Tirumalachetti Rajaram Vs.
Tirumalachetti Radhakrishnayyachetty [1961] INSC 194 (27 April 1961)
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1795 1962 SCR (2) 452
CITATOR INFO :
F 1974 SC1495 (7)
ACT:
Supreme Court, Appellate Jurisdiction
of-Appeal from decree affirming the decision of the court below-Decree of affordance,
Meaning of-Test-Constitution of India, Art. 13,3(1).
HEADNOTE:
The appellant brought a suit for the recovery
of his moiety share of the joint family properties against his father and
alienees from the latter and his case was that the alienations made by the
father were not binding on his share of the properties. The trial court dismissed
the suit but the High Court on appeal reversed the decision of the trial court
in respect of some of the properties, passed a preliminary decree for partition
of those properties and confirmed the rest of the decree of the trial court.
The appellant applied for a certificate under Art. 133(1) Of the Constitution
but the High Court rejected the same holding that the decree was one of
affirmance and involved no substantial 453 question of law, following a
decision of the Full Bench of that Court in Chittam Subba Rao v. Vela Mankanni
Chellamayya. The case admittedly satisfied the test of valuation prescribed by
Art. 133(1)(a).
Held, that in construing the relevant clause
of Art. 133(1) of the Constitution, which gives a constitutional right to the
litigant to appeal to this Court, it would be inappropriate to adopt a
technical or pendantic approach and the clause must be read as a whole and its
material words given their plain grammatical meaning.
So construed, the correct test to determine
whether an appellate decree affirmed the decision of the court below would be
to compare the appellate decree, taken in its entirety, with the decision of
the trial court taken as a whole. If on such comparison it was found to do so,
it was a decree of affirmance; but if it made a variation, whether for or
against the appellant, it would be a decree of variation, the extent of the
variation being wholly immaterial.
Chittam Subba Rao v. Vela Mankanni
Chelamayya, I.L.R. [1953] Mad. i, disapproved.
The words "appealed from" in the
last part of Art. 133(1) are not words of limitation, and they do not refer to
a part of the decree, that may be under appeal, but simply describe the decree
viewed as a whole. So also the word "decision" therein means the
decision of the trial court as a whole and not the decision on any point
falling for determination.
Rajah Tasadduq Rasul Khan v. Manik Chand,
(1902) L.R. 30 I.A. 35, referred to.
Dhirendra Nath Sarkar v. Nischintapore
Company, [1961] 36 I.C. 398, held inapplicable.
The test in respect of value laid down by
Art. 133(1)(a) is an independent condition that cannot control the meaning of
the word 'decree' in the last part of Art. 133(1), which provides for another
additional and independent condition.
Raja Sree Nath Roy Bahadur v. The Secretary
of State for India in Council, (1904) 8 C.W.N. 294, Annapurnabai v. Ruprao
(1924) L.R. 51 I.A. 319 and Narendra Lal Das Chaudhury v. Gopendya Lal Das
Chaudhury, A.I.R. 1927 Cal.
543, considered.
Case-law reviewed.
While any variation of the order as to costs,
which is in the discretion of the Court under S. 35 of the Code of Civil
Procedure, cannot change the character of the appellate decree which is
otherwise one of affirmance, variation of the order as to interest under S. 34
of the Code must affect its character. Any variation by concession or consent
of parties or withdrawal of part of the subject-matter of the decree cannot,
however, affect its character. 58 454
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 92 of 1961.
Appeal by special leave from the judgment and
decree dated January 9, 1958, of the Andhra Pradesh High Court in Appeal No.
211 of 1949.
K. R. Choudhry, for the appellant.
T. V. R. Tatachari, for respondents Nos. 2, 3
and 24 to 27.
R. Thiagarajan and P. Ram Reddy, for
respondents Nos. 4 to 7 and 17.
1961. April 27. The Judgment of the Court was
delivered by J. GAJENDRAGADKAR, J.-If the appellate decree passed by the High
Court makes a variation in the decision of the trial Court under appeal in
favour of a party who intends to prefer an appeal against the said appellate
decree, can the said decree be said to affirm the decision of the trial court
or not under Art. 133(1) of the Constitution? That is the short question Which
arises for our decision in the present appeal.
The appellant Tirumalachetti Rajaram filed a
suit in forma pauperis in the Court of the Subordinate Judge, Chittoor, for his
half share in the properties which once belonged to the joint family consisting
of himself and his father and to this suit he imp leaded his father and several
alienees from him. His case was that the alienations effected by his father as
well as the sales held in execution proceedings against his father were not
binding on him and so his share in the properties covered by the said
alienations was not affected by them. It is on this basis that he claimed his
half share in all the said properties. The trial court rejected his contention
that the alienations did not bind him, upheld all the alienations and so
dismissed his suit.
On appeal the High Court of Madras reversed
the trial court's decree in respect of alienations which covered items 2, 10
and 14 in Schedule A as well as item 5 in Schedule B.
It held that the alienations in respect of
these item,% did not bind the appellant's share and so a preliminary decree for
partition was passed in his favour in respect of the said 455 items. The rest
of the decree passed by the trial court was confirmed. The appellant then
applied to the High Court for a certificate under Art. 133(1) of the
Constitution. This application was rejected on the ground that the decree
sought to be appealed from was one of affirmance and there was no substantial
question of law raised by the proposed appeal. In coming to this conclusion the
High Court followed an earlier Full Bench decision in Chittam Subba Rao v. Vela
Mankanni Chilamayya (1). The appellant then applied for and obtained special
leave from this Court, and on his behalf it is urged that the view taken by the
Madras High Court in the case of Chittam Subba Rao (1) proceeds on a
misconstruction of the relevant clause in Art. 133(1). That is how the short
question which falls to be considered in the present appeal relates to the
construction of the said relevant clause in Art. 133(1). It is common ground
that the test of valuation prescribed by Art. 133(1)(a) is satisfied in this
case.
Article 133(1) which corresponds to s. 110 of
the Code of Civil Procedure reads thus:
"133(1). 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, where 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." (i)
I.L.R.[1953] Mad. i.
456 In the present case we are concerned with
the clause "where 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)". It is common ground that if the
appellate a decree of the High Court makes a variation in the decision of the
trial court against the intending appellant the appellate decree is not a
decree of affirmance but variation, and this position is not affected even if
the variation in question is to a very small extent and may be of very minor
significance. The decisions of the High Courts, however, show a sharp conflict
in regard to the question as to the character of the appellate decree where it
makes a variation in favour of the intending appellant. Broadly stated the
majority of the High Courts have taken the view that an appellate decree which
makes a variation in favour of the intending appellant is a decree of
affirmance and it is only the Punjab High Court and the majority decision of
the Patna High Court which have taken a contrary view. The decisions of
different High Courts bearing on this point show that the learned Judges did not
always try so much to construe the terms of the relevant constitutional
provision as to reconcile their earlier decisions which disclosed a different
approach and a tendency to reach different conclusions. Indeed, on occasions
some judgments have expressed the hope that the sharp conflict of judicial
opinion resulting from the difference in approach adopted in dealing with the
problem can be effectively resolved only when this Court considers the matter
and makes its authoritative pronouncement. Thus it would be clear that though
this important question lies within a narrow compass it is not free from
difficulty.
In dealing with this question we think the
best course to adopt would be to consider the problem of construction without
reference to the previous decisions on the point, and in construing the
relevant clause it is obviously necessary to bear in mind that the clause under
discussion deals with the constitutional right of the litigant to make an
appeal to this Court; and so it would be inappropriate to adopt a 457 technical
or pedantic approach in interpreting the material words used in the relevant
clause. Reading the clause as a whole and giving the material words their plain
grammatical meaning it seems prima facie to show that the test of affirmance
prescribed by the clause can best be satisfied if we take the appellate decree
in its entirety and enquire whether the said decree affirms the decision of the
trial court considered, in its entirety. It is a matter of comparing the
appellate decree with the decision of the trial court under appeal. If the
appellate decree affirms the decree of the trial court it is a decree of
affirmance;
if there is a variation made by the appellate
decree in the decision of the trial court the appellate decree is not a decree
of affirmance and this position would not be affected whether the variation is
made in favour of the intending appellant or against him and whether the
variation made is minor or major.
It is, however, urged that the words
"judgment, decree or final order appealed from" denote that part of
the judgment, decree or final order in appeal which is intended to be
challenged in the proposed appeal to this Court. In other words, the word
"decree" it is suggested, refers to the part of the decree under
appeal. On this construction a decree has to be split up into different parts
and the words "appealed from" have to be treated as words of
limitation.
The argument in a slightly different form has
also been pressed before us. It is suggested that in cases where different
causes of action and different claims and reliefs have been combined different
decrees are in fact passed though in form there may be one paper on which one
decree is drawn; and so it is argued that the decree appealed from must mean the
decree under appeal dealing with the subjectmatter or matter in dispute
proposed to be brought to this Court by the intending appellant. For one thing
this argument may not be available where there is only one cause of action, and
it is quite clear that the word "decree" must have one meaning
applicable to all cases. Besides, in our opinion, this construction on which
the argument is based is far too technical and artificial and cannot be 458
regarded as reasonable. Normally, in each suit there is one decree, and so it
would be inconsistent with the scheme of the Code to divide the decree into
several parts by reference to its relation to different claims or subjectmatters
or to treat one single decree as consisting in fact of several decrees. The
normal, natural and reasonable construction to place on the first part of the
relevant clause is to hold that it refers not merely to that part of the decree
which is sought to be challenged in the appeal but the entire decree from which
the appeal arises or the decree giving rise to the appeal. On this construction
the clause "appealed from" is not a clause of limitation. It is
merely a descriptive clause and it describes the decree as one from which the
appeal arises. If that be so, in determining the character of the decree it
would be necessary to take the decree as a whole and enquire whether it is a
decree of affirmance or not.
In support of the argument that there can be
more decrees than one in a suit which combines different causes of action and
different claims made against different defendants in respect of different
subject matters Mr. Tatachari, for the respondent, has relied on the decision
of the Calcutta High Court in Dhirendra Nath Sarkar v. Nischintapore Company
(1).
In that case the Court was dealing with a
decree which was made in favour of the plaintiffs for the recovery of arrears
of rent in respect of three tenancies held by three different tenants and the
question raised was one of limitation under Art. 182, cl. (5) of the Limitation
Act (IX of 1908). The court held that although the decree was passed in one
suit and was set out on one sheet of paper the position was precisely the same
as if the plaintiffs had brought three distinct suits against the defendants
and had obtained three different decrees. It appears that the decree-holder's
claim for execution was in time in respect of one of the tenants but not in
respect of the two others;
but he urged that since the decree was one it
was not open to the two other tenants to plead limitation by splitting up the
decree into three different decrees and by seeking to 459 invoke the provisions
of art. 182, cl. (5) severally as against each one of the said decrees. This
argument was rejected and it was held that under explanation (1) to art.
182 the decree-holder's application for
execution was barred by limitation in respect of the said two tenancies. It
would thus be clear that the discussion about the character of the decree and
the conclusion that though in form there was one decree in fact and law the
decrees were three are based on the provisions of explanation (1) and so must
be confined to the said explanation. Explanation (1) provides that where the
decree or order has been passed severally in favour of more persons than one
distinguishing portions of the subject-matter as payable or deliverable to
each, the application mentioned in cl. (5) of art. 182 shall take effect in
favour only of such of the said persons or their representatives as it may be
made by. But where the decree or order has been passed jointly in favour of
more persons than one, such application, if made by any one or more of them, or
by his or their representative, shall take effect in favour of them all. The
facts in the case of Dhirendra Nath Sarkar (1) were converse of the case
contemplated by the first part of explanation (1), and so the principle laid
down by the said part of explanation (1) was applied and it was held that in
respect of the two tenancies the decreeholder's application for execution was
barred by art. 182, cl. (5). It would be idle to contend that considerations
which are relevant and material under explanation (1) are of such a general
application as to support the plea that in a suit where different causes of
action are included and different reliefs are claimed against different
individuals several decrees are passed and not one. There are cases in which
more than one decree can be and are passed under the Code of Civil Procedure,
for instance cases where preliminary decrees are passed, but the normal rule is
one decree is passed in one suit and so we are not prepared to accede to the
argument that the first part of the relevant clause of Art. 133(1) should be
read on the basis that every decree passed in a suit should be held to be a (1)
[1916] 36 I.C. 398; 22 C.W.N. 192.
460 composite decree made up of several
decrees in respect of several claims or reliefs and that the decree appealed
from is only that particular decree which is proposed to be brought in appeal
to this Court.
The next question to consider is: what is the
denotation of the word "decision" used in the said clause. The
argument for the respondent is that the word "decision" does not mean
the whole of the decision but the decision on that part of the controversy
between the parties which is brought to this Court in appeal. In support of the
argument that the decision does not mean the entire decision of the trial court
reliance is placed on the provisions of O. 20, rr. 4 and 5. Rule 4 of O. 20
deals with the judgments of Small Cause Courts and judgments of other Courts,
and it provides that the judgments falling under the first clause need not
contain more than the points for determination and decision thereon, whereas
the judgments falling under the latter class should contain a concise statement
of the case, the points for determination, the decision thereon and the reasons
for such decision. There is no doubt that the decision in the context means the
decision on the points for determination. That of course is the meaning of the
word "decision", but whether or not the word "decision"
means the decision on one point or the decision of the whole suit comprising of
all the points in dispute between the parties must inevitably depend upon the
context, and the context is plainly inconsistent with the argument that the
decision should mean the decision on a specific point. If the word
"decree" in the first part of the relevant clause means not a part of
the decree but the whole of the decree then it would be reasonable to hold that
the word "decision" must likewise mean the entire decision of the
trial court and not a part of it.
Then it is urged that O. 41, r. 33 seems to
contemplate that there can be an appeal against a part only of the decree and
so the word "decree" in the first part of the relevant clause may
well mean a part of the decree under appeal. It is true that under the
interpretation clause in s. 2 the word "decree" means, 461 inter
alia, the formal expression of an adjudication, which conclusively determines
the rights of parties with regard to all or any of the matters in controversy
in suit, and it is also true that a party aggrieved by a decree may appeal only
against a part of it and is not bound to file an appeal against the whole of
the decree; but we do not see how this can assist the respondent in contending
that the word "decree" must,, mean a part of the decree when the
context clearly speaks to the contrary. Therefore, we are inclined to hold that
both "the decree" and "the decision" referred to in the
clause mean the decree and the decision respectively taken as a whole and not
in part.
The question as to the meaning of the word
"decision" in the corresponding provision of the Code of 1882 (s.
596) was considered by the Privy Council in Rajah Tasadduq Rasul Khan v. Manik
Chand (1). The question which arose for the decision of the Privy Council was
whether the appellate decree in that case was one of affirmance or not. Tile
appellate decree had confirmed the trial court's decision though on different
grounds, and so it was urged that the appellate decree was not one of
affirmance. In rejecting this argument the Privy Council stated that "the
natural, obvious and prima facie meaning of the word "decision" is
decision of the suit by the Court, and that meaning should be given to it in
the section" (s. 596). The Privy Council examined the definition of the
word "judgment" in the Code of 1882 and came to the conclusion that
the word "decision" meant the decision of the suit by the trial court
and not the grounds stated in support of the said decision; in the result it
was held that the appellate decree which confirmed the decision of the trial
court though on different grounds was in law a decree of affirmance. It would
thus be seen that this decision undoubtedly supports the conclusion that the
word "decision" in Art. 133(1) should mean not a part of the decision
or the grounds given for it but the decision of the suit as a whole; and if
that be so, the clause could be harmoniously construed to mean that in determining
the character of the appellate decree we have to look at the appellate decree
as (1) [1902] L.R. 30 I.A. 35.
162 a whole, compare it with the decision of
the trial court as a whole and decide whether the appellate decree is one of
affirmance or not. In this enquiry the nature of the variation made whether it
is in favour of the intending appellant or otherwise would not be relevant.
It is then argued that this construction is
inconsistent with the provision made by Art. 133(1)(a) in regard to the value
of the subject-matter of the dispute. There is no doubt that in applying the
test of the value of the subjectmatter of the dispute what we have to consider
is the dispute in the Court of First Instance and the dispute on appeal. In
other words, the value of the subject-matter has to be determined by reference
to the subject-matter which is actually the subject-matter of the proposed
appeal to this Court. The argument is that if for determining the value of the
subject-matter it is necessary to consider only that part of the decree and
subject-matter which are actually proposed to be brought to this Court in
appeal, in interpreting the word 'decree" in the relevant clause a similar
approach should be adopted and only that part of the decree should be considered
which is proposed to be brought to this Court in appeal. We do not see the
materiality of this consideration nor even its relevance. The test prescribed
by Art. 133(1)(a) is an independent additional test and its effect has to be
judged by interpreting the words used by the relevant clause. If the said
clause refers to the amount of the value of the subject-matter still in dispute
on appeal quite plainly we must take into account only the subject-matter in
dispute in appeal and nothing more. The words used in this connection are clear
and unambiguous but they cannot reasonably control the meaning of the word
"decree" in the relevant clause which provides for an additional and
an independent condition.
Therefore, in our opinion, the argument based
on the construction of Art. 133(1)(a) is not well founded.
The same comment falls to be made in regard
to the other argument based on the provision which requires the High Court
further to certify that the 463 appeal involves some substantial question of
law. It is urged that this requirement has to be satisfied by reference to that
portion of the decree which is proposed to be brought to this Court under
appeal and that would suggest that even the test of affirmance should be
applied by reference to the part of the decree under appeal and not by
reference to the whole of the appellate decree. Here again, the words used are
that the appeal involves some substantial question of law which must
necessarily mean the appeal as it is proposed to be brought and that must refer
only to the decree brought under appeal. Therefore, even this argument does not
afford material assistance in construing the relevant clause with which we are
concerned.
There is yet another argument which must be
examined, It is contended that the adoption of the literal construction of the
relevant clause relating to affirmance would lead to anamolous and unreasonable
consequences. It is pointed out that if the decision of the trial court is
wholly confirmed the intending appellant would not be entitled to come to this
Court as a matter of right unless there is a substantial question of law. On
the literal construction, however, he would be entitled to come to this Court
even if there is a very minor and slight modification in the decision of the
trial court and that too in his favour.
Prima facie it may no doubt seem somewhat
unreasonable that even a slight modification made in the decision should give
the intending appellant the right to come to this Court;
but, on the other hand, even this position cannot
be regarded as unreasonable because it would really be found to be consistent
with the principle underlying the doctrine of affirmance. What is the basic
idea underlying the relevant provision? If two courts which have judged the
dispute between the parties and applied their independent minds to it agree in
their conclusions the appellate decision is one of affirmance and unless there
is a substantial question of law no further right to appeal should lie. That is
the basis of the provision. When, however, a variation is made by the appellate
court it tends to 464 show that the two courts have not entirely agreed and so
it is not a case of affirmance. The extent of the difference does not matter so
much as the fact that there is a difference in the result, and go in
prescribing the doctrine of affirmance the Constitution makers may well have
intended that the said doctrine should be confined only to cases where there is
a complete affirmance and not to cases of partial affirmance. We do not think
that the consequence of the view we are inclined to take can be reasonably
characterised as opposed to common-sense. Besides, if on a fair and reasonable
construction the words used in the relevant clause lead to the conclusion which
we are inclined to draw it would be unreasonable to limit the scope of the said
words on hypothetical considerations of unreasonable consequences. As we have
already observed we are dealing with a constitutional right conferred on
litigants, and, unless the limitation contended for by the respondent can be
said to flow reasonably from the words used in the relevant clause, it would
not be open to us to adopt that limited construction merely on such
hypothetical considerations.
Then it is urged that the majority of the
High Courts in India have taken the same view which the Madras High Court has
taken in the present case and so we should be slow to interfere with the
majority decision. In support of this conclusion the principle of stare decisis
is pressed into service. We are not impressed by this argument. It is perfectly
true that in construing the clause we would carefully have to bear in mind the
views expressed by the majority of our High Courts, but as we have already
indicated there is a sharp conflict of opinion on this point and it can be
stated generally that in almost all the High.
Courts different views have been expressed at
one time or the other. Besides, it would be singularly inappropriate to invoke
the doctrine of stare decisis in a case of this kind where High Courts have
differed and the matter has been brought to this Court for resolving the said
difference of opinion. In such a case it is open to us, and indeed it is our
duty, to construe the relevant clause and decide which of the two 465
conflicting views should hereafter prevail. Therefore the argument based on the
practice prevailing in the majority of the High Courts in this country is not
of much assistance.
At this stage we may deal with another
argument urged by Mr. Rama Reddy who appeared for some of the respondents. He
contends that in construing the relevant clause we may have regard to the fact
that, the Constitution intended to restrict the right of the' appellant to come
to this Court and not to widen it. In support of this argument be relies on the
fact that the value of the subject-matter prescribed by Art. 133(1)(a) is now
made Rs. 20,000 whereas formerly it was Rs. 10,000, and he also relies on the
provisions of Art.
133(3) under which no appeal shall lie to the
Supreme Court from the judgment, decree or final order of one judge of a High
Court. In our opinion, there is no substance in this contention. It is well
known that in raising the amount of the value of the subject-matter Art. 133
(1) (a) has merely partially recognised the fall in the price of the rupee and
so it cannot be read as showing the intention to restrict the appellant's right
in any manner. In regard to the provisions of Art. 133(3) there is no material
change made by the Constitution since the position under s. III of the Code of
1908 as well as s. 597 of the Code of 1882 was substantially the same. We would
accordingly hold that in determining the question as to whether the appellate
decree passed by the High Court affirmed the decision of the trial court the
appellate decree must be considered as a whole in relation to the decision of
the trial court similarly considered as a whole. That is the proper approach in
applying the test of affirmance. If there is a variation made in the appellate
decree in the decision of the trial court it is not a decree of affirmance and
this is not affected either by the extent of the variation made or by the fact
that the variation is made in favour of the intending appellant and not against
him.
In this connection it would be interesting to
refer to three decisions which afford judicial background for 466 the
controversy that has been agitated in the several High Courts for so many years
past. In Raja Sree Nath Roy Bahadur v. The Secretary of State for India in
Council (1) a Full Bench of the Calcutta High Court had occasion to consider
the effect of the relevant provisions of s. 596 of the Code of 1882. In a land
acquisition case the applicant had claimed a sum of Rs. 77,000 odd as the value
of his land. The Collector had assessed the value at Rs. 28,287.
On a reference the judge upheld the
Collector's award. The applicant then moved the High Court by appeal and in his
appeal he valued his claim at Rs. 49,000. The High Court partially allowed the
appeal and granted him an additional sum of Rs. 7,000. The applicant then
applied for leave to appeal to the Privy Council and urged that the decree
passed by the High Court on appeal was not a decree of affirmance and since the
test of the value of the subject-matter was satisfied be was entitled to go to
the Privy Council. This application was rejected by the High Court. "The
appellant desires", observed Maclean, C. J., "to appeal only against
the decision of this Court so far as it affirmed the decision of the court
below, nothing else. This seems to be, in substance, as far as the subject of
the appeal goes, a decree of affirmance". The learned Chief Justice also
added that whilst the decree of the High Court modified in the petitioner's
favour the original decree, as regards the subject-matter of the proposed
appeal to His Majesty in Council it most certainly affirmed the decree of the
first court. This judgment was pronounced in 1904; and the construction which
it put on the relevant clause of s. 596 is in conformity with the views for
which the respondents contend in the present appeal.
The same point was raised before the Privy
Council in Annapurnabai v. Ruprao (2). In that case the plaintiff who claimed
to have been adopted by the senior widow of Shanker Rao sued the junior widow
of Shanker Rao (defendant 1) as well as the person who claimed to have been
adopted by her (defendant 2) for possession of half the property of Shanker
Rao.
(1) (1904) 8 C.W.N. 294.
(2) (1924) L.R. 51 I.A. 319.
467 Both the defendants denied the
plaintiff's adoption land set up the adoption of defendant 2. The trial court
held that the plaintiff's adoption had been proved and that the alleged
adoption of defendant 2 had not been proved. It, however, found that the
plaintiff was bound to provide maintenance for defendant I at the rate of Rs.
800 per annum. Defendant I had in that behalf claimed Rs., 3,000 per annum for(
her maintenance out of the estate. Upon appeal by the defendants to the Court
of the Judicial Commissioner the trial court's decree was modified by increasing
the maintenance from Rs. 800 to Rs. 1,200 per annum. In other respects the
decree was affirmed. The defendants then applied to the Court of the Judicial
Commissioner for leave to appeal to the Privy Council.
Their argument that they were entitled to appeal
to the Privy Council was rejected on the ground that the appellate decree was
one of affirmance, and that a small change made by it in favour of the
defendants did not affect that position. It was this decision which was
challenged before the Privy Council. Lord Dunedin, who delivered a very short
judgment on behalf of the Board, stated that in the opinion of their Lordships
the contention of the petitioners' counsel as to the effect of s. 110 of the
Code of Civil Procedure is correct, and the petitioners had a right of appeal.
In other words, this decision clearly shows
that though the trial court's decision had been varied to some extent in favour
of the intending appellants it was held that the appellate decree was not one
of affirmance and so the intending appellants were entitled to obtain leave to
appeal to the Privy Council. It does appear that the appellants in that case
confined their appeal only to the amount of maintenance having regard to the
concurrent findings made by the courts below in respect of other matters; and
so the special leave granted to them was limited to the question of the said
maintenance allowance. That, however, had nothing to do with the decision of
the Privy Council as to the character of the appellate decree. The appellants
did not want to agitate the other points and asked for permission to limit
their appeal only to 468 the question of their maintenance; that is about all.
Thus it is clear that the decision of the Privy Council in that case construed
the relevant provisions of s. 110 literally and held that if the appellate
decree makes any variation in the decision of the trial court-may be in favour
of the intending appellant-it is not a decree of affirmance and the intending
appellant was entitled to go to the Privy Council in appeal. It is true that
the judgment does not -purport to discuss the question of construction but the
conclusion has been emphatically recorded and there can be no doubt that
conclusion proceeds on the literal construction of s. 110 of the Code. This
judgment was pronounced in 1924.
Three years later the same question arose
before the Calcutta High Court in Narendra Lal Das Chaudhury v. Gopendra Lal
Das Chaudhury (1). In that case the intending appellant had brought a suit for
partition of the joint family property valued at Rs. 10,00,000. A preliminary
decree was passed against which an appeal was brought to the High Court. It
appeared that the first question which the plaintiff-appellant raised was that
the preliminary decree had given him a smaller share in the property than what
he was entitled to get. This contention was upheld by the High Court and in
consequence his share was increased. In that respect the High Court reversed
the finding of the trial Court. On other points raised by the plaintiff
appellant the High Court confirmed the judgment of the trial court.
It was against this appellate decision that
an application was made for leave to go to the Privy Council; and it was urged
that as a result of the decision of the Privy Council in Annapurnabai's case
(2) the appellant was entitled to obtain leave; and that squarely raised the
question about the effect of the decision in Annapurnabai's case (2).
Chief Justice Rankin took the view that the
only effect of the said decision was to reverse the conclusion of the Calcutta
High Court in Raja Sree Nath Roy's case (3) and nothing more. "It appears
to me", observed the learned Chief (1) A.I.R. 1927 Cal. 543. (2) (1924)
L.R. 51 I.A. 319.
(3) (1904) 8 C.W.N. 294.
469 Justice, "that the case of
Annapurnabai (1) 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 learned Judge then proceeded to
express his doubt as, to whether "in the end even that principle would be
found to be in accordance with the construction to be put upon s. 110",
but he added, "this Court and other High Courts have for many years acted
upon that principle and I am not prepared to accept the case of Annapurnabai
a,; going further than this that where there is a dispute as to the amount of
decree or as to the amount of damages the reasoning of Raja Sree Nath Roy's
case (2) is not a correct application of that principle". "We may
take it", said the learned Chief Justice, "that where the amount is a
question in dispute the fact that the courts differ and that the higher court
differs in favour of the applicant does not mean that the decision is one of
affirmance, but I am not, in a case of this kind, prepared to say that because
on a totally different point, namely, a point about the share, the applicant
has succeeded and succeeded altogether so that he has no further grievance in
that matter, he can without showing a substantial question of law have a right
to litigate upon other points upon which both the courts have been in
agreement". It is the interpretation thus put by Chief Justice Rankin on
the decision in the case of Annapurnabai (1) that subsequently became the
starting point of elaborate discussion in which legal subtlety was pressed into
service and distinction was made between action arising on a single cause of
action and giving rise to a single claim and actions in which different causes
of actions were combined against different persons and different reliefs were
claimed. As we have just indicated, the learned Chief Justice undoubtedly entertained
a doubt as to the correctness of the test of substance which was then applied
by some of the High (1) (1924) L.R. 51 I.A. 319(2) (1904) 8 C.W.N. 294.
60 417O Courts in interpreting the provisions
of s. 110 of the Code.
One feels tempted to observe with respect
that if the learned Chief Justice had examined the question of construction
afresh without reference to the prevailing practice or the decisions already
pronounced by Indian High Courts he might have adopted the literal construction
of s.
110 and in that event perhaps all
controversies that subsequently arose may have 'been avoided.
It now remains to indicate very briefly the
position taken by different High Courts in this controversy. In Chittam Subba
Rao v. Vela Mankanni Chelamayya (1) a Full Bench of the Madras High Court was
constituted to deal with this point because reported decisions of the said
Court showed a difference of approach and a conflict of opinion.
Rajamannar, C.J., who delivered the judgment
of the Full Bench, carefully examined the previous decisions of the Court and
evolved three principles to govern the decision of the point. These principles
have been stated in the judgment thus (i) 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.
(ii) 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.
(iii) 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.
(1) I.L.R. [1953] mad. 1.
471 Having evolved these principles the
learned Chief justice observed that every one of the decisions cited before the
Court can be justified by an application of the principles thus set up. It is
evident from the judgment that the task which the Full Bench attempted to
achieve was one of reconciling the different expressions of opinion found in
the reported decisions of the Court. In doing so more attention has naturally
been paid to the said decisions and the reasons on which they were based than
to the words used in Art. 133 itself. In regard to the said Article the learned
Chief Justice has observed that courts cannot add to the language actually
employed and thus give an unwarranted extension to the scope of the statutory
provision. "At the same time, I do not think", observed the learned
Chief Justice, "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".
Assuming that this principle can be legitimately invoked in construing a constitutional
right of making an appeal it must be borne in mind that hypothetical
considerations about unreasonable consequences would not justify the imposition
of a strained meaning on the relevant words used in the Article. If in
discussing the problem we first begin with the enquiry as to what would be
reasonable, and having reached a conclusion in that behalf on a priori
consideration if we seek to import that conclusion on the words used in Art.
133 that would not be a proper approach to adopt. The proper approach to adopt
would be to take the material words as they occur in Art.
133 and construe them fairly and reasonably.
We have already indicated our conclusion on a fair and reasonable construction
of the clause. The Madras decision no doubt attempted to find principles on
which its previous decisions could be explained and has in fact evolved three
such principles. Even if these principles are assumed to be logical and
consistent with each other and even if they are assumed to explain the earlier
decisions of the Court it does not follow that the said principles can 472 be
legitimately assimilated within the scope of the Article because it seems to us
that unless words are added in the Article and the meaning of the words used is
unduly strained it would be difficult to justify the said principles as flowing
from the said Article. This Madras view has been applied by the Andhra High
Court in V. Lakshminarayana Sastry v. V. Sitaramma Sastry (1). The majority
'judgment of the Allahabad High Court in Rani Fateh Kunwar v. Raja Durbijai
Singh(') which in fact preceded the Madras decision has adopted substantially
the same approach and has come to the same conclusion. Mr. Justice Bhargava,
who agreed with the majority decision, has, however, placed his conclusions on
grounds similar to those which we have adopted. To the same effect are the
decisions of the Assam, Bombay, Mysore and Nagpur High Courts (vide: G. C.
Bardoloi v. Collector of Kamrup (3), Kapurji Magniram v. Pannaji Debichand (4),
Govind Dhondu Kulkarni v. Vishnu Keshav Kulkarni(5) Kanakarathnammal v. V. S.
Loganatha Mudaliar(6) Ramchandra v. Ganpati (7). The Calcutta High Court has
generally adopted the view taken by v. Rankin, C. J., but as its decision in
Probodh Chandra Roy v. Hara Hari Roy (8), shows the practice in the Calcutta
High Court appears to be to treat the point as one of doubt and as Chief
Justice Chakravarti has observed "where there is a doubt I would resolve
it by deciding in favour of the applicant and granting him leave". On the
other hand, the Full Bench decision of the Punjab High Court in Union of India
v. Kanahaya Lal Sham Lal (9) and the majority decision of the Patna High Court
in Kanak Sunder v. Ram Lakhan have taken the view which we have adopted.
Before we part with this appeal we would like
to make it clear that if an appellate decree confirms the decision of the trial
court but merely makes a variation in regard to the order as to costs such a
variation (1) A.I.R. 1959 Andh. 20.
(2) I.L.R. [1952] 2 All. 605.
(3) A.I.R. 1952 Ass. 134.
(4) 31 B.L.R. 619, S.C.; A.I.R. 1929 Bom.
359.
(5) I.L.R. [1948] Bom. 881.
(6) A.I.R. 1959 MYS. 112.
(7) I.L.R. [1953] Nag. 784.
(8) A.I.R. 1954 Cal. 618.
(9) I.L.R. [1957] Punj. 255.
(10) I.L.R, [1956] 35 Pat. 499.
473 would not affect the character of the
decree which would in law amount to a decree of affordance, whether the
variation as to costs is made in favour of one party or the other.
The position with regard to interest,
however, is different;
for instance, in regard to a claim for
interest before the date of the decree which is a part of the dispute between
the parties if the appellate court makes a variation in respect of the award,
of interest that would affect the character of the appellate decree. Unlike the
order of costs which is entirely in the discretion of the Court under s. 35 of
the Code of Civil Procedure an order as to interest which the Court can make
under s. 34 of the Code forms part of a dispute between the parties, and in
that sense if a variation is made in regard to it is an integral part of the
decision or the decree. In this connection it may also be necessary to make it
clear that if the appeal court makes a variation in the decision of the trial
court either because a concession has been made in that behalf or the variation
has been obtained by parties by consent or a part of the subject matter covered
by the decree has been withdrawn such variation cannot affect the character of
the appellate decree. The principle of affirmance on which the provision rests
postulates either affirmance or variation by the appeal court as an act of
adjudication and that necessarily means the decision. of the appeal court on
the merits.
The result is the appeal must be allowed, the
order passed by the High Court by which the appellant's application for
certificate has been refused must be set aside and the matter sent back to the
High Court for disposal in accordance with law. Parties to bear their own hearing
costs but the respondent to pay the cost of court fees which the appellant
would have had to pay if he had not been allowed to appeal as a pauper.
Appeal allowed.
Back