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Mangina Venkataswaami And Another v. Nuli Manikyam And Others.
Structured Summary of the Provided Opinion
Factual and Procedural Background
This is an application under Article 133 of the Constitution of India for leave to appeal to the Supreme Court against the decree and judgment of this Court dated 25-1-1950 in Appeal No. 377 of 1948.
The trustee of Sri Chenna Kesavaswami Temple instituted O.S. No. 73 of 1946 before the Subordinate Judge of "Ellpre" against several defendants for recovery of possession of certain properties and for mesne profits. The plaint schedule contained various items; prior to trial the plaintiff compromised with some defendants and the suit proceeded on the merits only against defendants 1 to 6 and 17 to 28. The contested claims related to items 1 and 7 of the plaint schedule.
The plaintiff's case was that the lands belonged to the deity and that mortgages effected by the archakas were invalid; therefore the plaintiff sought recovery of possession and mesne profits. Defendant 5, son of the mortgagee under Ex. B.1 (one of the impugned mortgages), pleaded that he had acquired the mortgagee's right by prescription.
The Subordinate Judge decreed the suit in respect of both items. On appeal this Court confirmed the decree in regard to item 7 but held in respect of item 1 that defendant 5 had acquired the mortgagee's right by prescription and directed the lower court to give a decree for redemption after determining sums due to the mortgagee under Ex. B.1.
The practical effect of the High Court's judgment as to item 1 was that the plaintiff obtained a decree for redemption; his title to item 1 was not negatived and he was held entitled to recover possession after discharging the mortgage. The plaintiff filed the present petition for leave to appeal to the Supreme Court.
Legal Issues Presented
- Whether the petitioner is entitled to leave to appeal to the Supreme Court under Article 133(1)(a) — i.e., whether the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal meets the monetary threshold (as applied by this Court to pre-Constitution judgments).
- Whether the petitioner is entitled to leave under Article 133(1)(b) — i.e., whether the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the requisite amount or value.
- Whether the petitioner should be granted a certificate under Article 133(1)(c) on the ground that the appeal involves a question of public importance (specifically, whether an idol is a "person" and therefore may come within the definition of "agriculturist" in Section 3 of Madras Act IV of 1938).
Arguments of the Parties
Petitioner's Arguments
- The petitioner argued entitlement to leave under Article 133(1)(a), relying on this Court's holding in C.M.P. No. 6638 of 1950 that for judgments delivered prior to the date when the Constitution came into force the monetary threshold for Article 133 is Rs. 10,000 (i.e., that the subject-matter value must be not less than Rs. 10,000).
- The petitioner contended that, even if the subject matter of the appeal was confined to the mortgage amount, the decree involved directly or indirectly a question respecting property of like amount or value under Article 133(1)(b) because, if the mortgage amount were not paid, possession and potential sale of the mortgaged property (of higher value) would be at stake.
- The petitioner sought a certificate under Article 133(1)(c) on the ground that the appeal raised a question of public importance: whether an idol is a "person" and thus might be considered an "agriculturist" within Section 3 of Madras Act IV of 1938.
Respondents' Arguments
The opinion does not contain a detailed account of the respondents' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdi Hussain Khan v. Ahmad Hussain, 45 MLJ 253; AIR 1923 PC 102 | Principle that in suits to recover an annuity or mortgage money the value of the subject-matter is the annuity or mortgage money sought, not the value of the property charged. | The Court relied on this principle to hold that in a suit for redemption the subject-matter is the mortgage money (the loan) and not the value of the mortgaged property; therefore the value in dispute on appeal is the mortgage amount, which is below the Rs. 10,000 threshold. |
| Subramania Iyer v. Sellammal, 39 Mad 843; AIR 1916 Mad 985 | Construction of para 2 of Section 110, C.P.C. — the words "involved, directly or indirectly" should not be read so as to include cases which involve nothing but the actual subject-matter in dispute on appeal. | The Court cited this decision in assessing the scope of Article 133(1)(b) (analogous to Section 110(2) C.P.C.) and to support a restrictive reading of "involves directly or indirectly" that does not convert every money decree into a question respecting property of higher value. |
| Nadir Hussain v. Municipal Board, Agra, ILR 1937 All 405; AIR 1937 All 169 | Illustrative decision where a court granted leave under the analogous provision on the reasoning that mortgaged property of higher value could be sold in execution and thus the appeal indirectly involved property of higher value. | The Court described this case as representing the broader view (that an appeal can involve indirectly higher-valued property because of execution consequences) but ultimately did not accept that reasoning as a correct interpretation of the provision analogous to Article 133(1)(b). |
| Ishwari Prasad v. Kameshwar Singh, AIR 1941 Pat 288 | Another decision applying para 2 of Section 110, C.P.C., where a suit was valued at a lower figure but the property liable to sale was of much higher value, and leave was granted on that basis. | The Court cited this decision as further authority for the broader approach but rejected that approach for the reasons set out in its analysis (to avoid making para 1 nugatory and to maintain a coherent meaning of 'property'). |
| Appalaraja v. Rangappa, 6 MLW 12; AIR 1918 Mad 632 | Interpretation that "property" in para 2 of Section 110 means rights in property inferior to full ownership where such inferior rights alone are the subject matter in dispute; thus para 2 requires that the rights/claims to property themselves be worth the threshold amount. | The Court relied on this construction to hold that in mortgage disputes the relevant "claim" is the right to redeem or recover the mortgage amount, not a question affecting the full-value property; therefore Article 133(1)(b) is not attracted. |
| Satibaladasi v. Chotangapur Banking Association Ltd., ILR 1948 (27) Pat 237; AIR 1949 Pat 448 | Held that in a mortgage suit the security is not the "property" in dispute; the only property in dispute is the loan advanced, and the possibility of sale of the security does not raise a question affecting the security for the purpose of leave. | The Court expressly agreed with this observation and cited it in support of its conclusion that Article 133(1)(b) does not apply to the present appeal. |
| This Court, C.M.P. No. 6638 of 1950 (decision of this Court referenced in the opinion) | Holding (as applied by this Court) that for judgments delivered prior to the coming into force of the Constitution the appropriate monetary threshold for Article 133 was Rs. 10,000. | The Court applied this internal precedent to determine that the Rs. 10,000 figure governs the monetary threshold under Article 133(1)(a) for the present case (a judgment delivered before the Constitution came into force) and thus compared the mortgage amount to that threshold. |
Court's Reasoning and Analysis
The Court proceeded through the three alternative grounds in Article 133(1) sequentially and applied statutory construction, earlier decisions and logical analysis to each:
- Article 133(1)(a): The Court applied its earlier holding in C.M.P. No. 6638 of 1950 that for judgments rendered prior to the Constitution's commencement the monetary threshold is Rs. 10,000. It examined what the "subject matter" of the appeal was in this case and concluded that, because of this Court's judgment on appeal, the dispute remaining on appeal was confined to the mortgage interest claimed by defendant 5. Relying on the principle from Abdi Hussain Khan v. Ahmad Hussain, the Court held that in a suit for redemption the relevant subject-matter value is the mortgage money (the loan) and not the value of the mortgaged property. The mortgage amount here was admittedly below Rs. 10,000. Therefore Article 133(1)(a) could not support leave.
- Article 133(1)(b): The petitioner argued that the judgment involved directly or indirectly a question respecting property of higher value because, if the mortgage amount were not paid or if execution followed, the mortgaged property (of greater value) might be sold. The Court considered decisions adopting that broader view (including Nadir Hussain and Ishwari Prasad) but rejected that interpretation. The Court reasoned that the provisions analogous to Article 133(1) must be read harmoniously: if para 2 (the "involves directly or indirectly" provision) were read to include merely the possibility of sale in execution, para 1 would be rendered nugatory. Citing Appalaraja v. Rangappa, the Court accepted a narrower meaning of "property" in such provisions — namely rights in property (inferior interests) which themselves must be of the requisite value. The Court also cited and agreed with Satibaladasi to the effect that in a mortgage suit the only property truly in dispute is the loan advanced and that the potential sale of security in execution does not raise a question affecting the security for the purpose of the threshold. Therefore Article 133(1)(b) did not apply.
- Article 133(1)(c): The petitioner sought a certificate on the ground that the appeal raised a question of public importance — whether an idol is a "person" and could be within the definition of "agriculturist" under Section 3 of Madras Act IV of 1938. The Court declined to decide that question because the suit had been brought only on behalf of the temple as a religious institution, and a religious institution is excluded from the definition of "person" in Section 3 of the Madras Act. Given that, the Court held no question of public importance arose in the circumstances and it was unnecessary to obtain a valuation report for item 1 of the plaint schedule.
Holding and Implications
Holding: The petition for leave to appeal to the Supreme Court is DISMISSED with costs.
Implications:
- The direct effect is that the petitioner is denied leave to appeal to the Supreme Court; the High Court's decree and directions (including the direction to the lower court to pass a decree for redemption after ascertaining sums due) remain in force as to item 1.
- The Court declined to certify any question of public importance in this matter and therefore did not refer the question (whether an idol is a "person" for purposes of Section 3, Madras Act IV of 1938) for consideration by the Supreme Court.
- The opinion does not state that it establishes or announces any wider binding precedent beyond the specific conclusions reached in interpreting the scope of Article 133(1) as applied to the facts before the Court. The immediate consequence is confined to denial of leave and the cost order.
1. This is an appln under Article 133 of the Const Ind for leave to appeal to the S. Ct against the decree & judgment of this Ct dated 25-1-1950 in App, No. 377 of 1948.
2. The trustee of Sri Chenna Kesavaswami Temple instituted O. S. No. 73 of 1946 on the file of the Ct of the Subordinate Judge of Ellpre against several defts for recovery of possession of certain properties & for mesne profits. The suit comprised of various items; but before the trial, the pltf compromised with some of the defts & the suit was disposed on the merits only against defts 1 to 6 & 17 to 28. Their claim related to items 1 & 7 of the plaint schedule. The case of the pltf was that the lands in question belong to the deity & the mtges effected by the archakas were invalid & therefore the pltf was entitled to recover possession of the same with mesne profits. Deft 5 who is the son of the mtgee under Ex. B. 1, one of the impugned mtges' raised the plea that he acquired a right by prescription, the mtgee's right. The Subordinate Judge decreed the suit in respect of both the items. In appeal, this Ct confirmed the decree of the Subordinate Judge in regard to item 7 but in respect of item 1 held that deft 5 acquired a right to the mtge by prescription. In the result, we directed the lower Ct to give a decree for redemption after determining the sums due to the mtgee under Ex. B. 1. The effect of our judgment is that the pltf obtained a decree for redemption in respect of item 1. His title to that item was not negatived & his right to possession was conceded, & he was held entitled to recover possession after discharging the mtge. The pltf has filed this appln for leave to appeal to the S. Ct.
3. The petnr argues that he is entitled to leave under Article 133(1) of the Const. This Article runs as follows:
"1. An appeal shall lie to the S. Ct from any judgment, decree or final order in a civil proceeding of a H. Ct in the territory of India if the H. Ct certifies
(a) that the amount or value of the subject matter of the dispute in the Ct of first instance & still in dispute on appeal was & 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 S. Ct."
We have held in C. M. P. No. 6638 of 1950 that an appeal will lie to the S. Ct if the value of the subject matter of the suit & that of the appeal was Rs. 10,000 in regard to judgments delivered, prior to the date when the Constitution came into force. The petnr therefore would be entitled to prefer an appeal to the S. Ct under Article 133(1)(a) if the subject matter of the suit & that in dispute on appeal is not less than Rs. 10,000. From the facts stated above, it is clear that though the suit was filed based on title for possession of item 1, in view of our judgment, the subject matter of the appeal is confined only to the mtge interest claimed by the fifth deft. If so, the value of the subject matter of the dispute in appeal would only be the mtge amount which is admittedly below Rs. 10,000. In a suit for redemption it is not correct to state that the property in dispute is the security given for the loan. The subject matter is the loan for which the security was given. That the value of the subject matter of a suit is the mtge money & not the property given as security is also supported by the judgment of the Judicial Committee in 'Abdi Hussain Khan v. Ahmad Hussain', 45 MLJ 253: (AIR (10) 1923 PC 102). In that case, the suit was filed to enforce an annuity of Rs. 125 per annum. The P. C. held that Section 110, C. P. C. 1908, applies to the value of the annuity which is sought to be recovered, not to the value of the property upon which that annuity of Rs. 125 is charged. We cannot, therefore, hold that the value of the subject matter in dispute in appeal is more than Rs. 10,000. We may also point out that the value of the property secured is also not admitted by the resps to be the value of upwards of Rs. 10,000.
4. It is then contended that the petnr would be entitled under Article 133(1)(b) of the Constitution for leave. The learned counsel's argument is that our judgment involved directly or indirectly some claim or question respecting property of the like amount or value. In 'Subramania Iyer v. Sellammal', 39 Mad 843: (AIR (3) 1916 Mad 985) in construing the second para of Section 110, C. P. C., which is analogous to Article 133(1)(b) of the Constitution, the learned Judges held that the words "involved, directly or indirectly" contained in para 2 of Section 110, C. P. C. could not be read as including cases which involved nothing but the actual subject matter in dispute in the appeal. It is argued on the assumption that the subject matter of the suit & the appeal was only the amount advanced on the mtge, the decision" of the H. C. involved a question, respecting property of a higher value as, if the amount was not paid, the pltf would not be entitled to recover possession & also if the mtgee filed a suit & obtained a decree, he might sell the property of a value of not less than Rs. 10,000. In support of this argument learned counsel relied, on a decision of the Allahabad H. C. in 'Nadir Hussain v. Municipal Board, Agra', ILR 1937 All 405: (AIR (24) 1937 All 169). In that case, the following are the facts material to our purpose. A suit was filed against defts 2 to 4 for recovery of Rs. 7625 on a hypothecation bond & in case of default, the mtge property was liable to be sold. The Subordinate Judge gave a decree against defts 2 to 4 for a sum of Rs. 915 & in default the properties were liable to be sold. The H. G. held that the amount of Rs. 7625 was charged on the property. It is therefore clear that the value of the subject matter so far as defts 2 to 4 were concerned, was less than Rs. 10,000. But the learned Judges gave leave under para 2 to Section 110, C. P. C. They' observed as follows:
"But it cannot be disputed that property worth more than Rs. 7625 can be put up for sale at auction in execution of the mtge decree & sold. After the realisation of Rs. 7625 the balance will have to be paid to the defts. It is also clear that at auction the mtged property may not fetch its full value & therefore property worth more than Rs. 10,000 may be sold at auction for realisation of Rs. 7625 only."
On the aforesaid reasoning, they held that the appeal involved directly or indirectly a claim in respect of property of the value of more than Rs. 10,000. The same view is expressed by the Patna H. C. in 'Ishwari Prasad v. Kameshwar Singh', AIR (28) 1941 Pat 288: (194 IC 654). There the pltf brought a suit for a declaration that a certain property could not be attached & sold in execution of the certificate in certificate case No. 1099 of 1934-35. The suit was valued at Rs. 7699 odd because that was the amount for which the certificate was issued, it was conceded that the value of the property which was liable to be sold was Rs. 52,000 odd. On those facts, the learned Judges held that para 2 of Section 110, C. P. C., applied & gave leave to appeal to the P. C. The reason for their decision is found in the following passage:
"It is plain that if the pltfs do not succeed in this litigation the property which they have purchased in execution of their mtge decree will be liable to be sold, & that property is worth much more than Rs. 10,000. That being so, it is difficult to hold that the decree which is sought to be appealed from does not involve Indirectly a question respecting property more than Rs. 10,000."
5. We are unable to accept the above interpretation put upon Section 110(b), C. P. C. The paras in Section 110, C. P. C. must be read together so as to reconcile the various provisions. If the provisions of para 2 are interpreted in the aforesaid manner, the provisions of para 1 would become nugatory. If the view adumbrated above is logically extended, it will have to be held that even in money decrees the Judgment & decree of the appellate Ct involved, directly or indirectly, a question respecting property of a value not less than Rs. 10,000 as, in execution of that money decree, properties of that value may be sold. Under Section 110, para 2, the decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value. Can it be said that the appellate decree involved a claim or question in respect of the property given as security. These words were construed in 'Appalaraja v. Rangappa', 6 MLW 12: (AIR (5) 1918 Mad 632). The learned Judges say at p. 14:
"But in construing the word 'property' in para 2, we cannot lose sight of para 1 of Section 110 to which the second is an alternative. I think 'property' in para 2 of section 110 means rights in property inferior to full ownership where such inferior rights alone are the subject matter in dispute. Hence para 2 means that suit must, to satisfy its conditions, involve rights & claims to property which rights & claims are worth Rs. 10,000 & upwards."
In this case the claim is either the right to redeem the mtge or the claim to recover the amount. That claim is not either directly or indirectly, of the value of more than Rs. 10,000. In 'Satibaladasi v. Chotangapur Banking Association Ltd., ILR 194S (27) Pat 237: (AIR (36) 1949 Pat 448) when a similar contention was raised, it was negatived with the following observation:
"In a mtge suit the property which is given as security for the loan is not the 'property' in dispute in the suit, nor is a decision that the mtgee is entitled to recover the money which he advanced one involving either a claim to or question respecting the security. The only property in dispute in a mtge suit is the loan advanced to the mtgor by the mtgee. The mere fact that, if this loan is not repaid in the time fixed by the decree, the mtged property will be sold does not, in my opinion, raise any question affecting the security."
We respectfuly agree with those observations. The claim in this appeal does not raise any question either directly or indirectly, affecting the security. The only question is whether the pltf is bound to redeem the mtge by paying the amount ascertained by the ct below. We therefore hold that the pltf cannot take advantage of Article 133(1)(b) either.
6. It is then contended that we should give a certificate under Clause (c) of Article 133(1) on the ground that the appeal involved a question of public importance viz., whether an idol is a 'person' & therefore eligible to come within the definition of an "agriculturist" within the meaning of Section 3 of Madras Act IV (4) of 1938. But we have abstained from deciding that point as the suit was brought only on behalf of the temple, a religious institution, which is excluded from the definition of a "person" in Section 3 of Madras Act IV (4) of 1938. It therefore follows that no question of public importance arises in this case. In the view we are taking it is unnecessary to call for a report on the question of the valuation of item 1 of the plaint schedule property.
7. In the result, the petn is dismissed with costs.
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