Dixit, J. -
(1.) THIS is an application under Article 133(1) of the Constitution for leave to appeal to the Supreme Court again and the judgment and decree in First Appeal No. 5 of 1953, which was heard and disposed of by us on 8 -12 -1954. The appeal arose out of a suit filed by the non -applicants Fatehchand and his son Jageshwar Prasad for partition and possession of certain immovable and movable properties under a claim of being the heirs of Chhaganlal, the last full owner who was the father of Fatehchand and the grandfather of Jageshwar Prasad.
The applicant Girdharilal is also a son of Chhaganlal and a brother of Fatenchand. The other applicants are the sons of Girdharilal. The case the Plaintiffs was that the property in suit was the self -acquired property of Chhaganlal; that at the time of Chhaganlal's death, they and the applicahts were joint with him and that, therefore, onr his death they were entitled to a half -share in the properties left by Chhaganlal.
The Defendant -applicants contested the suit inter alia on the ground that Fatenchand separated' from his father in 1918; that Fatehcnand's admitted second marriage in 1931 under the Special Marriage Act, 1872 had the effect of his sever ance from the undivided family; that under the Hindu Law a separated son is not entitled to succeed to the self -acquired property of the father; that therefore, Fatenchand could not claim any share in the self -acquired property of Chhaganlal; and that his son Jageshwar Prasad also could not get any share in that property because with the severance of Fatehchand's status as a member of the undivided family, he i.e., Jageshwar Prasad also ceased to be a member of the joint family.
The learned District Judge passed a preliminary decree declaring that both Fatenchand and Jageshwar Prasad had a half -share in the properties left by Chhaganlal and that a house situated on Jail Road, Indore and certain cash and ornaments mentioned by the Plaintiffs in the schedule to the plaint were liable to partition.
In appeal we agreed with the finding of the learned District Judge that Fatehchand did not separate from his father in 1918; that his second marrlage under the Special Marriage Act had the effecf of his severance from the undivided family.
We, however, held that from the decision of the Supreme Court in -'Arunachala Mudaliar v. Muruganatha Mudaliar' : AIR 1953 SC 495 (A and B), that the son has a right by birth in the father's self -acquired property, it followed as a necessary consequence that the property was unobstructed heritage devolving by survivorship and that if the self -acquired property has not been disposed of by the father during his life -time and if the father was Joint with some of his sons and grandsons and separated from Ors. , then on his death the undivided sons and grandsons would take the property to the exclusion of the separated sons or grandsons and that on this view the Plaintiff Fatehchand having separated from his father in 1931, could not claim any share in the self -acquired property of Chhaganlal.
We rejected the contention advanced on behalf of the applicants, who were the Appellant s in the appeal that with the severance of Fatehchand's status as a member of the undivided family, Jageshwar Prasad also ceased to be a member of the Joint family and cduld not, therefore, claim any share in the self -acquired property of Chhaganlal.
We accordingly rejected Fatehchand's claim fend in place of the preliminary decree of the lower Court , passed a decree declaring that Jageshwar Prasad was entitled to a half share "in the house situated on Jail Road Indore and in the Bank balances, ornaments belonging to Chhaganlal in the hands of the Defendants and in the business done by the Defendants with moneys belonging to Chhaganlal and directing the lower Court to appoint a Commissioner for determining the extent and value of the Bank balances, ornaments and other assets of Chhaganlal and for the division of the property into two equal shares".
We also directed that Fatehchand should Pay to the applicants one set of costs in this Court and in the Court below and Jageshwar Prasad should bear his own costs upto the preliminary decree ana that costs subsequent to the preliminary decreeshall be borne equally by Jageshwar Prasad and the Defendant Girdharilal.
The Defendants now seek leave to appeal to the Supreme Court and their main contention in the Proposed appeal is that Jageshwar Prasad is not entitled to any share in the property left by Chhaganlal.
(2.) IT is common ground that the value of the subject -matter of the suit in the Court of the first instance as well as the value of the subject in dispute on appeal to the Supreme Court exceeds Rs. 20,000/ -.
Mr. Pandey learned Counsel for the applicants first contended that the judgment of this Court did not affirm the decision of the trial Court inasmuch as Fatehchand's claim was rejected by this Court and the decree of the trial Court was varied accordingly; that, therefore, even if the modification in the decree of the trial Court was in favour of the applicants, yet they were entitled, as of right, for leave to appeal to the Supreme Court) although no substantial question of law was involved.
learned Counsel placed reliance on -Fateh Kunwar v. Durbljai Singh' : AIR 1952 All 942 (FB) (C) and C. Subba Rao v. Chelam'ayya' : AIR 1952 Mad 771 (FB) (D).
On the other hand Mr. Chitale learned Counsel for the non -applicant argued that in determining the question whether the decree passed by this Court was a decree of affirmance regard must be paid to the subject -matter of the proposed appeal to the Supreme Court; that the intended appeal was with regard to Jageshwar Prasad's claim for a share in the property and that so far as this claim was concerned, the decree of the trial Court was affirmed by this Court ; that when this Court rejected Fatehchand's claim and modified accordingly the decree of the lower Court , the variation was one in the applicant's favour that Fatehchand's claim was not the subject -matter of the appeal proposed to be taken to the Supreme Court and that the applicants could not because of this modification have a right of appeal in regard to ilageshwar Prasad's claim on which the Courts have concurred, without showing that there was a substantial question of law involved. Mr. Chitale further said that the decisions relied upon bythelearned Counsel for the applicants far from supporting bis contention only show that the Petitioners cannot in this case claim leave to appeal -as of right without showing that the appeal involves a substantial question of law.
On the contentions advanced by the learned'Counsel, the precise question that arises tor consideration is whether, where the lower Court's decree consists of several subject -matters and where the decision of the lower Court is partly maintained and partly reversed by this Court, the variation on a subject -matter decided in appeilant's favour, can give him a right of appeal on other subject -matters decided against him on which the Court s have concurred, without showing a substantial question of law.
The question is not free from difficulty. It has been considered in many cases and conflicting views have been expressed on it. But the weight of authority is in favour of the view that where the decision of the lower Court is partly maintained and partly reversed by the High Court the decree is deemed to be one of affirmance when the subject -matter of the appeal to the Supreme Court or Privy Council is confined to that part of the decree which affirms the decision of the lower Court.
The cases Brahma Nand v. Shree Sanatan Dharam Sabha, AIR 1944 Lah 329 (PB) (E); 'Wahid -ud -Din v. Makhanlal', AIR 1944 Lah 458 (PB) (P); 'Govind Dhondo v. Vishnu Keshav' AIR 1949 Bom 164 (G); 'Abdul Rahman v. Raghbir Singh', AIR 1951 P&H 313 (H); 'Bibhooti Bhooshan Datta v. Sreepati Datta' : AIR 1935 Cal 146 (I); 'Velayya v. President of theBoard of Commissioner of Hindu Religious Endowments, Madras' : AIR 1938 Mad 631 (J); 'Venkitasami Chettiar v. Sakkutti Filial', AIR 1936 Mad 881 (K): 'Abdul Majid Khan v. Datto Raoji', AIR 1946 Nag 307 (L); 'Ramchandra v. Ganpati', AIR 1953 Nag 249 (M); 'G.C. Bardolot v. Collector of Kamrup', AIR 1952 Gau 134 (N) all hold that where the proposed appeal to the -Privy Council or to the Supreme Court is confined only to the portion in respect of which the High Court has affirmed the decision of the trial Court , then no permission to appeal can be granted unless a substantial question of law is involved.
I do not propose to examine all these cases. These cases and Ors. have been considered in, ATR 1952 Mad 771 (PB) (D) and : AIR 1952 All 942 (PB) (C) where dissenting from 'Brajasunder Deb v. Rajendra Narayan' : AIR 1941 Pat 269 (SB) (O) and overruling 'Mt. Jamna Kunwar v. Lai Bahadur : AIR 1946 All 262 (P), the same view has been take.
The question turns on the meaning of the expression "where the judgment, decree, or final, order appealed from affirms the decision oft the Court immediately below" which occurs in Article 133(1)(c) and in the last para, of Section 110, Code of Civil Procedure.
If the words "judgment, decree or final order appealed from" are taken as meaning the judgment, decree or final order in its entirety and the expression "decision of the Court immediately below is taken as meaning the whole decision of the suit by the Court , then no doubt any variation in a decree would be enough to take it out of the condition of the existence of substantial questionof law.
If on the other hand the expression "judgment, decree or final order appealed from" is held, to mean only that part of the judgment, decree or final order of the High Court against which the appeal is intended to be taken and the expression decision of the Court immediately below" is interpreted to mean not the decision taken as a whole but the decision on matters in dispute in the proposed appeal, then clearly the question of variance of affirmance must be determined by reference to that Part of the decision of the Court below and of the judgment, decree or final order of the High Court which is the subject -matter of the proposed appeal.
I am disposed to hold that the latter interpretation is the correct one. It will be seen that both under Article 133(1)(c) and the first para, of Section 110, Code of Civil Procedure one of the necessary conditions is that the amount or value of the subject -matter in dispute on appeal must not be less than Rs. 20,000/ - and under Clouse (c) of Article 133(1) and the last para, of Section 110, Code of Civil Procedure the proposed appeal must involve some substantial question of law.
If then the valuation and the existence of a substantial question of law is thus with reference to the subject -matter of the proposed appeal, it Is reasonable to hold that in determining the question whether the judgment, decree or final order is or is not one of affirmance, it is only the subject -matter of the proposed appeal that should be taken into account.
This conclusion is reinforced by the use of the words "appealed from" which follow the words "judgment, decree or final order". It will be noted that the words "appealed from" occur only in Clause (c) of Article 133(1) and in the last para of Section 110, Code of Civil Procedure They are not to be found in other parts of Section 110, Code of Civil Procedure and Article 133.
The use of the said words in Clause (c) of Article 133(1) and in the last para of Section 110, Code of Civil Procedure is not without any significance. They are not merely decorative words. They have not been used to distinguish "judgment, decree or final order" taken as a whole which is under appeal from one which is not.
To my mind the words "appealed from" qualify and limit the scope of the meaning of the expression judgment, decree or final order". In conjunction with the words "judgment, decree or final order" they connote not the judgment, decree or final order of the High Court in its entirety but that part which is intended to be challenged in the appeal to the Supreme Court .
On this interpretation of the expression "judgment, decree or final order appealed from affirms the decision of the Court immediately below" the principle that emerges is that where the decision is partly maintained and partly reversed, the decree is deemed to be one of affirmance, when the subject -matter of the appeal to the Supreme Court is confined to that part of the decree which affirms the decision of the lower Court .
There is a good reason for this principle. It is that if a party's claim with regard to one of the matters involved in a suit is accepted partly or rejected totally by the trial Court and if the claim is allowed in toto by the High Court in appeal, then on that matter there will necessarily be no appeal to the Supreme Court and, therefore, the appeal would be confined to that part of the judgment, decree or final order which concerns with the other matters in suit on which the party has partly or totally tailed, in the High Court and the Court below.
It would, therefore, be illogical to give to the party the benefit of the variation in his favour on a matter on which he has succeeded fully and has no grievance left, for claiming an appeal as of right on matters on which both the Court s have held against him. In my judgment we must look into the subject -matter of the proposed appeal for determining whether the judgment covering the field of appeal is a judgment of affirmance.
If the appellate decree modifies the original decree on one of the matters in the suit and the Appellant succeeds wholly on that matter, then there is no right of appeal on other matters in the suit on which the Court s concurred, unless the Appellant shows that the appeal involves a substantial question of law.
(3.) THE view I have taken is substantially the panieias expressed by the Full Bench in : AIR 1952 All 942 (c). In that case on a review of several authorities and on a consideration of the provisions of Article 133 and section 110, Code of Civil Procedure, the learned Judges arrived at the following conclusions:
Where there are several matters of controversy in a suit and the High Court varies the decision of the trial Court with regard to one or more of such matters and affirms it in respect of other matters, then.
(a) If the proposed appeal to the Supreme Court is in respect of the matter upon which ithereis a variation, whether the variation is in favour of the Appellant or against ham, he has a right of appeal; provided, of course, that the valuation of the subject -matter of the proposed appeal is Hot less than Rs. 20,000/ -.
(b) If the proposed appeal consists of matters; about some of which there is affirmance and about the rest there is variation, again there is a right ol appeal, provided, of course, that the valuation! of the entire subject -matter of the proposed appeal is not less than Rs. 20.000/ -.
(c) If the uroposed appeal is in respect of only that matter upon which the High Court has affirm -ed ithe decreV pf the trial Court there is no right of appeal unless there is a substantial question of jaw involved.
The other decision, namely : AIR 1952 Mad 771 (FB) (D) relied upon by the learned Counsel for the parties in which several decisions of the Madras, High Court were reviewed by the Pull Bench also holds that:
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 no; and although inpi 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.
Here, I must refer to the decision of the Privy Council in 'Annapurnabai v. Ruprao' : AIR 1925 PC 60 (Q) which is often referred to as an authority for the view that the rule which was first laid down in 'Raja Sree Nath Roy v. Secretary of State', 8 Cal WN 294 (R), namely, that for determining the.'.question whether a decree is a decree of affirmance one must consider only the subject -matter, of the proposed appeal and inquire into Whether,the decision with regard to that Part of the case which was proposed to be taken on further appeal was concurrent, no longer holds good.
In 'Annapurnabai's case (Q)' the Plaintiff Ruprao alleging that he had been adopted by one Arohubai a senior widow of Shankar Rao sued the Junior Widow Annapurnabai and one Kashmatn, who also alleged to be an adopted son of Shankar Rao,s through Annapurnabai, for possession of Bhankar Rao's property. Annapurnabai denied the adoption of the Plaintiff and further claimed maintenance at the rate of Rs. 3.000/ - per year in case the" adoption of Kashinath was not proved.
The trial Court held that the Plaintiff's adoption was proved but decreed to Annapurnabai Rs. 800/ - per year as maintenance. The Judicial Commissioner's Court at Nagpur varied the decree of the trial Court by increasing the amount of maintenance from Rs. 800/ - to Rs. 1200/ - and affirmed the decree,in other respects. Annapurnabai then applied to the Judicial Commissioner's Court for leave to appeal to the Privy Council, which was refused. She then applied to the Privy Council for special leave to appeal.
On her behalf it was argued before the Privy Council that the appellate Court in enhancing the maintenance allowance did not affirm the decree of the first Court but in fact varied it and, therefore, the question whether the appeal involved at substantial question of law did not arise. This contention was accepted by the Privy Council in a brief judgment which runs as follows:
In the opinion of their Lordships the contention of the Petitioners' Counsel as to the effect of Section 110, Code of Civil Procedure is correct and the Petitioners had a right of appeal. They should have special leave to appeal but it should be limited to the question as to the maintenance allowance.
This judgment of the Privy Council has been differently interpreted by various High Courts. In : AIR 1946 All 262 (P); 'Annapurnabai's case (Q), was regarded as an authority for the proposition that where the appellate decree modifies the original decree upon a single point in Appellant's favour, the Appellant has, because of that modification, a right of appeal on other points on which the Court s have concurred, without showing that there is a substantial question of law involved.
In'Kaptirji Mangiram v. Pannaji Debichand' : AIR 1929 Bom 359(S); 'Annapurnabai's case (Q)', was distinguished as one in which the subject -matter of the appeal to the Privy Council included the matter about which there was variance and that it was not a case in which the matter on which there was variance was not the subject -matter of the appeal.
Rankin, C.J. in 'Narendra Lai Das v. Gopendra Lai Das' : AIR 1927 Cal 543 (T), limited the application of 'Annapurnabai's case (Q) to cases of claims for money or claims for damages. In explaining 'Annapurnabai's case (Q)', the learned Chief Justice drew a distinction between the cases where the proposed appeal embraced the subject -matter upon which there was aflirmance as also the subject -matter upon which there was variance, whether in favour of or against the Appellant and cases where the proposed appeal was confined to the subject -matter upon which the Court s had concurred. Sir George Rankin observed as follows:
We may take it, I think, that where the amount is a question in dispute, the fact that the Court 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 lias succeeded and succeeded altogether so that he has no further grievances in that matter, he can without showing a substantial question of law have a right to litigate upon other points upon which both the Court s have been in agreement.;