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Case Number

Supreme Court Appeal No. 58 of 1954

Attorney(S)

M.B. Tawakley
J. Swarup

Judges

Hon'ble Mr. Chandra Bhan Agarwal
Hon'ble Sir O.H. Mootham

Acts

Section 110 of the CPC, read with Article 135 of the Constitution,
provisions of Article 133 or Article 134
provisions of Article 133;
Jurisdiction) Act, 1947,
Jurisdiction Act, 1949,

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Smart Summary

Structured Summary of the Opinion (Mootham, C.J.)

Factual and Procedural Background

This is an application for leave to appeal to the Supreme Court from a judgment and decree of the High Court dated 16-12-1953. The underlying suit was instituted on 7-7-1949. The substantive dispute concerns the respondent's claim to a one-fourth share in two plots of land in the town of Ferozabad. On remittal, the learned Additional Civil Judge of Agra found the value of that one-fourth share to be Rs. 10,425, a figure not in dispute before this Court. The appellant contended that the High Court's judgment involved, directly or indirectly, questions respecting the entire property, the value of which the appellant said exceeded Rs. 20,000. The application raises the principal procedural and constitutional question whether, in the circumstances (suit instituted before the Constitution but decrees rendered after 26-1-1950), the appellant had a right of appeal to the Supreme Court despite the value in dispute being less than Rs. 20,000.

Legal Issues Presented

Whether the High Court's judgment of 16-12-1953 "involves directly or indirectly some claim or question respecting" the entire property so as to permit certification under Article 133(1)(b), given that the disputed share's value is Rs. 10,425.
Whether, where proceedings were instituted before the commencement of the Constitution but judgments and decrees were delivered after 26-1-1950 and the value in dispute is less than Rs. 20,000, a party has a right of appeal to the Supreme Court notwithstanding Articles 133 and 135 of the Constitution.
How Article 135 should be interpreted: whether the word "matter" in Article 135 includes appeals in which the monetary thresholds of Article 133 are not met, and whether jurisdiction under Article 135 exists only where the Federal Court immediately before the commencement of the Constitution had jurisdiction "exercisable" in relation to that matter.

Arguments of the Parties

Appellant's Arguments

The appellant argued that the High Court's judgment involved questions respecting the entire property, the value of which exceeded Rs. 20,000, and therefore the certificate required by Article 133 could properly issue.
The appellant also relied on the fact that the suit was instituted on 7-7-1949 and contended that a right of appeal (derived from the law in force at the date of the plaint) survived such that an appeal to the Supreme Court should be available despite the later constitutional changes.

Respondent's Position (as reflected in the opinion)

The respondent claimed entitlement to a one-fourth share in the two plots; the value of that share was found to be Rs. 10,425 and was not disputed. The opinion records the respondent's substantive claim but does not set out detailed legal arguments advanced by the respondent in opposition to the application for leave.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bai Shevantibai v. Janardhan Raghunath, AIR 1944 PC 65	Held that a question as to a plaintiff's title to a share in joint property does not become a question respecting the whole joint family estate merely because establishing title would result in partition.	The Court relied on this decision to reject the appellant's contention that claiming one-fourth of two plots automatically involved a question respecting the whole property and thus warranted an Article 133 certificate on the basis of the property's full value.
Veeranna v. Venkanna, AIR 1953 Mad 878 (FB)	Distinction between (a) determining whether a statutory provision applies to a case and (b) determining whether, when that provision is applied, a party is entitled to relief.	The Court expressly agreed with Rajamannar, C.J.'s reasoning to support its interpretation of what the term "matter" in Article 135 refers to and how to approach applicability versus entitlement questions.
Nathoo Lal v. Durga Prasad, AIR 1934 SC 355	Illustration that provisions (here Article 133) may apply to appeals from judgments given after the commencement of the Constitution even when proceedings were instituted earlier.	The Court cited this decision to show the Supreme Court's prior treatment of Article 133's temporal application, distinguishing it from the broader construction the appellant urged for Article 135.
Prabirendra Mohan v. Berhampore Bank Ltd., AIR 1954 Cal 289	Held Article 135's operation is limited to cases where the right to appeal had concretely arisen immediately before commencement (e.g., an application for leave to the Federal Court had already been made or a decision had been given).	The Court relied on the Calcutta decision to support its view that Article 135 covers only matters which already existed in concrete form prior to the Constitution's commencement and that it does not revive rights of appeal which had not crystallized.
Canada Life Co. Ltd. v. Montreal East Corporation, (1922) 1 AC 249 (Privy Council)	Illustrative principle that a statutory change abolishing an existing right of appeal can extinguish that right, even where proceedings were instituted before the later statute, if the statute contains no saving for such appeals.	The Court used this decision as instructive authority supporting the conclusion that rights of appeal can be taken away by subsequent statutory or constitutional change where no saving or transfer of the right is provided.
Jagannath Prasad v. Hazari Lal, AIR 1953 All 509	Decision granting leave to appeal where the value of the subject matter exceeded Rs. 20,000 and the judgment was delivered before the commencement of the Constitution.	The Court noted this decision but distinguished it on its facts (value over Rs. 20,000; judgment pre-constitution) and thus did not treat it as controlling.
Dajisaheb v. Shankarrao Vithalrao, AIR 1952 Bom 303	Reported circumstances where an application treated as for leave to the Supreme Court from a High Court judgment dated 8-11-1949.	The opinion records the case and its procedural posture but does not adopt its reasoning; it notes the factual particulars and the different procedural context.
Narayan Prasad v. Raj Kishore, AIR 1953 Pat 275	Held that where the High Court's judgment was delivered after the Constitution and the value was less than Rs. 20,000 but above Rs. 10,000, leave could be granted under Section 110 CPC read with Article 135 because the Constitution had not taken away the appellant's right to appeal to the Federal Court.	The Court expressly disagreed with this decision and its reasoning, holding that such an approach improperly attempts to use subordinate adaptation instruments to alter constitutional provisions and that Article 135 must be given the narrower meaning adopted in this opinion.

Court's Reasoning and Analysis

The Court's analysis proceeds in a series of logical steps grounded in constitutional text, statutory history, and precedents expressly cited in the opinion:

Initial factual/legal threshold: The Court first disposed of the appellant's contention that the judgment "involves directly or indirectly some claim or question respecting" the whole property (which would permit certification under Article 133(1)(b)). Relying on Bai Shevantibai v. Janardhan Raghunath (Privy Council), the Court held that a title question limited to a share does not automatically become a question respecting the whole estate merely because a favorable finding might result in partition. Hence the appellant's contention that the whole property's value should be taken for Article 133 purposes was rejected.
Primary statutory framework: The Court then turned to the constitutional provisions that determine the right to appeal to the Supreme Court after the commencement of the Constitution — principally Articles 133 and 135. The Court emphasized that Article 133 sets the prima facie rule as to when appeals lie from High Court civil judgments (monetary thresholds and other criteria). Where the value is less than Rs. 20,000 and the conditions of Article 133(1)(b) or (c) are not satisfied, a High Court cannot grant the certificate that enables a direct appeal to the Supreme Court under that Article.
Interpretation of Article 135: Article 135 provides residual jurisdiction "until Parliament by law otherwise provides" in respect of matters to which Articles 133 or 134 do not apply, but only where such jurisdiction and powers were exercisable by the Federal Court immediately before the commencement of the Constitution. The Court analyzed what "matter" and "exercisable" mean. It adopted the view that "matter" refers to the appellate jurisdiction itself (i.e., the class of appeals) and does not encompass the enumerated conditions in Article 133 (the Court agreed with Veeranna v. Venkanna on distinguishing whether a provision applies and whether a person is entitled to relief).
Temporal and practical limits on Article 135: The Court concluded that Article 135 can only preserve jurisdiction in respect of matters which already existed in a concrete form before the Constitution came into force (for example, where an application for leave to the Federal Court was already pending or a relevant High Court decision had already been given). It adopted the reasoning in Prabirendra Mohan v. Berhampore Bank Ltd. that Article 135 is limited to such concrete pre-existing rights and cannot be read as a general conduit for appeals that were not otherwise within the Federal Court's concrete jurisdiction immediately prior to the Constitution.
Effect of statutory/institutional changes (historical narrative): The opinion reviews historical statutory changes: the Federal Court (Enlargement of Jurisdiction) Act, 1947 (which replaced Privy Council jurisdiction with Federal Court jurisdiction), and the Privy Council Jurisdiction Act, 1949 (which abolished Privy Council jurisdiction except for pending appeals and conferred that jurisdiction on the Federal Court). The Court viewed these Acts as retrospective in intent, replacing Privy Council appeals by Federal Court appeals for matters then or thereafter arising. The Constitution then abolished the Federal Court and created the Supreme Court, with Article 374(2) transferring suits, appeals and proceedings pending in the Federal Court at the commencement of the Constitution to the Supreme Court.
Crucial consequence of the transfer scheme: Because Article 374(2) transferred only matters that were pending in the Federal Court at the commencement of the Constitution, and because no provision was made for suits or proceedings not then pending in the Federal Court, the Court concluded that a litigant's post-commencement right of appeal (if it existed at all) had to be found in the Constitution itself (Articles 133 and 135). In other words, rights of appeal which had not concretely crystallized before the Constitution did not automatically survive by virtue of the transitional statutory instruments.
Reliance on analogous authority: The Court found the Privy Council decision in Canada Life Co. Ltd. v. Montreal East Corporation instructive on the proposition that a statutory abolition of an appeal route can extinguish the appeal right if there is no saving or provision transferring that right.
Rejection of contrary High Court decisions: The Court considered decisions (including Narayan Prasad v. Raj Kishore and Dajisaheb v. Shankarrao Vithalrao) which had allowed appeals in circumstances similar to those before the Court by invoking adaptation orders or Section 110 CPC read with Article 135. The Court rejected that approach, holding that adaptation orders cannot alter constitutional provisions and that Article 135 must be given the narrower construction earlier described.
Final evaluative conclusion: Applying the above reasoning to the present case, the Court concluded that the matter (an appeal from the High Court judgment dated 16-12-1953, where the value in dispute is Rs. 10,425) was not a matter in relation to which the Federal Court's jurisdiction and powers were "exercisable" immediately before the commencement of the Constitution. Consequently, Article 135 did not confer jurisdiction on the Supreme Court to entertain the appeal in these circumstances, and no certificate under Article 133 was available because the monetary threshold and other conditions were not met.

Holding and Implications

Holding:

Application dismissed. The Court held that the application for leave to appeal to the Supreme Court must be dismissed with costs.

Implications (direct effect and scope as stated in the opinion):

The immediate consequence for the parties is that the appellant is denied leave to appeal to the Supreme Court; the High Court's judgment and decree dated 16-12-1953 stand.
As a legal consequence drawn by the Court in this opinion, appeals to the Supreme Court from judgments and decrees of High Courts delivered after the commencement of the Constitution do not lie except under the terms of Article 133; Article 135 cannot be invoked to extend Supreme Court jurisdiction in respect of appeals unless the matter to which it relates existed in a concrete form and was within the Federal Court's exercisable jurisdiction immediately before the Constitution came into force.
The Court expressly rejected attempts to rely on adaptation orders or subordinate instruments to alter the constitutional qualifications for appeal.

Note: The summary above is based exclusively on the text of the provided opinion. Sections contain only those facts, arguments, authorities, and reasoning that appear in that opinion; no additional facts or external inferences have been introduced.

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Ram Sahai v. Ram Sewak

Mootham, C.J:— This is an application for leave to appeal to the Supreme Court from a judgment and decree of this Court dated 16-12-1953.

2. The dispute between the parties relates to a claim by the respondent that he is entitled to a one-fourth share in two plots of land in the town of Ferozabad. On an issue being remitted by this Court the value of that one-fourth share was found by the learned Additional Civil Judge of Agra to be Rs. 10,425/- and that figure is not now in dispute. The appellant contends however that the judgment and decree of this Court “involves directly or indirectly some claim or question respecting” the entire property the value of which is considerably in excess of Rs. 20,000. We do not think this contention is sound. In — ‘Bai Shevantibai v. Janardhan Raghunath’, AIR 1944 PC 65 (A), the Privy Council held that a question as to the title of the plaintiff to the share which he claimed in the joint property did not become a question respecting the whole of the joint family estate merely because if his title is established it would result in the joint family estate being partitioned. A fortiori a claim to a one-fourth share in certain property will not have that result if the establishment of the plaintiff's claim does not involve partition.

3. The suit out of which this application for leave to appeal arises was instituted on 7-7-1949, that is before the commencement of the Constitution, but the decrees of the trial Court and of the lower appellate court as well as the decree of this Court on second appeal were made after 26-1-1950, and the important question which arises is whether in these circumstances the appellant has a right of appeal to the Supreme Court notwithstanding the fact that the amount or value of the subject matter of the dispute, although above Rs. 10,000, is less than Rs. 20,000.

4. I will consider later the argument founded on the right which the applicant undoubtedly acquired on the date upon which the plaint was filed of appeal to the Privy Council; I think it convenient to consider first the relevant provisions of the Constitution. They are Articles 133 and 135 and the relevant portions read as follows:

“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

“135. Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction & powers with respect to any matter to which the provisions of Article 133 or Article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.”

5. The right of a party to appeal to the Supreme Court from a judgment of a High Court passed after the commencement of the Constitution is prima facie to be determined by Article 133 and where, as in the case now before us, the amount or the value of the subject-matter of the dispute is less than Rs. 20,000 and the requirements of sub-clauses (b) and (c) of clause (1) of that Article (as is admittedly the case) are not fulfilled, a High Court has no power to give the requisite certificate and leave to appeal cannot be granted under that Article.

6. Article 135 however confers on the Supreme Court jurisdiction in respect, inter alia, of any civil matter to which the provisions of Article 133 do not apply, provided that jurisdiction and powers in relation to that matter were exercisable by, the Federal Court on 25-1-1950. What then does the word “matter” refer to and what is the meaning of “exercisable”?

7. In my opinion the “matter” to which Article 133 applies is the appellate jurisdiction of the Supreme Court in appeals from High Courts in regard to civil matters, and does not include the requirements or conditions with regard to which the Court must be satisfied before it issues a certificate. I respectfully agree with Rajamannar, C.J, in — ‘Veeranna v. Venkanna’, AIR 1953 Mad 878 (FB) (B), that a distinction must be made between determining whether a particular provision of law applies to a case and determining whether, when that provision is applied, a party is entitled to relief.

8. The argument that the word ‘matter’ in Article 135 includes appeals in which the requirements of sub-clauses (a) and (b) of Article 133(1) are not fulfilled involves, I think, construing that Article as being limited in its application to appeals from judgments, decrees and final orders delivered or made in a civil proceeding instituted after the commencement of the Constitution; the Supreme Court has however held otherwise:— ‘Nathoo Lal v. Durga Prasad ’, AIR 1934 SC 355 (C).

9. In that case the Supreme Court held that the provisions of Article 133 applied to an appeal from a judgment of the Rajasthan High Court passed after the commencement of the Constitution in proceedings which had been instituted in the year 1945.

10. If however the view which I take as to the meaning of the word ‘matter’ be not correct it becomes necessary to ascertain what exactly constitutes the ‘matter’ over which it is said the Supreme Court has jurisdiction under Article 135; and it can, in the case before us, only be an appeal from a judgment and decree of a High Court in the territory of India dated 16-12-1953, in which the value of the subject matter in dispute is Rs. 10,425.

11. The question then is whether this matter is one in relation to which jurisdiction and powers were exercisable by the Federal Court immediately before the commencement of the Constitution under any existing law. In my opinion the answer must be in the negative. The word “exercisable” ??? is defined in Murray's Dictionary as meaning “??? of being exercised”, and I am unable to ??? appreciate how any jurisdiction or powers were ??? capable of being exercised by the Federal Court ??? in respect of an appeal from a judgment and decree ??? passed by a High Court after the Federal Court had ceased to exist.

12. I think it is important to observe that the ??? jurisdiction and powers of the Federal Court which have to be considered are the jurisdiction an powers in relation to the particular matter to which provision is not made in Article 133, and as ??? the Federal Court ceased to exist on the commencement of the Constitution, the “matter must in my opinion be one which itself existed before that date; as Chakravartti, C.J, said in — ‘Prabirendra Mohan v. Berhampore Bank Ltd.’, AIR 1954 Cal 289 (D) at p. 292, “the operation of the Article” (the reference in the report to Article 133 is clearly a mistake for Article 135)

“to my mind is limited to cases where the right to appeal in such proceedings was not a mere potentiality but had actually arisen in a concrete form immediately before the commencement of the Constitution, such as where an application for leave to appeal had already been made to the Federal Court or when, at least, the decision, of the High Court, sought to be appealed from, had been given”.

13. I now turn to the argument founded on the right of appeal which the applicant acquired on the date upon which the plaint was filed, that is to say, on 7-7-1949. The right which on that late vested in the applicant was a right to the benefit of the system of appeals provided by the law on that date, the right of appeal which at any time was capable of being exercised being dependent upon the stage the litigation had reached.

14. On 1-2-1948, the right of appeal to the ??? Council in civil cases was taken away by ??? Federal Court (Enlargement of Jurisdiction) Act, 1947, and in its place was substituted a right ??? appeal to the Federal Court, but it is not in ??? opinion necessary to consider further the effect ??? this Act as it was repealed by the Constitution, ??? the meantime however, on 10-10-1949, the ??? of Privy Council Jurisdiction Act, 1949, came into force.

15. Under S. 2 of that Act the jurisdiction of His Majesty in Council to entertain and dispose of appeals and petitions from or in relation to any judgment, decree or order of any court or tribunal, ??? than the Federal Court, within the territory of India was abolished, save as regards appeals and petitions then pending before the Privy Council; and a corresponding jurisdiction was conferred on ??? Federal Court.

16. There can I think be no doubt that the provisions of the Act manifest a clear intention that the ct is to be retrospective and is to apply to all appeals and petitions (other than those pending before the Privy Council) whether arising out of proceedings which had already been instituted or ??? may thereafter be instituted. The right appeal to the Privy Council was replaced by a ??? of appeal to the Federal Court.

17. The Federal Court was itself abolished the Constitution. At the same time the ??? Court was created and by Article 374(2) all ts, appeals and proceedings pending in the Feral Court at the commencement of the Constitution were removed to that new Court.

18. No provision was made with regard to suits, ??? and proceedings not then pending in the ??? Court, and the only conclusion which in ??? opinion can be drawn is that a litigant's right ??? appeal was thereafter to be found, if at all, in ??? Constitution itself, that is to say, in the case ??? appeals from a judgment, decree or final order ??? a High Court, in Articles 133 and 135.

19. On this point the case of — ‘Canada ??? Co. Ltd. v. Montreal East Corporation’, (1922) 1 AC 249 (E), is instructive. The ??? town obtained judgment from the Circuit ??? for the Recovery of a substantial sum of ??? from the appellants as municipal taxes ??? a provision in the Cities' and Towns' Act ??? Quebec, 1909. The question was whether an appeal lay from this judgment to the Court of King's Bench for the Province of Quebec. The Privy Council held that an appeal did not lie on two grounds.

20. In the first place, it was of opinion that the right of appeal which was given by the Code of Civil Procedure (by which the Circuit Court was created and which defined and limited its jurisdiction) did not extend to an appeal from a judgment under the Cities' and Towns' Act; secondly, it was of opinion that, assuming a right of appeal existed, that right ceased to exist after the coming into force of Quebec Statute, 10 Geo. V c. 79, which was passed after the proceedings in the Circuit Court had been instituted but before the appeal was brought.

21. Prior to the passing of that Act an appeal lay (if it lay at all) from a judgment of the Circuit Court to the Court of Review. The Act abolished appeals from the Circuit Court, and at the same time it transferred to the Court of King's Bench “unless otherwise provided by this Act” the jurisdiction which up till then had been exercised by the Court of Review.

22. No provision in other words was made for the transfer to the Court of King's Bench for appeals which would have lain to the Court of Review, and in these circumstances the Privy Council held that no right of appeal by the appellants survived.

23. Our attention has been invited to the case of — ‘Jagannath Prasad v. Hazari Lal’, AIR 1953 All 509 (F), a decision of this Court, and to certain decisions of other High Courts. Jagannath Prasad's case (F), is distinguishable from that now before us. In that case the value of the subject matter of the dispute was held to be over Rs. 20,000; and the judgment of this Court from which leave to appeal was sought was delivered before the commencement of the Constitution. Leave to appeal was granted.

24. Similarly in the case of — ‘Dajisaheb v. Shankarrao Vithalrao’, AIR 1952 Bom 303 (G), it appears from the report in the authorised series that the appeal was from a judgment of the High Court dated 8-11-1949, the Court treating the application made on 6-1-1950, by the appellant for leave to appeal to the Federal Court as one for leave to the Supreme Court.

25. In — ‘Narayan Prasad v. Raj Kishore’, AIR 1953 Pat 275 (H), the same question arose which we have to decide: the judgment of the High Court was delivered after the commencement of the Constitution and the value of the subject matter of the dispute was less than Rs. 20,000 but above Rs. 10,000. The Court granted leave to appeal under Section 110 of the CPC, read with Article 135 of the Constitution, holding that the Constitution had not taken away the appellant's right to appeal to the Federal Court, and that therefore an appeal now lay to the Supreme Court.

26. With great respect I am unable to agree with that view. Emphasis was laid in that case, and in Dajisaheb's case (G), on S. 27 of the Adaptation of Laws Order, 1950; but I think it clear that the terms of an Order made under the Constitution cannot alter the provisions of the Constitution itself.

27. A contrary view has been taken by the Calcutta and Madras High Courts in “Prabirendra Mohan v. Berhampore Bank Ltd., (D)’, and ‘Veeranna v. Veeranna (B) In each of these cases it was held that no appeal lies to the Supreme Court from a judgment and decree of a High Court passed after the commencement of the Constitution except under the provisions of Article 133; and with that view I respectfully agree. In my opinion this application fails and must be dismissed with costs.

Agarwala, J.:— I agree.

H.G.P

28. Application dismissed.

Ram Sahai v. Ram Sewak

Structured Summary of the Opinion (Mootham, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Position (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Sahai v. Ram Sewak

Comments