K SHUNMUGASUNDARA MUDALIAR Vs. SRATNAVELU MUDALIAR

JUDGEMENT

(1.) The petitioners brought a suit against the respondents asking for an account in respect of their trusteeship of the plaint temple. Although they asked for a general account in the plaint, eight specific charges of malversation were alleged and these charges formed the subject- matter of the trial in the first Court. Without taking a general account, the Subordinate Judge examined the evidence relating, to the eight charges and held that two charges were proved and that the other six failed. The judgment is not altogether satisfactory, for it is quite possible that, if a general account had been taken some sums of money might have been found to be due to the respondents which could have been set off against the two claims allowed. The respondents filed an appeal in respect of these two claims and the appeal was allowed in this Court. The petitioners filed a memorandum of cross-objections relating to the other six items and that was dismissed in toto. The ground for dismissing the claim of the petitioners in toto both in appeal and in the memorandum of objections was that the petitioners had no right to claim a general account as accounts had already been furnished and the petitioner's themselves had suppressed the accounts and thereby prevented any further account being taken. The petitioners now wish to appeal to the Privy Council in respect of the whole of the subject-matter of the original suit.

(2.) It is contended for the respondents that the decree of this Court which was drawn up in respect of both of the appeal and of the memorandum of objections is in effect an affirming decree and that no substantial question of law arises. So far as the appeal is concerned, the decree of this Court can in no circumstance be deemed to be an affirming decree for it disallowed a sum of Rs. 7,000 which had been allowed by the Trial Judge. The contention for the respondents is that the appeal and the memorandum of objections must be treated as separate appeals and that so far as the decree in respect of the memorandum of objections is concerned, no appeal would lie to the Privy Council as the judgment of the Lower Court was affirmed and that, so far as the decree in the appeal itself is concerned, the value of the subject-matter is less than Rs. 10,000 and therefore no appeal would lie. The petitioners contend that the memorandum of objections must be deemed to be so intimately connected with the appeal itself as to constitute one appeal and that therefore the total value of the subject-matter is over Rs. 10,000 and the decree of this Court is a reversing decree. I am not prepared to hold that in all cases the memorandum of objections must be deemed to be dependent upon the appeal itself. The alteration in law effected by Order 41, Rule 22 (4) clearly indicates that the memorandum of objections may in certain cases be treated as a separate cross-appeal. The decision in Alagappa Chettiar V/s. Chockalingam Chettiar (1918) I.L.R 41 M. 904 : 35 M.L.J. 236 (F.B.) does not affect the point, for that only dealt with the question of limitation. The further decision in Murugappa Chettiar V/s. Ponnuswami Pillai (1921) I.L.R. 44 M. 828 : 41 M.L.J. 304 which purported to follow Alagappa Chettiar V/s. Chockalingam Chettiar (1918) I.L.R 41 M. 904 : 35 M.L.J. 236 (F.B.) does not apply here; but, with all respect, it seems to me difficult to hold that the abatement of an appeal on the death of the appellant and its subsequent dismissal does not amount to a dismissal for default of prosecution within the meaning of Rule 22, Clause (4). What has to be considered in a question of this sort is whether the appeal and the memorandum of objections must be treated as forming two independent proceedings relating to distinct sets of facts, and it is now contended for the respondents that each of the eight charges of malversation formed a separate subject-matter and that inasmuch as this Court affirmed the decree of the Lower Court in respect of six charges, it must be deemed to be an affirming decree and that therefore in respect of these six charges no appeal would lie to the Privy Council. It is, however, difficult to say that all these eight charges are separate and distinct subject-matters, for they were all based on the alleged breach of trust by the respondents, and in fact the six charges were dismissed by the Trial Court not on the ground taken by this Court, namely, that the petitioners had no right to demand an account, but on the merits of the evidence which was held not to prove the charges. In these circumstances, the case in Ramanathan Chetti v. Subramanian Chetti decided by this Bench can be distinguished, for, there the memorandum of cross-objections related to a matter entirely distinct from the subject-matter of the appeal, nor do I think that the cases in Raja Sree Nath Roy Bahadur V/s. The Secretary of State for India in Council (1904) 8 C.W.N. 294 and Narendra Lal Das Choudhury V/s. Gopendra Lal Das Chowdhury (1927) 45 C.L.J. 426 apply. It is unnecessary to refer to the other cases cited, for, the question that has to be decided is, whether the decree of this Court in the appeal and memorandum of objections really consists of two separate decrees in respect of separate subject-matters, or whether it is really one decree dealing with one subject-matter only. In the former case, it may well be that in respect either of appeal or of the memorandum of objections, no appeal would lie to the Privy Council, whereas, in the latter case, if the subject- matter of the suit in the first Court and the value of the appeal to the Privy Council is over Rs. 10,000 an appeal would lie to the Privy Council. Here, so far as the value of the subject- matter of the suit and the appeal is concerned, the provisions of Section 110, Civil Procedure Code, are complied with and it is not possible to split the decree into two parts and hold that one part is an affirming decree and that the other part is a reversing decree, and that because the latter is below Rs. 10,000 in value, no appeal would lie. In these circumstances, I would hold that the petitioners have a right to appeal.

(3.) It is perhaps unfortunate that in this particular case, this litigation which is undoubtedly prejudicial to the interests of the suit temple should have been instigated by a factious feeling prevailing between two parties. This, however, cannot affect the right of appeal of the parties. The petitioners have been prejudiced by the judgment of this Court and therefor they must be allowed to appeal to the Privy Council.