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Chavali Velayya Vs. the President of the Board of Commissioners for Hindu Religious Endowments - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad631; (1938)1MLJ487
AppellantChavali Velayya
RespondentThe President of the Board of Commissioners for Hindu Religious Endowments
Cases ReferredTassaduq Rasul Khan v. Kashi Ram
Excerpt:
- - 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. 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......majesty in council from any decree passed in appeal by a high court. (section 109.)2. where the decree appealed from affirms the decision of the court immediately below the court passing such decree, the appeal must involve some substantial question of law. (section 110.)8. 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.....
Judgment:

Venkatasubba Rao, J.

1. These are petitions for leave to appeal to His Majesty in Council (the judgment to be appealed from is reported in H.R.E. Board, Madras v. Koteswara Rao (1937) 446 L.W. 587. All of them excepting one may be easily disposed of. The question raised in each case is whether the property was a gift to the God or was an archaka service inam. The point turned upon the effect of the inam proceedings and it was held in an affirming judgment, upon a construction of the various inam papers, that the gifts were intended for the deity.

2. That the property in each case is of the requisite value under Section 110 of the Civil Procedure Code is not disputed. The High Court's decision being an affirming one, the only point that arises is, whether the proposed appeal involves some substantial question of law. The finding here was reached, as already stated, upon a construction of the inam papers and no question of law was raised:

Where the question to be decided is one of fact, it does not involve any issue of law merely because documents, which were not instruments of title-or otherwise the direct foundations of rights, but were really historical materials, have to be considered for the purpose of deciding the question.' Wali Muhammad v. Muhammad Bakhsh (1929) 59 M.L.J. 53 : L.R. 57 IndAp 86 : I.L.R. 11 Lah. 199 (P.C.).

3. Following this decision, I must hold that the question whether the gift was to the God or not, does not in the circumstances involve any substantial point of law.

4. A subsidiary question was raised in the appeals whether the requirement of Section 70 of the Hindu Religious Endowments-Act was fulfilled by the notice being served upon the archaka on the ground that he was the de facto trustee. The answer given in the affirmative was based on the clear language of the section itself. We understand that this view has been; taken by at least three Benches of this Court, and this beings so, it is hardly proper to treat the appeal as involving a substantial question of law.

5. As regards the remaining petition which relates to C.M.A. No. 125 of 1934, different considerations apply. (The judgment on this part of the case is reported in H.R.E. Board, Madras v. Koteswara Rao (1937) 46 L.W. 587 already cited, at page 595.) The archakas claimed title to five plots bearing five distinct survey; numbers. As in the other cases, so here, the High Court agreeing with the lower Court held that under the grant the archakas possessed no beneficial interest. But as to what the grant comprised, the lower Court made a mistake due to inadvertance, and that mistake alone the High Court rectified. The result was that out of the five terns held by the lower Court to belong to the deity, the High Court excluded two of them, on the ground that the grant did not comprise them; to this extent the decree of the lower Court was varied.

6. The proposed appeal by the archakas relates to the three items as to which the High Court's decree has affirmed the lower Court's decision. It is contended that the decree passed by the lower Court is single and indivisible and that the decree of the High Court, which has not affirmed it in its entirety, cannot be regarded as an affirming decree. In a recent case heard by Cornish, J., and myself, a similar contention was raised which we refuted in a considered judgment. The point was elaborately discussed there and it is unnecessary to repeat the reasons, which led us to the conclusion, that the oneness of the decree does not preclude the question being considered, whether it comprises one decision or several decisions. Venkitaswami Chettiar v. Sekkutti Pillai : (1936)71MLJ580 . The matter was discussed from the point of view, first of the case comprising several subject-matters and secondly of there being claims against several defendants. I put in the judgment delivered by me, several typical cases, in order to show the anomaly that would result, should the contention based on the singleness of the decree be allowed to prevail. The argument amounts to this; that when a decree is on its face single, it would be wrong to divide it up into parts. If this be correct, it would logically follow that when a decree deals with several alienees as from a Hindu widow, it should be treated as a single decree within the meaning of Section 110. This view was put forward but repeatedly repelled in several decisions such as Vaithilinga v. Somasundaram (1918) 36 M.L.J. 119 : I.L.R. 42 Mad. 228 and Tayamma v. Varadacharyulu : AIR1929Mad827 . In a Calcutta case the learned Judges speak of 'the enormity of the opposite view' : Bibhooti Bhooshan Datta v. Sreepati Datta I.L.R.(1934) 62 Cal. 257. In Venkitaswami Chettiar v. Sekkutti Pillai : (1936)71MLJ580 already cited, two propositions were deduced as flowing from certain decisions of the Judicial Committee; first, when there are several subject-matters comprised in the lower Court's decree, each should be regarded separately for deciding whether the High Court's decree is an affirming one or not under Section 110 although in some cases the question whether the lower Court's decree consists of one subject-matter or several subject-matters may present some difficulty; secondly, as regards the subject-matter to which the proposed appeal to the Privy Council relates, it makes no difference whatsoever whether the lower Court's decision has been varied to the prejudice of the applicant or in his favour.

7. Turning to the facts here, there can be no doubt that the excluded items stand on a footing different from the rest, and the High Court's decree must be treated as having affirmed the lower Court's decision in regard to three items and reversed it in regard to the remaining two. A careful reading of the relevant provisions will in my opinion dispel all difficulty. Sections 109 and 110, Civil Procedure Code, deal with the matter under consideration and must be read together. To quote the material words:

1. An appeal shall lie to His Majesty in Council from any decree passed in appeal by a High Court. (Section 109.)

2. Where the decree appealed from affirms the decision of the Court immediately below the Court passing such decree, the appeal must involve some substantial question of law. (Section 110.)

8. 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. As observed in my judgment in Venkitaswami Chettiar v. Sekkutti Pillai : (1936)71MLJ580 cited above:

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.

9. After again considering the matter very carefully I see no reason to depart from this view. It may be mentioned that this decision has since been followed in Baboo Lal v. Sri Ram I.L.R.(1937) 18 Lah. 268.

10. In the result, leave is refused and the petition in C.M.A. No. 125 of 1934 also is dismissed.

11. The applicant will pay the respondent's costs in all the petitions. We fix the advocate's fee in C.M.P. No. 3311 of 1937 at Rs. 60 and in each of the remaining eight petitions at Rs. 30.

Abdur Rahman, J.

12. While the case was being argued, I was placing a grammatical construction on the wordings of Section 110, Civil Procedure Code, and was inclined to the opinion that if a decree passed by the High Court modified the decision of the Subordinate Court in any respect, a party would be entitled to get leave to appeal to the Privy Council as long as the subject-matter was of the requisite value; and that it was unnecessary for him to show that a substantial question of law was also involved in the case. In view of the fact however that there were a fairly large number of decisions of various High Courts taking a different view, I was not quite confident of the interpretation which was being placed by me. I had assumed of course that the word 'decision' used in Section 110 was employed by the Legislature to express the decision of the entire suit. To a certain extent I was relying on the interpretation placed on that word by their Lordships of the Privy Council in Tassaduq Rasul Khan v. Kashi Ram (1902) L.R. 30 IndAp 35 : I.L.R. 25 All. 109 (P.C.).

13. On a further consideration and after some discussion with my learned brother, I had to alter my opinion and fall in with his view, which he has now expressed in his judgment, to the effect that the word 'decision' employed in Section 110 could be reasonably construed only in the manner suggested by him. I am still of the' opinion that if the word 'decree' had been used in the section in place of the word 'decision', the interpretation placed by me initially would probably be the correct one. But having regard to the fact that a permission for appeal to the Privy Council was being hedged in by several qualifications, I had to agree that the word 'decision' must have been employed by the Legislature to convey something different from either a judgment or a decree. The decree may comprise a number of decisions in respect of various subject-matters which may have been permitted by the Civil Procedure Code to be joined in one suit and if the decision of every subject-matter can be called a decision of that subject-matter, there is no reason to hold that the decision must necessarily be taken to cover the decision of all the subject-matters involved in a suit.

14. I would therefore agree with the order proposed by my learned brother.


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