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Probodh Chandra Roy v. Hara Hari Roy And Anr.
Written Summary of the Opinion (Chakravartti, C.J.)
Factual and Procedural Background
This is an application under Article 183(1) of the Constitution of India for leave to appeal to the Supreme Court by the party who had been defendant No. 1 in a partition suit. The properties sought to be partitioned were valued at Rs. 59,607. The applicant's share was undisputedly one-half, so the value of the subject-matter in dispute for the purposes of appeal valuation exceeded Rs. 20,000 according to the principle that valuation in partition suits is taken as the appellant's share.
At trial the applicant (defendant No. 1) contended that the properties were his self-acquired properties and therefore not liable to be partitioned and that he need not render accounts. The trial court rejected that defence and decreed both partition and an order for accounts (the trial decree was quoted in the opinion). On appeal the decree was maintained in substance but the appellate court modified the order for accounts so that the accounts were to be rendered only up to the date of institution of the suit and for the limited purpose of determining assets available for partition (the appellate decree was also quoted). The present application to this Court raised, centrally, the question whether the appellate judgment was a "judgment of affirmance" for the purposes of obtaining leave to appeal to the Supreme Court.
Legal Issues Presented
- Whether the judgment sought to be appealed from (the appellate court's decision) is a "judgment of affirmance" as that expression is used for the purpose of granting leave to appeal to the Supreme Court under Article 133(1).
- Whether leave to appeal to the Supreme Court should be granted in the circumstances of this case, given the modification by the appellate court of the trial court's decree for accounts.
Arguments of the Parties
Applicant / Defendant No. 1 (Mr. Sen Gupta)
- Contended that the appellate judgment did not affirm the trial court's decision because it varied the trial court's decree as to the rendition of accounts.
- Argued that under a strict reading of the concluding paragraph of Article 133(1) the appellate judgment could not be treated as a judgment of affirmance.
- Maintained that even considering subsequent refinements in decisions on the point (which the opinion notes are not mutually consistent), the judgment still would not be a judgment of affirmance.
Plaintiffs (Mr. Sinha)
- Contended that the appellate variation was in the petitioner's favour and that established decisions prevent the petitioner from using such a favourable variation to contend that the judgment was not one of affirmance.
- Argued that, because the variation benefitted the petitioner, he should not be permitted to reopen other matters which had been concluded by concurrent findings of the trial and appellate courts.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Annapurnabai v. Ruprao (I.L.R. 51 Cal. 969) | Holds that where a plaintiff's money claim is decreed for a larger part on appeal but still not fully decreed, the appellate decision is not a judgment of affirmance. | The Court referred to this Privy Council decision as having unsettled the earlier practice of limiting inquiry to the portion proposed for further appeal; it was considered as authority for a restrictive approach, particularly in money-claim cases. |
| Narendra Lal Das Choudhury v. Gopendra Lal Das Choudhury (31 C.W.N. 572) | Interpreted Annapurnabai and examined whether the Privy Council decision requires abandoning the earlier principle; Sir George Rankin limited Annapurnabai's application to money/damages claims and continued to look into the subject-matter of the proposed appeal for concurrence. | The Court treated this as a leading decision demonstrating the continued adherence, by the Calcutta Courts, to the narrower traditional principle while acknowledging doubts about its absolute correctness. |
| Bibhootibhoosan Datta v. Sreepati Datta (1935 I.L.R. 62 Cal. 257) | Illustrates continuation of the traditional practice despite doubts; used as an example of following precedent in the absence of an authoritative reversal. | The Court cited this case as another instance where earlier practice was followed even though the judges expressed reservations; it was not treated as decisively resolving the doubt. |
Court's Reasoning and Analysis
The Court's analysis proceeded in distinct steps:
- Valuation threshold: The Court first noted the valuation facts — properties valued at Rs. 59,607 and the applicant's one-half share — and concluded that the value of the subject-matter for appeal purposes exceeded the statutory threshold (over Rs. 20,000) when valuing the appellant's share in partition suits.
- Central enquiry — "judgment of affirmance": The Court identified the pivotal legal issue as whether the appellate judgment was a "judgment of affirmance." Both parties concentrated their arguments on this point.
- Description of factual posture: The applicant's trial defence was that the properties were self-acquired and not liable to partition or accounting; the trial court ordered partition and a stringent order for accounts (quoted). On appeal the appellate court modified that order for accounts so that accounts were to be rendered only up to the date of institution and for the limited purpose of determining assets available for partition (quoted).
- Survey of precedent and established practice: The Court reviewed the historical practice of limiting the inquiry about affirmance to the portion of the case taken to further appeal, and then discussed how the Privy Council's decision in Annapurnabai introduced a constraint (noting particularly its application to money claims). The Court treated Narendra Lal Das Choudhury as a leading decision that examined Annapurnabai and, for the time being, limited Annapurnabai's application to monetary claims while expressing doubts about the underlying principle. Bibhootibhoosan Datta was cited as another example of adherence to tradition with judicial reservations.
-
Formulation of the controlling principle: The Court articulated the following principle from the authorities and its own reasoning:
- If a litigant receives complete success on a particular matter in the appellate court — i.e., the appellate decision fully satisfies his claim on that matter — he cannot rely on that variation in his favour to argue that the appellate judgment is not a judgment of affirmance (because that particular matter would not be taken to the higher court and the remaining matters would be purely matters of affirmance).
- Conversely, if the appellate modification in the litigant's favour is partial and falls short of his full claim on that matter, he may still include the remainder of the claim in a further appeal; in that case the appellate judgment is properly characterized as partly of affirmance and partly of modification.
- Application to the present facts: Applying that principle, the Court observed that the applicant's case at trial was that there should be no partition and no accounting at all. The trial court ordered accounts; the appellate court reduced the rigor of that order but still maintained an order for accounts. Because the appellate modification did not fully concede the applicant's contention (no accounting at all), the applicant remained aggrieved on that point and would include it in a further appeal. Therefore the judgment to be challenged would not be wholly an affirmance — it would be partly affirmance and partly modification.
- Resolution of residual doubt in applicant's favour: The Court acknowledged that the question is not free from difficulty and that judicial statements over time have not been wholly reconcilable. Given the doubt, the Court resolved it in favour of the applicant and granted leave to appeal.
Holding and Implications
Holding:
LEAVE TO APPEAL GRANTED. The application for leave to appeal to the Supreme Court under Article 133(1) of the Constitution of India is allowed; the necessary certificate is to be drawn up.
Immediate consequences and orders given in the opinion:
- The application is allowed and leave to appeal to the Supreme Court under Article 133(1) is granted.
- The costs of the application are ordered to be costs in the appeal.
- The hearing-fee for this application is assessed at five gold mohurs.
- Guha, J. concurred with the judgment (the opinion records "I agree").
Implications:
The direct effect is that the applicant (defendant No. 1) is granted leave to pursue a further appeal to the Supreme Court on the questions raised, including those relating to the order for accounts. The opinion discusses prior authorities and the applicable principle for determining what constitutes a "judgment of affirmance," but it does not purport to announce a novel rule of law beyond applying those principles to the facts before the Court. The Court expressly resolved an acknowledged doubt in the applicant's favour.
Judgment delivered by: Chakravartti, C.J. — Application allowed; leave granted. Guha, J. agreed. (Signature in text: "A.K.D.G")
Chakravartti, C.J:— This is an application under Article 183(1) of the Constitution of India for leave to appeal to the Supreme Court. The applicant was defendant No. 1 in a partition suit.
2. It is stated that the value of the properties, which were sought to be partitioned, was Rs. 59,607. There is no dispute that the applicant's share is one-half. That being so, the value of the subject-matter in dispute in the court of first instance and in the proposed appeal is well over Rs. 20,000 even according to the principle that the valuation of appeals arising out of suits for partition is the valuation of the appellant's share. The next question is whether the judgment sought to be appealed from is one of affirmance. It was on that point that the entire argument before us was concentrated.
3. As I have stated already, the petitioner before us was one of the defendants in the suit and the defence put forward by him was that the properties mentioned in the plaint were not liable to be partitioned, inasmuch as they were his self-acquired properties and that necessarily, he was not liable to render any account to anybody. His claim that the properties were not liable to be partitioned was not accepted by the trial Court, which made a decree both for partition and accounts. The portion of the decree, which was concerned with an order for accounts, was expressed in the following language:
“That the defendant No. 1 is also directed to amicably render to the plaintiffs accounts in respect of the Ejmali properties mentioned in Schedules ‘Ka’, ‘Kha’ and ‘Ga’ for the period from Chaitra, 1328 B.S (March-April, 1920), till the date of the institution of the present suit on the footing that he was the Karta, within five months from date failing which a commissioner will be appointed on plaintiffs application for the purpose and the cost thereof will be realised from defendant No. 1 in execution. That the defendante No. 1 will be liable to account for what he got in and not for what he ought to have got in with greater skill and diligence.”
4. From that decree defendant No. 1, appealed. The appeal failed on all points, but with regard to the decree for accounts, a slight change was made. What the appellate decree said was as follows:
“Defendent No. 1 is directed to amicably render to the plaintiffs accounts in respect of ejmali properties mentioned in schedules ‘Ka’, ‘Kha’ and ‘Ga’ to the date of the institution of the present suit only for the purpose of determining what assets were avail-able for partition on the date of the suit. A commissioner will be appointed on the plaintiffs' application for the purpose, and the cost thereof will be realised from the defendant No. 1 in execution.”
5. It was contended by Mr. Sen Gupta that the judgment of this Court did not affirm the decision of the trial Court inasmuch as it clearly varied the decree made by the trial Court as regards the rendition of accounts. The contention urged was that if one went by the strict language of the concluding paragraph of Article 133(1), it would be unarguable that the judgment was a judgment of affirmance. But, so it was contended further, even if one took into account the refinements which had been introduced in some of the decisions of this Court, refinements which were not mutually very consistent, the judgment would still not be found to be a judgment of affirmance.
6. On behalf of the plaintiffs it was, on the other hand, contended by Mr. Sinha that the only variation which had been made by the appellate Court was a variation in the petitioner's favour and that, according to the decisions of this Court, the petitioner could not utilise that variation for the purpose of making out that the judgment was not one of affirmance and, on that basis, reopen other questions which stood concluded by the concurrent decisions of two Courts.
7. It will appear from an examination of the cases that in considering the question as to whether a judgment, modifying the judgment of the trial Court in the manner found in the present case, is a judgment of affirmance, some difficulty has been felt. A practice seems to have been established in this Court long ago to limit the enquiry only to that part of the case which was proposed to be taken on further appeal to the Privy Council and to enquire whether the decision with regard to that part was concurrent. That practice was, to a certain extent, unsettled by the decision of the Privy Council in the case of Anna-purnabai v. Ruprao. (1) (I.L.R 51 Cal. 969), where it was held that if the plaintiff's claim was a money claim, which was decreed by the trial Court as to a certain part and then on appeal decreed by the Appellate Court as to a larger part, but still not fully decreed, the decision of the Appellate Court would not be a decision of affirmance. In the case of Narendra Lal Das Choudhury v. Gopendra Lal Das Choudhury (2) (31 C.W.N 572), which has not unnaturally come to be regarded as a leading decision on the subject, Sir George Rankin had to examine the decision of the Privy Council in Annapur-nabai's case (1) (I.L.R 51 Cal. 969) and it appears that, for the time being at least, he was inclined to limit its application to cases of claims for money or claims for damages. He observed that he did not read the decision of the Privy Council as requiring him to abandon the principle which this Court, along with other Courts, had been following for a long time and to cease to look into the subject-matter of the proposed appeal in order to see whether the judgment, covering the area of the appeal, was a judgment of affirmance. Significantly, however, Sir George Rankin added that he had some doubt as to whether, in the end, the principle followed by this Court up to that time and which for the time being he would continue to follow, would be found to be in accordance with the true construction of section 110 of the Code. The principle laid down by Sir George Rankin has subsequently been followed in other cases, of which the case of Bibhootibhoosan Datta v. Sreepati Datta (3) [(1935) I.L.R 62 Cal. 257], is an apt example, although the absence of any statement of the necessary] facts prevents the decision from being helpful There also, the learned Judges appear to have felt some doubt as to whether they were taking the right view, but they preferred to follow tradition and precedent in the absence of an authoritative decision of the Privy Council that the view was erroneous.
8. The principle, as far as I can see, is this. If a person has a particular claim or a case in regard to one of the matters involved in a suit and he succeeds only in part in the trial Court or fails there altogether, but in the Appellate Court he succeeds entirely, then such variation of the trial Court's decree in his own favour cannot be made a ground for asserting that the judgment is not a judgment of affirmance and for claiming to be entitled to go on further appeal with regard to other matters on which both the Courts have held against him. One can understand the reason behind this principle, which is plainly good reason. The reason is that with regard to the matter to which the variation relates, there will be necessarily no appeal, since as to that matter the intending appellant has wholly succeeded and, therefore, that part of the judgment which will really be taken by him on further appeal, will be entirely a judgment of affirmance. But very different is the case where the variation in the intending appellant's favour falls short of his total claim as regards the particular matter concerned, because in such a case he will include the remainder of his claim even as to that matter in the appeal and, therefore, the judgment which he will submit to the superior court for review, including, as it must, that part which has varied the trial Court's decree, will not be a judgment of affirmance but will be a judgment, partly of affirmance and partly of modification. If we apply that principle to the present case, the answer as to whether leave should or should not be granted, appears to me to be plain. The intending appellant's case before the trial Court was that there should be no partition at all and necessarily no accounting. The trial Court did not accept his case and made an order for accounts in a somewhat stringent form. The Appellate Court modified the rigour of the order for accounts, but it still maintained the order and the resultant position was that the intending appellant's case that there should not be any accounting at all was not yet fully conceded. He has, therefore, taken a ground against even the modified order for accounting. This, therefore, is not a case where, with regard to the point on which, there was a modification of the trial Court's decree by the Appellate Court, the intending appellant's claim, so far as that point was concerned, has been entirely satisfied and, therefore, not a case where the judgment that will be challenged before the Supreme Court will not be, as regards any part of it, a judgment of variation but wholly a judgment of affirmance. Mr. Sen Gupta referred us to certain later decisions of this Court* which, he said, had taken a broader view than in the earlier cases. It is not necessary to refer to the later cases, because in my view, they are not very helpful, inasmuch as they do not give any reasons. I consider it all the less necessary to do so, because even if I limit myself to the older cases, I find myself still able to hold that this is not a case where the judgment proposed to be appealed against can be said to be a judgment of affirmance, inasmuch as the portion which has varied) the trial Court's decree is also going to be under appeal, the variation not being to the entire extent that the appellant claimed and claims.
9. I desire to add further that, in any event, the question is not free from difficulty. As I said a few moments ago, a desire to be liberal in the matter of granting leave appears to have involved the Court into statements of various principles and doctrines at various times which are not wholly reconcilable. But the resultant position is that whether a judgment like that in the present case is or is not a judgment of affirmance, is a matter at least of doubt and where there is doubt, I would resolve it by deciding in, favour of the applicant and granting him leave.
10. For the reasons given above, this application is allowed.
11. Leave to appeal to the Supreme Court under Article 133(1) of the Constitution of India is granted. Let the necessary certificate be drawn up.
12. The costs of the application will be costs in the appeal. We assess the hearing-fee at five gold mohurs.
Guha, J.:— I agree.
A.K.D.G
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