1. This is an application under Article 133(1) of the Constitution of India for leave to appeal to the Supreme Court. The applicant was defendant No. 1 in a partition suit.
2. It is stated that the value of the properties, which were sought to be partitioned, was Rs. 59607/-. There is no dispute that the applicant's share is one-half. That being so, the value of the subject-matter in dispute in the court of first instance and in the proposed appeal is well over Rs. 20,000/-, even according to the principle that the valuation of appeals arising out of suits for partition is the valuation of the appellant's share.
3. The next question is whether the judgment sought to be appealed from is one of affirmance. It was on that point that the entire argument before us was concentrated.
4. As I have stated already, the petitioner before us was one of the defendants in the suit and the defence put forward by him was that the properties mentioned in the plaint were not liable to be partitioned, inasmuch as they were his self-acquired properties and that, necessarily, he was not liable to render any account to anybody. His claim that the properties were not liable to be partitioned was not accepted by the trial Court, which made a decree both for partition and accounts. The portion of the decree, which was concerned with an order for accounts, was expressed in the following language:
'That the defendant No. 1 is also directed to amicably render to the plaintiff's accounts in respect of the Ejmali properties mentioned in schedules 'Ka', 'Kha' and 'Ga' for the period from Chaitra, 1328 B.S. (March-April, 1920), till the date of the institution of the present suit on the footing that be was the Karta within five months from elate failing which a commissioner will be appointed on plaintiffs' application for the purpose and the cost thereof will be realised from defendant No. 1 in execution. That the defendant No. 1 will be liable to account for what he got in and not for what he ought to have got in with greater skill and diligence.'
5. From that decree defendant No. 1 appealed. The appeal failed on all points, but with regard to the decree for accounts, a slight change was made. What the appellate decree said was as follows:
'Defendant No. 1 is directed to amicably render to the plaintiff's accounts in respect of ejmali properties mentioned in schedules Ka, Kha and Ga to the date of the institution of the present suit only for the purpose of determining what assets were available for partition on the date of the suit. A commissioner will be appointed on the plaintiffs' application for the purpose, and the cost thereof will be realised from the defendant No. 1 in execution.'
6. It was contended by Mr. Sen Gupta that the judgment of this Court did not affirm the decision of the trial Court inasmuch as it clearly varied the decree made by the trial Court as regards the rendition of accounts. The contention urged was that if one went by the strict language of the concluding paragraph of Article 133(1), it would be unarguable that the judgment was a judgment of affirmance. But, so it was contended further, even if one took into account the refinements which had been introduced in some of the decisions of this Court, refinements which were not mutually very consistent, the judgment would still not be found to be a judgment of affirmance.
7. On behalf of the plaintiffs it was, on the other hand, contended by Mr. Sinha that the only variation which had been made by the appellate Court was a variation in the petitioner's favour and that, according to the decisions of this Court, the petitioner could not utilise that variation for the purpose of making out that the judgment was not one of affirmance and, on that basis, reopen other questions which stood concluded by the concurrent decisions of two Courts.
8. It will appear from an examination of the cases that in considering the question as to whether a judgment, modifying the judgment of the trial Court in the manner found in the present case, is a judgment of affirmance, some difficulty has been felt. A practice seems to have been established in this Court long ago to limit the enquiry only to that part of the case which was proposed to be taken on further appeal to the Privy Council and to enquire whether the decision with regard to that part was concurrent.
That practice was, to a certain extent, unsettled by the decision of the Privy Council in the case of -- 'Annapurnabai v. Ruprao , where it was held that if the plaintiff's claim was a money claim, which was decreed by the trial Court as to a certain part and then on appeal decreed by the Appellate Court as to a larger part, but still not fully decreed, the decision of the Appellate Court would not be a decision of affirmance. In the case of -- 'Narendra Lal Das v. Gopendra Lal Das : AIR1927Cal543 , which has not unnaturally come to be regarded as a leading decision on the subject, Sir George Rankin has to examine the decision of the Privy Council in -- 'Annapurna-bai's case (A)' and it appears that, for the time being at least, he was inclined to limit its application to cases of claims for money or claims for damages.
He observed that he did not read the decision of the Privy Council as requiring him to abandon the principle which this Court, along with other Courts, had been following for a long time and to cease to look into the subject-matter of the proposed appeal in order to see whether the judgment, covering the area of the appeal, was a judgment of affirmance. Significantly, however, Sir George Rankin added that he had some doubt as to whether in the end, the principle followed by this Court upto that time and which for the time being he would continue to follow, would be found to be in accordance with the true construction of Section 110 of the Code.
The principle laid down by Sir George Rankin has subsequently been followed in other cases, of which the case of -- 'Bibhuti Bhusan v. Sreepati Dutta : AIR1935Cal146 , is an apt example, although the absence of any statement of the necessary facts prevents the decision from being very helpful. There also, the learned Judges appear to have felt some doubt as to whether they were taking the right view, but they preferred to follow tradition and precedent in the absence of an authoritative decision of the Privy Council that the view was erroneous.
9. The principle, as far as I can see, is this. If a person has a particular claim or a case in regard to one of the matters involved in a suit and he succeeds only in part in the trial Court or fails there altogether, but in the Appellate Court he succeeds entirely, then such variation of the trial Court's decree in his favour cannot be made a ground for asserting that the judgment is not a judgment of affirmance and for claiming to be entitled to go on further appeal with regard to other matters on which both the Courts have held against him. One can understand the reason behind this principle, which is plainly good reason.
The reason is that with regard to the matter to which the variation relates, there will be necessarily no appeal, since as to that matter the intending appellant has wholly succeeded and, therefore, that part of the judgment which will really be taken by him on further appeal, will be entirely a judgment of affirmance. But very different is the case where the variation in the intending appellant's favour falls short of his total claim as regards the particular matter concerned, because in such a case he will include the remainder of his claim even as, to that matter in the appeal and therefore the judgment which he will submit to the superior Court for review, including, as it must, that part which has varied the trial Court's decree, will not be a judgment of affirmance but will be a judgment, partly of affirmance and partly of modification.
If we apply that principle to the present case, the answer as to whether leave should or should not be granted, appears to me to be plain. The intending appellant's case before the trial Court was that there should be no partition at all and necessarily no accounting. The trial Court did not accept his case and made an order for accounts in a somewhat stringent form. The Appellate Court modified the rigour of the order for accounts, but it still maintained the order and the resultant position was that the intending appellant's case that there should not be any accounting at all was not yet fully conceded. He has therefore taken ground against even the modified order for accounting.
This, therefore, is not a case where, with regard to the point on which there was a modification of the trial Court's decree by the Appellate Court, the intending appellant's claim, so far as that point was concerned, has been entirely satisfied and therefore not a case where the judgment that will be challenged before the Supreme Court will not be, as regards any part of it a judgment of variation but wholly a judgment of affirmance.
Mr. Sen Gupta referred us to certain later decisions of this Court which, he said, had taken a broader view than in the earlier cases. It is not necessary to refer to the later cases, because, in my view, they arc not very helpful, inasmuch as they do not give any reasons. I consider it all the less necessary to do so, because even if I limit myself to the older cases, I find myself still able to hold that this is not a case where the judgment proposed to be appealed against can be said to be a judgment of affirmance, inasmuch as the portion which has varied the trial Court's decree is also going to be under appeal, the variation not being to the entire extent that the appellant claimed and claims.
10. I desire to add further that, in any event, the question is not free from difficulty. As I said a few moments ago, a desire to be liberal in the matter of granting leave appears to have involved the Court into statements of various principles and doctrines at various times which are not wholly reconcilable. But the resultant position is that whether a judgment like that in the present case is or is not a judgment of affirmance, is a matter at least of doubt and where there is doubt, I would resolve it by deciding in favour of the applicant and granting him leave.
11. For the reasons given above, this application is allowed. Leave to appeal to the Supreme Court under Article 133(1) of the Constitution of India is granted. Let the necessary certificate be drawn up.
12. The costs of the application will be costs in the appeal. We assess the hearing-fee at five gold mohurs.
13. I agree.