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Chittam Subba Rao Vs. Vela Mankanni Chelamayya - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 7265 of 1951
Judge
Reported inAIR1952Mad771; (1952)IIMLJ365
ActsConstitution of India - Article 133; Code of Civil Procedure (CPC) , 1908 - Sections 110
AppellantChittam Subba Rao
RespondentVela Mankanni Chelamayya
Appellant AdvocateSankara Sastri, Adv. for ;Suryanarayana Rao, Adv. and ;Ramakrishna Rao, Adv.
Respondent AdvocateP. Satyanarayana Raju, Adv.
Cases ReferredEswariah v. Rameswarayya
Excerpt:
constitution of india, article 133--code of civil procedure (act v of 1908), sections 109, 110 and order xlv, rules 2, 3 and 8--supreme court, leave to appeal to--trial court's decree-- substantial modification by high court--subject matter of modification still in dispute before supreme court--appellant entitled to leave as of right--such modification in favour of appellant--immaterial;if the requirements as to pecuniary valuation contained in article 133 of the constitution of india are satisfied, an applicant is entitled as of right to leave to appeal to the supreme court if the decree of the court of first instance is modified substantially by the decree of the high court, where the matter in respect of which it has been modified is a matter in dispute before the supreme court,.....1. this application for leave to appeal to the supreme court of india against the judgment and decree in appeal no. 253 of 1947 on the file of this court originally came on before subba rao and panchapakesu aiyar jj. who had disposed of the appeal. the learned judges found there was a conflict of decisions of division benches and have referred the following question to a full bench:"whether an appeal will lie as of right to the supreme court from any judgment, decree or final order of the high court if the decree of the first-court is modified in favour of the applicant but in other respects confirmed and if the requirements of the pecuniary valuation are satisfied, but no substantial question of law is involved."2. to understand the scope of the question referred, it is necessary to.....
Judgment:
1. This application for leave to appeal to the Supreme Court of India against the judgment and decree in Appeal No. 253 of 1947 on the file of this court originally came on before Subba Rao and Panchapakesu Aiyar JJ. who had disposed of the appeal. The learned Judges found there was a conflict of decisions of Division Benches and have referred the following question to a Full Bench:

"Whether an appeal will lie as of right to the Supreme Court from any judgment, decree or final order of the High Court if the decree of the first-court is modified in favour of the applicant but in other respects confirmed and if the requirements of the pecuniary valuation are satisfied, but no substantial question of law is involved."

2. To understand the scope of the question referred, it is necessary to mention the relevant facts. App. No. 253 of 1947 arose out of a suit O.S. No. 43 of 1946 instituted in the court of the Subordinate Judge of Ellore by the respondent to this application, Chalamayya against the applicant Subba Rao and five others for a declaration that a Will dated 23rd December 1944, Ex, D. 7, alleged to have been executed by Kalla Samoamurthi in favour of the first defendant, Subba Rao, was false and forged and that the first defendant, obtained no fights thereunder and for possession of the properties set out in Schedules B and C to the plaint, for recovery of mesne profits and for directing the first defend-ant to render an account of the monies of the deceased Sambamurthi in his hands. The respondent relied upon another Will, Ex, P. 1, alleged to have been executed by the said Sambamurthi in his favour on 23th November 1944. The learned Subordinate Judge decreed the suit holding that Ex. P. 7 was not a true Will and that Ex. P. 1 was the last Will and testament of the said Sambamurthi. That decree in so far as it is material runs as follows:

"1. The plaintiff do recover possession of the plaint B schedule properties from the defendants.

2. The plaintiff be not entitled to recover possession of the C schedule properties,

3. The first defendant do render an account of the monies of Sambamurthi in his hands."

In the appeal to the High Court from this decree by the first defendant (Appeal No. 253 of 1947) this court set aside the decree of the trial court in so far as it granted the relief of accounting against the first defendant but upheld the finding of the trial court as regards the Wills. The result was that the decree of the lower court was modified by deletion of the clause relating to" accounting. The first defendant, the appellant in Appeal No. 253 of 1947, seeks to appeal to the Supreme Court against this decree. It is common ground that the value of the subject-matter of the suit in the court of first instance as well as the value of the subject-matter in disputa on appeal to the Supreme Court is upwards of Rs. 20,000. It is also clear, and the learned Judges who made the reference proceeded on the footing, that no substantial questions of law were involved in the appeal.

3. The provision which now embodies the right of appeal to the Supreme Court is Article' 133 of the Constitution. Clause 1 of that Article runs thus:

"An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies -- (a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law, or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court; and when the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law."

Substantially this reproduces the provisions of Sections 109 and 110, C. P. C. as they stood on the date of the commencement of the Constitution. The only alteration which needs notice is that instead of the words "the amount or value of the subject matter of the suit in the court of first instance" which occurs in Section 110, C.P.C we have the words "the amount or value of the subject matter of the dispute in the court of first instance" and in lieu of the words "and the amount or value of the subject matter in dispute on appeal" the following words were substituted, namely, "and still in dispute on appeal."

4. The decision of the question now referred to us depends upon the construction of the following words in Article 133 namely:

"Where the judgment, decree or final order appealed from affirms the decision of the court immediately below."

Though the words apparently look clear and simple, there has been not a little divergence of judicial opinion as to their construction. Difficulties have always arisen on account of the peculiar facts of each case and not often the decision in each case has not been completely unaffected by a consideration of the reasonableness of the conclusion which would follow on the adoption of one or other of the possible constructions.

5. I think it is useful to refer to the leading decisions of this court on this question. I shall first set out the actual decision in each of the cases without commenting on the observations in the several judgments and then try to ascertain if there is a real conflict in principle and if there is, on what point or points.

6. The earliest case to which I need refer is that in -- 'Perichiappa Chettiar v. Nachiappan', 35 Mad. L. W. 206. In a suit for account against an agent the plaintiff valued his claim at Rs. 40,000. The trial court parsed a-decree in favour of the plaintiff for Rs. 5682. Against this decree the defendant appealed to the High Court and the plaintiff preferred a memorandum of cross objections claiming a decree for a further amount. He valued his memorandum at Rs. 20,000. The High Court allowed the defendant's appeal in part and reduced the amount decreed by the trial court by about Rs. 4,000, allowed the cross objections preferred by the plaintiff only to a small extent of Rs. 150 and dismissed it in respect of the remaining sum of Rs. 1S850. The plaintiff applied for leave to appeal to the Privy Council. It was held by Reilly and Ananthakrishna Aiyar JJ. that the plaintiff was entitled to leave as of right under Section 110 C.P.C. It may be observed here that the decree of the trial court as for a certain amount of money ascertained as a result of taking an account. The High Court's decree was for a different amount.

7. The next case is -- 'Venkitaswami v. Sakkutti', ILR. (1937) Mad.

121. There was a suit on a mortgage bond executed by the first and fourth defendants, one of the sons and the widow of a deceased Hindu. The suit was brought not only against them but also against the second defendant who was another son of the deceased and the third defendant, the son of the first defendant. The trial court passed a decree for the full amount claimed against the first and fourth defendants. The second and third defendants were held liable only for a small portion of the debt. The plaintiff filed an appeal to the High Court against all the defendants. The High Court confirmed the decree of the trial court as against defendants 1, 2 and 4. but reversed the decision of the lower court as regards the third defendant and held that his share in the front family properties was liable almost for the full amount claimed. The plaintiff applied for leave to appeal to His Majesty in Council against the judgment of the Hign Court in so far as his claim against the second defendant was disallowed, he had already obtained practically all he claimed against defendants 1, 3 and 4. it was held by Venkatasubba Rao and Cornish JJ. that the application was unsustainable inasmuch as the decree against the second defendant was one of affirmance and there was no substantial question of law involved.

8. In -- 'Chavali Velayya v. Board of Commissioners, H. R. E., Madras', 1938-1 Mad L J 487 the petitioners in the application for leave to appeal had claimed title to five plots bearing distinct survey numbers. The court of first instance held that these five items belonged to the deity and not to the petitioners who were the 'archakas.' On appeal the High Court upheld the petitioners' claim as regards two of the items but confirmed the decision of the court below as regards the remaining three items. The appeal to His Majesty in Council therefore related only to the three items as to which the High Court's decree had affirmed the lower court's decision. It was held by Venkatasubba Rao and Abdur Rahman JJ. that leave could not be granted as the decree of the High Court must be deemed to have affirmed the decision of the trial court and there was no substantial question of law involved.

9. The decision in -- 'Gangadhara v. Subra-mania', I.L.R. (1947) Mad. 6 (F.B.), is that of a Full Bench. One S filed a suit for a declaration that eleven items of property described, in the plaint schedule belonged to the estate of one Sundaram Aiyar and that a deed of settlement executed by Sundaram Aiyar's mother in respect of these properties was void. The plaintiff claimed the properties as the reversioner of Sundaram Aiyar. The trial Court decreed the suit in respect of six of the eleven items but dismissed the rest of the claim. Defendants 2, 3 and 4 appealed to the High Court in respect of the six items decreed to the plaintiff. The plaintiff in his turn filed a memorandum of cross objections claiming four of the five items disallowed by the trial court. The appeal was dismissed but the memorandum of cross objections was allowed and the suit was decreed in respect of ten of the eleven items claimed.

The second, third and fourth defendants sought a certificate permitting an appeal to His Majesty in Council. It was contended by the plaintiff that the petitioners, had a right of appeal only with regard to the four items in respect of which this court had reversed the decision of the court below, but they were not entitled to a certificate so far as six of the items in respect of which the High Court had affirmed the decision of the lower court were concerned, It was held by a Full Bench to which I was a party that the petitioners were entitled to a certificate as the decree of the High Court was not one of affirmance,

10. 'Lakshmanan v. Thangam', I.L.R. (1947) Mad. 744 was a case in which the decree of the trial court was affirmed 'in toto' except for a alight variation made in the mstter of certain debts alleged to be due by the family. The application for leave to appeal to His Majesty in Council was by defendants 1 and 3 to 9 and the variance made by this court was entirely in their favour. In fact, this question did not form part of the subject matter in dispute in the proposed appeal, which was confined to certain properties in schedule C with regard to which the High Court completely affirmed the decree of the trial court. The learned Judges, Wads-worth O. C. J. and Yahya Ali J. considered that the decree of the High Court with regard to the matters on appeal to the Privy Council was one of affirmance within the meaning of Section 110, C. P. C.

11. The last of the reported cases on the point is -- 'Viraraghava Rao v. Narasimha Rao', I.L.R. (1950) Mad. 381. In this case the suit was for eviction of the defendants from a picture house and for damages. The defendants resisted the suit mainly on the ground that they were entitled to the protection given to tenants under the Madras Rent Control Act. The trial court negatived the defence and decreed the suit in favour of the plaintiff with damages at the rate of Rs. 200 per day. There was an appeal by the defendants in which the High Court agreed with the lower court that the defendants were not tenants, but on the quantum of damages the lower court's decree was modified in favour of the defendants by a reduction of the rate from Rs. 200 to Rs. 50 per day. The defendants applied for leave to appeal to the Federal Court. It was held by Horwill and Raghava Rao JJ. that they were entitled to get leave as of right even though no substantial question of law was involved in the appeal, as the decree of the High Court was not one of affirmance. The proposed appeal was in respect of both damages and eviction.

12. All the above decisions as well as other decisions dealing with this question almost invariably refer to the ruling of the Privy Council in -- 'Annapurnabai v. Ruprao', 51 Cal 969 (P.C.). In that case the suit was for recovery of possession of certain properties on the ground that the plaintiff was the validly adopted son of one Shankar Rao. The first defendant was the junior widow of Shankar Rao and the second defendant was alleged to have been adopted to Shankar Rao by the first defendant. They denied the adoption alleged by the plaintiff and set up the adoption of the second defendant. Further the first defendant, the widow claimed to be entitled to Rs. 3000 per annum for maintenance out of the estate. The trial court held that the plaintiff's adoption was true and the alleged adoption of the second defendant was not proved. It however held that the first defendant was entitled to maintenance at the rate of Rs. 800 per annum. There was an appeal to the court of the Judicial Commissioner. The appellate court modified the decree as regards maintenance by increasing the rate from Rs. 800 to Rs. 1200 per annum and in other respects the decree was confirmed.

The defendants applied for leave to appeal to the Privy Council, but their application was dismissed on the ground that the decree of the first court had been affirmed except in respect of a small change in favour of one of the applicants and that no question of law was involved. Thereupon the defendants applied to the Privy Council for special leave. The argument of Sir George Lowndes for the petitioners was that the appellate court did not affirm the deems of the first court but varied it and consequently it was not material under Section 110, C. P. C. whether any substantial question of law was involved. But having regard to the concurrent findings the petitioners desired to appeal only with regard to the amount of the maintenance. The respondent did not appear. Special leave to appeal was granted but was limited to the question of maintenance. In delivering the Judgment of their Lordships, Lord Dunedin observed:

"In the opinion of their Lordships the contention of the petitioners' counsel as to the effect of. Section 110, C. P. C. is correct. They had therefore a right of appeal,"

13. From this cryptic judgment much has been sought to be inferred by the courts in India. To my mind the only principle which that ruling established is that if in respect of a matter in controversy between the parties there has been a variation by the High Court in favour of either party then it is not permissible to dissect the matter into two artificial parts, namely, the part in respect of which there has been an affirmance & the part as regards which there has not been. This artificial dissection was the basis adopted in the earlier case of -- 'Raja Sree Nath Roy v. Secy. of State', 8 Cal. W. N. 294 and it must be deemed to have been overruled by the Privy Council. If there is one single claim, say, for maintenance or damages or for the recovery of property based on a particular title and the trial court passes a decree granting the plaintiff a partial relief and on appeal the High Court modifies the decree by altering the relief, then there is a right of appeal without any substantial question of law being involved in the case. This variation need not be against the party applying for leave. It may be in his favour, though not entirely in his favour. This was all that was decided in that case. One important fact must not be overlooked in applying the principle laid down by the Privy Council in that case and that is that the matter in respect of which there had been a variation was a matter still in dispute and formed part of the subject matter of the appeal to the Privy Council.

14. Now, in my opinion, there is no real conflict between any of the decisions, as such of this court mentioned by me above apart from observations made in them. Every one of these decisions can be supported by the application of certain common principles. These principles may be briefly stated thus:

1. If the judgment or decree of the High Court varies the decision of the lower court in respect of a matter in controversy in the proposed appeal to the Privy Council, then there is a right of appeal not only to the person against whom the variation has been made, but even to the party in whose favour the variation has been made. But it is necessary that the matter in respect of which there has been a variation should be the subject matter of the proposed appeal to the Privy Council.

2. A matter in controversy cannot be split up or analysed or dissected into component parts or arbitrary divisions. The true test will be to determine the nature of the dispute or controversy.

3. If the matter in respect of which there has been a variation is not the subject matter of the proposed appeal, then such variation would not confer a right of appeal. As regards matters unconnected with the matter in respect of which there has been a variation 'Ex hypothesi' this will be the case when the variation has been completely in favour of the applicant.

15. Every one of the decisions can be justified by an application of the principles I have set out. In -- 'Perichiappa Chettiar v. Nachiappan'. 35 Mad. L. W. 206 there was only one matter in controversy, namely, what was the amount due to the plaintiff from the defendant, his agent. The trial court found that Rs. 5682 was the amount due, whereas the High Court decreed a different sum. There was therefore a clear variation in respect of the matter on appeal to the Privy Council. In -- 'Venkitaswami v. Sakkutti', I.L.R. (1937) Mad. 121 the suit was against four defendants. The trial court had passed a decree against the 1st and 4th defendants but had practically dismissed the suit as against the 2nd and third defendants. On appeal the High Court confirmed the decree in so far as defendants L 2 and 4 were concerned, but reversed the decision of the lower court as regards the third defendant. This reversal was in favour of the plaintiff. The subject matter of the proposed appeal to His Majesty in Council was the plaintiff's claim against the second defendant only. The question therefore was the liability of the 2nd defendant. So far as that was concerned the decree of the High Court had affirmed the decision of the trial court. There was no doubt a variation made by the High Court, but that was in respect of the third defendant against whom the plaintiff obtained all the relief that he could and was satisfied with such, relief. Therefore the plaintiff's claim as against the third defendant could not be and was not a part of the proposed appeal to the Privy Council.

The learned Judges held that so far as the second defendant was concerned, the decree of the High Court was one of affirmance. -- 'Chavali Velayya v. Board of Commrs. H. R. E., Madras', 1938-1 Mad. L. J. 487 may at first sight appear to strike a different note. But on a closer analysis it will be evident that that decision also can be explained in the light of the principles set out above. In that case no doubt the petitioners had claimed title to five plots of land, but they based their title on the same grant. The plea of the contesting defendants was that the grant was in favour of the deity and not the petitioners who were the Archakas. The question therefore related to the construction of the grant, namely, whether the grant was to the deity or to the archakas. The High Court agreeing with the court below held that the grant was to the deity. But they excluded two of the five items on the ground that they had been inadvertently included owing to a mistake and that the grant did not comprise them. So, on the question in controversy, namely, whether the grant was to the archakas or to the deity there was an affirmance of the decision of the court below. The application for leave was therefore rightly dismissed.

It may also be observed that the two items in respect of which the High Court had allowed the appeal did not form part of the subject matter of the appeal to the Privy Council. In the Full Bench case in -- 'Gangadhara v. Subramania', I.L.R. (1947) Mad. 6 (F.B.) the matter in controversy was as regards the properties which belonged to the estate of the last male holder. Eleven items were claimed to belong to his estate. The trial court held that six of the said items belonged to the estate. But on appeal ten of the items were held to belong to the estate. The defendant's application for leave was granted because there had been a variation by the High Court of the decree of the trial court. Though there were several items the matter in controversy must be deemed to be only one, viz., what were the properties belonging to the deceased holder. It may be remarked in passing that there was a prayer in the plaint that a deed of settlement executed in respect of these properties was void. The settlement covered all these items, but the only controversy was whether the settlement was void in part or entirely. There was a variation on this question and therefore it was held that the petitioners were entitled to leave to appeal.

Here again, the matter in controversy was also the subject matter of the appeal to the Privy Council. In -- 'Lakshmanan v. Thangam', I.L.R. (1947) Mad. 744, though there was a variance made by the High Court the matter in respect of which there was variance did not form part of the subject matter in dispute in the proposed appeal. The learned Judges therefore refused to grant leave. In -- 'Viraraghava Rao v. 'Narasimha Rao', I.L.R. (1950) Mad. 381 one of the matters in controversy, which however was also included in the subject matter of the proposed appeal, was the quantum of damages, and there had been a variation as to this. The" petitioners were therefore entitled to leave as of right.

16. It will thus be seen that none of the decisions as such in the cases above cited is in conflict with the others. I am in entire agreement with the following statement of the law on the point by Yahya AH J. who delivered the judgment on behalf of the Division Bench in -- 'Lakshmanan v. Thangam', I.L.R. (1947) Mad. 744:

".....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."

The decision in -- 'Viraraghava Rao v. Narasimha Rao', I.L.R. (1950) Mad 381 can be supported on the basis of this legal position. In fact, of the two learned Judges one of them, Horwill J. expressly accepted and followed the ruling in -- 'Lakshmanan v. Thangam', I. L. R. (1947) Mad. 744. The other learned Judge, Raghava Rao J. said,

"......it goes without saying that even on the narrower view adopted by this court in -- 'Lakshmanan y. Thangam', I. L. R. (1947) Mad. 744 which is what my learned brother is prepared to accept, the applicant is entitled to the certificate asked for, because this is not a case of complete variance of the lower court's decree on the question of damages, which leaves no further grievance to be agitated in this regard before a higher tribunal."

It only remains to consider the observations of Raghava Rao J. in -- 'Viraraghava Rao v. Narasimha Rao', I.L.R. (1950) Mad. 331 on the construction of the provision under dismission. At the outset I may say that I entirely agree with him that in construing a statutory provision speculations ought not to enter about what the legislature may or may not have intended apart from what it has expressed by the language that it has employed. I am also of opinion that courts cannot add to the language actually employed & thus give an unwarranted extension to the scope of a statutory provision. At the same time I do not think that the letter of the statutory provisions should compel a court to an unreasonable construction if it is possible to take a reasonable view by taking the letter of the provision along with its substance. For instance, take a case where the High Court confirms substantially the decision of the court below but makes a formal modification or corrects an inadvertent error, practically on the, consent of both the parties, even then, applying the letter of the law should we hold that the judgment of this court is not a decree of affirmance? I am not clear if the view of the learned Judge is that we should hold so because of the decision of the Privy Council in -- 'Annapurna Bai v. Ruprao , 51 Cal 909 (P.C.).

I think one should not construe the short pronouncement of Lord Dunedin in that case as if it were in itself a statutory provision. That pronouncement must be understood having regard to the facts of that case, and so understood I am of opinion that Rankin C. J.'s view in -- 'Narendralal v. Gopendra', A.I.R. 1927 Cal. 543 is "logical, simple and reasonable and not illogical, laboured and not particularly well reasoned" as Raghava Rao J. thinks (see page 395). With all respect to that learned Judge I do not agree with him that Rankin C. J. was in any way delimiting the effect of the Privy Council decision in a manner not warranted by the plain language of their Lordships. I do not also agree with him that the reasoning in --'Perichiappa Chettiar v. Nachiappan', 35 Mad. L. W. 206 is in any way inconsistent with the view of Rankin C. J. in -- 'Narendralal v. Gopendra', A.I.R. 1927 Cal. 543. That reasoning must again be taken with the facts of the case before the learned Judges. The learned Judges repelled the attempt to construe the last clause of Section 110, C. P. C. as if it ran,

"Provided that so far as the decree or final order appealed from in respect of any separable part of the case affirms, etc., and that if that part involved no substantial question of law it should be excluded in calculating the necessary Rs. 10,000."

So far I am in entire agreement. But I do not see how it follows from the reasoning in -- 'Perichiappa v. Nachiappan', 35 Mad. L. W. 206 that a party who feels aggrieved by the decision of the High, Court on a particular matter is entitled as of right to appeal to the Privy Council (or Supremo Court) in respect of that matter on the ground that in respect of some other matter there has been a variation made by the High Court, though no substantial question is involved as regards the matter in dispute on appeal to the Privy Council (or Supreme Court).

17. With all respect to the learned Judge and after re-reading carefully the judgment of the Full Bench in --- 'Gangadhara v. Subramania', ILR (1947) Mad 6 (FB) (and I was one of the Bench), I am unable to follow Raghava Rao J. when he says that the effect of that decision is that it has accepted -- 'Perichiappa Chettiar v. Nachiappan', 35 Mad L W 206 in preference to -- 'Venkitasami v. Sekutti', ILR (1937) Mad 121. Besides I am wholly intrigued by the way in which that learned Judge disposes of the decision in -- 'Venkitnswami v. Sakkutii', ILR (1937) Mad 121. Apparently, he is not prepared to hold that the decision in that case was wrong. In the face of the express statement of the Full Bench that there was no reason to question the correctness of that decision it would not have been open to the learned Judge to say that the decision was not correct. Then, how does he support that decision even on the basis of what he calls "the peculiar facts of that case?" The learned Judge says:

"The decision in -- 'Venkataswami v. Sakkutti', ILR (1937) Mad 121 was, in other words, held correct, because the party seeking leave i.e., the plaintiff, sought to take advantage of the High Court's reversal of the decree of the trial court against the third defendant for making out a right of appeal against the second defendant, against whom he had concurrently lost in both the courts."

I take it that mis is the learned Judge's justification of that decision. Alongside the above remarks I shall place the following observations of the learned Judge in the next page,

"The true view to take of the matter in the existing state of the case law of this court and with due regard, in particular, to the Full Bench ruling in -- 'Gangadhara v. Subrama-nia', ILR (1947) Mad 6 F. B. is that if 'quoad' the party seeking leave to appeal, the decree sought to be appealed against is not one of wholesale affirmance, it does not matter in what particular or to what extent the variation has taken place or whether the variation wholly or to the extent to which it has gone is in favour of the party seeking to appeal or against him."

18. With due deference to the learned Judge have tried to reconcile but have not been able to succesd in reconciling these two statements.

19. I am of opinion that there is nothing in the language of the statute or in the ruling of the Judicial Committee in -- 'Annapurna Bai v. Ruprao', 51 Cal 969 (PC) or in the judgment of the Full Bencn in -- 'Uangadnara v. Subramania', ILR (1947) Mad 6 (FB) which is inconsistent with the principles which I have set out earlier in this judgment. I think it a very reasonable view to take that in coming to a decision on the question of affirmance, the subject matter of the appeal to the Privy Council (or the Supreme Court) is a relevant factor, though it is not permissible to dissect a matter in controversy into its component parts or make an artificial division of the matter into parts and to hold that as regards one part there has been affirmance and as regards the other part there has not been. The matter in controversy should be taken in its entirety.

20. It may happen sometimes that the subject matter of the appeal to the Privy Council ,(or the Supreme Court) comprises more than one matter in dispute. Suppose there has been a variation in respect of one of these matters only, then is the party entitled to leave as of right even though no substantial question of law is Involved? My answer is yes, because it is not open to this Court to direct that the appeal should be confined only to a part of the subject matter of the proposed appeal. If as regards one matter in dispute the judgment of this court is not one of affirmance, then the aggrieved party is entitled to leave. Now, it is well established that an appeal to the Privy Council (Supreme Court) can only be filed against a judgment and decree of this court. Even though only a portion of the judgment or decree is challenged, nevertheless, the appeal is against the judgment and decree. The following observations of Viscount Dunedin make this clear: "The appellant's counsel strenuously urged that the appeal was not against the decree, but only against the items in the decree. This is a complete misunderstanding. An appeal must be against a decree as pronounced. It may be rested on an argument directed to special items, but the appeal itself must be against the decree and the decree alone." --'Jowad Hussain v. Gendan Singh', 6 Pat 24 (PC) at pages 27-28.

21. I may give as an analogous instance the case of an admission of a second appeal. If there is a substantial question of law as regards one of the matters in dispute, this court is bound to admit the second appeal. But it cannot purport to admit it only on that point, because the. second appeal is preferred against the judgment and decree of the lower appellate court, vide -- ''Eswariah v. Rameswarayya', 1940-1 Mad L J 857 (FB).

22. My answer to the question referred to the Full Bench is as follows:

If the requirements of pecuniary valuation are satisfied, an appellant is entitled as of right to leave to appeal to the Supreme Court if the decree of the court of first instance is modified: substantially by the decree of the High Court, where the matter in respect of which it has been modified is a matter in dispute before the Supreme Court irrespective of the fact whether the modification is in favour of the applicant or not and although no substantial question of law is involved. But if the modification is in respect of a matter not comprised in the subject matter still in dispute on appeal to the Supreme Court, the applicant is not entitled to leave as of right.


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