be evidence of partition and the document constituted the real bargain between the parties and hence was inadmissible in evidence for want of registration. In doing so, the well-settled principles which are dcducible frcm the authorities bearing upon the question were applied to the case and those principles were set out in these terms:

The principles however which have to be borne in mind in regard to this point are well established. If in fact a division takes place first and later on there is a document which is merely a record of a past event and which is dissociated from the prior division in fact and in reality, the document is not a deed of partition requiring registration. But there must be a real dissociation in fact between the partition and the document. If the document was intended to be evidence of the partition, then it would require registration. In this case the evidence adduced by the appellants makes it clear that the document and the division were all parts of the same transaction and that there was no dissociation between the one and the other.

The contention as regards part performance of the partition embodied in Ex. D-1 was negatived both on the ground that it was raised neither in the written statement nor at the trial and on the ground that according to the evidence there were no facts established in the evidence on which such a plea could be founded and this Court concurred with the findings of the trial Court. Lastly with regard to the family custom pleaded regarding the right of management of C Schedule properties, the trial Court found against the existence of such a custom and this Court entirely agreed with that finding and held that the custom set up by the petitioners-appellants had not been proved.

6. These findings were sufficient to affirm the decree of the lower Court directing a division of the properties in various schedules including C and C-1 Schedules which were directed to be managed by turns. But two minor questions were raised at the end of the argument and directions were solicited with regard to them. The first question related to the maintenance of the tenth defendant (third respondent here) who is the mother of the first and second defendants. The second defendant made a claim that he had been maintaining his mother all through and that he had a right to be reimbursed. This claim although put forward at the trial was not definitely decided by the trial Court. Mr. Sitarama Rao, learned advocate for the plaintiff who was the first respondent in this Court, conceded that this claim to reimbursement may be investigated at the time of the final decree and both the question whether the second defendant is entitled to reimbursement by reason of his having maintained his mother and the question as to the amount to which he is entitled on that account were left open by this Court to be decided at the stage of the final decree. There was thus no final adjudication of the claim to reimbursement nor was there any amount decreed as payable to the second defendant by any of the respondents. The second minor question raised at the appeal was as regards the debts which the first defendant alleged were payable by the family. Except in one or two instances, the trial Court directed that there need be no provision made in the decree as regards those debts but the matter was left open to be decided in suits to be filed by the respective creditors.

7. The appellants before this Court rightly argued that in a suit for partition all matters concerning the liabilities of the family should be gone into and provision should be made for their discharge before the residue available for partition is arrived at. Mr. Sitarama Rao agreed to this course also and consequently an enquiry was directed by this Court to be made before the passing of the final decree as regards the truth and the binding nature of the debts which are alleged by the first defendant to be payable from out of the family properties. The direction was. that after the enquiry provision should be made for the discharge of the debts that are found to be binding on all the parties. As a matter of fact this was the only modification that was made in the decree of the trial Court and with this modification the appeal was dismissed.

8. Turning to the two objections raised by the respondents, we are inclined to think that both of them should prevail. In the partition suit, the plaintiff claimed one-fourth share in the joint family properties and it was conceded by him as well as by his father, the second defendant, that the first defendant was entitled to a half share. The first defendant, on the other hand, claimed on the strength of Ex. D-1 th it so far as A Schedule properties were concerned, items 1-A and 1-A (i) in the A Schedule and a shop fell to his share and the second defendant got item 2 of that schedule each having to bear a portion of the family debts. He denied having been in possession of any of the moveables mentioned in B Schedule and in regard to C and C-1 Schedules he claimed an exclusive right of management. Under section no, Civil Procedure Code, the amount or value of the subject-matter in dispute in an appeal to the Privy Council, must be ten thousand rupees or upwards and it has been held by the Judicial Committee as recently as in Bai Shevantibai v. J.R. Warick (1944) 2 M.L.J. 218 : L.R. 77 IndAp 142 (P.C.) that the value of the subject-matter in dispute in an appeal to the Privy Council must be taken to be the value of the share in the joint family property in respect of which the appellant is claiming. The petitioners in this case can be said to be claiming only a half share in A Schedule properties which is in dispute and the exclusive right of management of the properties in C Schedule. So far as the properties in SchedulesB and C-1 are concerned, there was no contest whatever in the appeal in this Court. The valuation of the A Schedule properties according to the plaint being Rs. 12,000 one half share in dispute in appeal will be worth Rs. 6,000. The plaintiff has no doubt valued the C Schedule temple at Rs. 5,000; but he has stated that the temple has no market value and that for the purpose of jurisdiction he was fixing its value at Rs. 5,000. The subject-matter of the dispute, in the appeal is not the temple itself but the right of management of the temple and its properties. The value of that right could have no relation to the capital cost of the property. It can only have a notional value and we feel certain that however liberally the right of management may be valued, it would never be sufficient to make up the margin that is required to bring the value up to the required level of Rs. 10,000 or upwards. We must therefore find that the requirement of section no, Civil Procedure Code, as regards the value of the subject-matter of the appeal is not fulfilled, in this case.

9. This finding is sufficient to dispose of the petition. But since the other question has been argued before us at length and it is a question of considerable importance, we have gone into it and examined the various rulings cited before us. We have pointed out that the main contest in the case was with regard to C Schedule properties and the admissibility in evidence of Ex. D-1. The decree of the trial Court was affirmed in toto except for the slight variation made in the matter of the debts alleged to be due by the joint family. That was a contention raised by the petitioner as first defendant and the variance that was made by this Court was entirely in his favour and he has no grievance about it. In fact that is not a question which forms part of the subject-matter in dispute in the proposed appeal to the Privy Council. The part of the case which is proposed to be challenged before the Privy Council relates to the C Schedule properties with regard to which this Court fully affirmed the decree of the trial Court.

10. The question therefore resolves into this, whether when there has been a slight variation of the decree which is wholly in favour of the proposed appellant and about which he has no grievance and in regard to other matters the appellate decree has affirmed the decree of the trial Court, the appellate decree is a decree of affirmance or of variance within the meaning of Section 110 of the Civil Procedure Code. There has unfortunately been considerable divergence of judicial opinion on this question. The matter came up before the Privy Council in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : I.L.R.51 Cal. 969 (P.C.) and the short judgment in that case has been interpreted by the various Courts in India in different ways. There, a person died issueless leaving two widows. The plaintiff claimed to have been adopted by the senior widow while the second defendant claimed to be the adopted son of the junior widow who was the first defendant. The plaintiff denied the second defendant's adoption and both the defendants denied the plaintiff's adoption. In the suit the plaintiff claimed certain property and in answer, while denying the plaintiff's adoption, the first defendant, the junior widow, claimed for herself maintenance at Rs. 3,000 per annum. Both the trial Court and the appellate Court concurred in holding that the plaintiff's adoption by the senior widow was proved. The first Court awarded maintenance to the first defendant, the junior widow, at Rs. 800 per annum while the appellate Court raised it to Rs. 1,200 per annum in other respects confirming the trial Court's decree. Defendants 1 and 2 applied for special leave. Sir George Lowndes arguing for the appellant stated before the Board that having regard to the concurrent findings, the petitioners desired to appeal only with regard to the amount of the maintenance. The respondent was not represented. The following short judgment of the Board was delivered by Lord Dunedin:

In the opinion of their Lordships the contention of the petitioners' counsel as to the effect of section no of the Code is correct. They had therefore a right of appeal. Special leave to appeal should be granted, but should be limited to the question of maintenance. The petitioners' chance of success is not material to their application.

Some Courts have construed this judgment to mean that the leave was limited to the question of maintenance only while other Courts have held that the general contention was approved that since there was a variation in the amount of maintenance although in favour of the petitioner before the Privy Council, the decree is not a decree of affirmance but one of variance for the purpose of Section 110, Civil Procedure Code. Broadly speaking, Calcutta, Madras, Bombay and Lahore High Courts have adopted the former view while the Patna and Allahabad High Courts have followed the latter view.

11. The main decisions of the Calcutta High Court where this question was discussed are Narendra Lal v. Gopendra Lal : AIR1927Cal543 and Bibhootibhooshan Datta v. Sreepati Datta (1934) I.L.R 62 Cal. 257. After adverting to Raja Sree Nath Roy v. Secretary of State (1904) 8 C.W.N. 294, where the fundamental basis was laid down that if the two Courts were at one upon the matter which was to be in debate before the Privy Council then it is a case of a decree which affirms the decision of the Court immediately below, Rankin, C.J., examined the question whether the decision of the Privy Council in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : I.L.R. 51 Cal.969 (P.C.) had completely overruled that principle. The learned Chief Justice realised that the principle which was applied in Raja Sree Nath Roy v. Secretary of State (1904) 8 C.W.N. 294, that you have to have regard to the subject-matter of dispute in appeal to the Privy Council must be taken as overruled and after making this remark he proceeded to observe:

The question is whether, on the strength of the only case before the Privy Council which we have for our guidance the views hitherto adopted in this and other High Courts require to be further considered. The question is whether the judgment of their Lordships means that in every case where the decree of the High Court is not a mere decree dismissing the appeal or a mere decree affirming the order of the Court below in the case, the necessity for showing a substantial question of law is done away with. It appears to me that the case of Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : I.L.R. 51 Cal.969 (P.C.) is not in itself a sufficient authority to justify this Court in abandoning the principle which it has with other High Courts acted upon; that is to say, I do not think that it shows that it is an erroneous view that we have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council.

The Privy Council decision was construed as meaning that where there is a dispute as to the amount of the decree or as to the amount of damages, the fact that the Courts differ and that the High Court differs in favour of the applicant does not mean that the decision is one of affirmance. Such doctrine, it is pointed out, cuuld not be extended so as to justify the conclusion that though on a totally different point the applicant has succeeded in getting the first Court's decree modified and has no further grievance in that matter, yet he could without showing a substantial question of law, have a right to litigate upon ether points upon which both the Courts were in agreement. This decision was followed in Bibhootibhooshan Datta v. Sreepati Datta I.L.R (1934) Cal. 257 and the view taken by Rankin, C.J., as to the true effect of Annapurnabai v. Ruprao (1934) L.R. 51 IndAp 319 : I.L.R. 51 Cal.969 (P.C.) was adopted in that decision. We will only reftr to one decision of the Bombay High Court in Kapurji v. Pannaji A.I.R. 1929 Bom. 359, where despite a reference to Annapurnabai v. Ruprao (1934) L.R. 51 IndAp 319 : I.L.R. 51 Cal.969 (P.C.) leave to appeal to the Privy Council was refused and the learned Chief justice observed:

Now as regards that item both the Courts below were in agreement, and accordingly it is clear that the appeal to the Privy Council, if allowed, would be merely so far as the plaintiff' is concerned, with reference to the havala item of Rs. 18,000. It would also be clear that as regards that item both the Courts below were agreed. Under these circumstances, we think that on the true construction of section no, Civil Procedure Code, it is necessary that as the decision appealed from affirmed the decision of the Court below on this item, the appeal must involve some substantial question of law before it can be admitted.

There are two Full Bench judgments of the Lahore High Court where this question has been fully discussed and the entire case-law has been exhaustively surveyed. (Brahma Nand v. S.D. Sabha A.I.R. 1944 Lah. 329 and S.K. Wahid-ud-din v. Makhan Lal A.I.R. 1944 Lah. 458) In the first case, after discussing the various aspects of the matter Din Mohammad, J., who wrote the leading judgment in the case pointed out:

If a decree of a Court of first instance is affirmed by the High Court no appeal lies to His Majesty in Council unless a substantial question of law is involved. Why should then a party be allowed to override the statutory provisions of law and to take his appeal to His Majesty in Council on a simple question of fact on which the High Court has agreed with the Court below merely because on a matter quite unconnected with it a variation has been introduced by the High Court against which he has no grievance whatever The part varied by the High Court not being any longer under controversy the decree sought to be appealed against is obviously one of affirmance and is not appealable unless a substantial question of law is involved.

In the second Full Bench judgment of the same Court, the principle is reiterated that if the Court partly affirms and partly reverses the decision of a Court immediately below, the person aggrieved by the affirmed portion of the decree has no right of appeal to His Majesty in Council against that portion of the decree merely because in the other portion of the decree the variation has been made entirely to his satisfaction and he has no appealable grievance left in respect thereof. Reference was made in that case to Sub-rules (1) and (2) of Rule 4 as well as to Rule 5 of Order 20, Civil Procedure Code, which make it abundantly clear that the finding of a Court upon each issue has been characterised as a 'decision' by the Legislature and hence it cannot be true that the final adjudication of the suit alone can be described as such. This argument turns upon a distinction that was sought to be drawn between the words 'decree' and 'decision' occurring in Clause 3 of Section 110, Civil Procedure Code, to which we shall advert presently when we deal with one of the decisions of our own Court.

12. In this Court two decisions Shunmuga Sundara Mudaliar v. Ratnavelu Mudaliar (1928) 56 M.L.J. 47C : I.L.R. 52 Mad. 521 and Perichiappa Chettiar v. Nachiappan (1930) 35 L.W. 206 in which leave to appeal to Privy Council was granted were cases where the subject-matter of the appeal was the liability to account, both being account suits. In the former case, the plaintiff sued for a general account as against a trustee alleging eight specific instances of malversation. Two of those charges were held by the first Court to have been proved. The defendant appealed in respect of those two charges while the plaintiff filed a memorandum of cross-objections in respect of the other six charges. The appeal was allowed and the memorandum of cross-objections was dismissed by this Court. Leave to appeal was granted negativing the contention that the case did not satisfy the requirements of the Code with regard to value as it was held that both the appeal and the memorandum of cross-objections constituted one decree and not two distinct decrees. The latter case was a suit for accounts against an agent valued at Rs. 40,000. The plaintiff got a decree for Rs. 5,682 against which the defendant appealed. The plaintiff preferred a memorandum of cross-objections claiming a decree for a further sum of Rs. 20,000. The appeal was allowed in part reducing the decretal amount by Rs. 4,000 and the memorandum of cross-objections was allowed only to the extent of Rs. 150. It was held that both the decree and the memorandum of cross-objections amounted to one decree and since the subject-matter of the suit in the trial Court and in the appeal was upwards of Rs. 10,000 the plaintiff's application for a certificate that he was entitled to appeal to His Majesty in Council was granted. These cases have been distinguished in the later decisions on the principle that the liability to account is one and entire and indivisible and that the decree covers both the appeal and the memorandum of cross-objections and cannot be split up for purposes of appeal to the Privy Council. At the same time it has been pointed out that oneness of the decree does not preclude the question being considered whether it comprises one decision or several decisions.

13. The case bearing upon this point where all aspects of the matter and the full implications of the Privy Council decision in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : I.L.R. 51 Cal. 969 (P.C.) were discussed is the decision of Venkatasubba Rao and Cornish, JJ., in Venkitaswami Chettiar v. Sekkutti Pillai : (1936)71MLJ580 . There the facts were these. S died leaving his widow the fourth defendant and two sons the first and second defendants. The third defendant was the son of the first defendant. The first and fourth defendants had executed after the death of S a mortgage bond in favour of the plaintiff. He sued on that bond and the trial Court passed a decree for the full amount claimed against defendants i and 4 who executed the bond and as regards the 2nd and 3rd defendants they were held liable only for a fraction of the debt. On an appeal filed by the plaintiff to the High Court the decree against defendants 1 and 4 was confirmed but so far as the third defendant was concerned, his share of the joint family property was held liable for almost the full amount claimed. The decree so far as the second defendant was concerned was confirmed. There was thus a variance only with regard to the third defendant to his disadvantage. The plaintiff applied for leave to appeal to the Privy Council in so far as his claim against the second defendant was disallowed. But as stated already, so far as the second defendant was concerned, the trial Court's decree had been affirmed. The question was whether in these circumstances the judgment of the High Court was an affirming one or not. Venkatasubba Rao,J., referred to the two Calcutta decisions cited above, Narendra Lal v. Gopendra Lal : AIR1927Cal543 and Bibhootibhooshan Datta v. Sreepati Datta I.L.R. (1934) Cal. 257 and pointed out that what is to be regarded is not the decision as a whole but the decision as it affects the subject-matter in dispute and that is the proper test. He said:

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).

He then referred to the Privy Council decision in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : I.L.R. 51 Cal.969 (P.C.) and observed:

Their Lordships, holding that the petitioners had a right of appeal, observed that the appeal should be limited to the right 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 principles, which till then, the Indian Courts had, without question applied?

It was however conceded in that ruling that the Privy Council case is authority for the position that if as regards the subject-matter in dispute in the appeal the appellate Court has varied the lower Court's decision, the appellate decree is not an affirming one. This decision was followed in Velayya v. H.R.E. Board, Madras : AIR1938Mad631 , K.V. Pandian v. Rev. Pignot : AIR1943Mad67 and by a Bench consisting of Horwill and Kuppuswami Ayyar, JJ., in Mahant Prayagdosji Varu v. T.T. Devasthanam Committee C.M.P. Nos. 3231 and 3232 of 1945.. In the first of these cases the Bench consisted of Venkatasubba Rao and Abdur Rahman, JJ., and the leading judgment was given by Venkatasubba Rao, J. He referred to his earlier decision in Venkitaswami Chetliar v. Sekkutti Pillai : (1936)71MLJ580 and made a fresh point in this case which may be put in his own words. After adverting to the language of Sections 109 and no, Civil Procedure Code, he pointed out:

A careful reading of the relevant provisions will in my opinion dispel all difficulty. Sections 109 and no, C.P. Code, deal with the matter under consideration and must be read together. . . . . The contention put forward misses the significance of the two different expressions employed in these provisions. In connection with the High Court, the words used are, 'the decree' whereas in regard to the lower Court, the expression is ' the decision '. I fail to see why these two expressions should be held to mean exactly the same thing. It is reasonable to hold that the legislature employed two different expressions to convey two different ideas. A single decree may comprise several decisions and each decision may relate to a distinct subject-matter. It is all the more necessary that this distinction should be kept in view as by ignoring it'several anomalies would result as already shown.

In connection with the unreported decision of Horwill and Kuppuswami Ayyar, JJ., it may be noted in passing that an application for special leave was made to the Privy Council against the judgment of this Court in that appeal but the application was rejected by the Privy Council on 2nd August, 1946.

14. The question arose recently before a Full Bench of this Court in Gangadhara Aiyar v. Subramania Sastrigal : AIR1946Mad539 . There a reversioner to the estate of one Sundaram Iyer deceased sued for a declaration that the eleven items of properties belonged to his estate and that the deed of settlement executed by Sundaram Iyer's mother in respect of those properties was void, and not binding on him. The trial Court granted him a declaration only in respect of six of those eleven items and dismissed the rest of his claim. Defendants 2, 3 and 4 appealed to the High Court while the plaintiff filed a memorandum of cross-objections in respect of four of the remaining five items. The defendants' appeal was dismissed but the plaintiff's memorandum of cross-objections was allowed. The defendants proposed to appeal to the Privy Council in respect of the ten properties awarded to the plaintiff. The value of the eleven properties in suit was well over Rs. 10,000 but the value of the four properties referred to in the memorandum of cross-objecticns was only Rs. 9,190. The contention was that since there were concurrent findings so far as six of the properties were concerned the petitioners could appeal only with regard to the four properties awarded to the plaintiff by this Court on appeal and those items did not fulfil the requirement of Section 110, Civil Procedure Code, with regard to value. Upon those facts the Full Bench found that, the decree of this Court undoubtedly varied the decree of the trial Court in important respects because it gave four more items of properties to the plaintiff. Several decisions were cited and examined with reference to the scope of the Privy Council decision in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : I.L.R. 51 Cal.969 (P.C.) and the learned Chief Justice said:

There is here a pronouncement of the Judicial Committee that where there is a variance of the decree passed by the trial Court, the party affected thereby is entitled as of right to a certificate subject, of course, to the requirements of the Code being fulfilled with regard to value.

15. Referring to Venkitaswami Chettiar v. Sehkutti Pillai : (1936)71MLJ580 , the Full Bench said that they saw no reason to question the correctness of that decision on the peculiar facts of that case. The distinction that was drawn in Venkatasubba Rao's judgment between the Words 'decree or final order' in Clause (3) of Section 110 and the term ' the subject-matter ' mentioned in Clause (1) was specifically referred to without dissent. With reference to the decisions in Velayya v. H.R.E. Board, Madras : AIR1938Mad631 and Chockalingam Chetty v. The Official Assignee of Madras : (1940)2MLJ645 , it was pointed out that they do not go beyond Venkitaswami Chettiar v. Sekkutti Pillai : (1936)71MLJ580 .

16. The opposite view finds expression in the decision of a Special Bench of three Judges of the High Court at Patna in Brajisundar Deb v. Rajendra Narayan I.L.R. (1941) Pat. 459, which followed a Full Bench decision of the Allahabad High Court in Jaggo Bai v. Harihar Prasad Singh I.L.R. (1941) All. 180. The former case overruled the decision of the same High Court in Mahabir Prasad v. Brij Mohan Prasad I.L.R. (1936) 15 Pat. 637, which had acted upon the view taken in the Calcutta, Madras, Bombay and Lahore High Courts. The Patna Special Bench reviewed the various authorities on the subject and while observing that the point involved was a difficult one considered the true test in the light of the Privy Council decision in Annapurnabai v. Ruprao (1924) L.R. 51 IndAp 319 : I.L.R. 51 Cal.969 (P.C.), to be whether the decision of the Court below as, a whole had been affirmed by the High Court and not whether the decision on the point or points left in dispute had been affirmed by the High Court. In the opinion of the Special Bench the expression 'decision of the Court immediately below the Court passing such decree ' used in section no means the same as the expression ' decree of the Court below,' a view which as indicated before is directly in conflict with that uniformly taken by this Court in a series of decisions some of which have been cited above.

17. The four Bench decisions of this Court which have been discussed above must be held to be still in force and acting upon these decisions we must hold that when the appellate decree modifies the original decree upon a single point and that completely in the appellant's favour so that he has no further grievance in that matter, he cannot have because of that modification, a right of appeal on other points on which the Courts have concurred without showing that there is a substantial question of law involved. It is well known that the course normally pursued by their Lordships of the Privy Council is not to disturb the concurrent findings on questions of fact and it would be indeed curious that the provisions of the Code should have been so framed as to allow a litigant to take an appeal to the Privy Council on a single question of fact which has already been concluded by such concurrent findings of fact which will not ordinarily be disturbed. If the subject-matter of the dispute in appeal had been the amount of the decree or the amount of damages a variation whether to the prejudice or in favour of the petitioner would not alter the decree of variance into one of affirmance. But where the question in dispute is on a totally different point such as the question of debts due by the family, as in the present case in regard to which the applicant has succeeded and succeeded altogether so that he has no further grievance in the matter, he cannot without showing a substantial question of law have a right to litigate upon other points upon which the Courts have been in agreement. It need hardly be added that treating the decree as one of affirmance there is no substantial question of law involved, since the correctness of the principles applied to the facts of this case has not at any time either during the appeal or at the hearing of this petition been challenged. Both the objections raised by the respondents have to be upheld. The requirements of Section 110 as regards the value have not been fulfilled. The decree is one of affirmance and no substantial question of law is involved. The petition is dismissed with costs of the first respondent.


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