Citation Codes

Equivalent Citations

citation codes

Case Number

Privy Council Application No. 4 of 1927

Attorney(S)

Mr. Gunada Gharan Sen (Advocate) (with Babu Priya Nath Dutt) for the Appellant.
Mr. Gopal Chandra Das (Advocate) (with Babus Satyendra Kishore Ghose, Bircndra Kumar De, Benoyendra Nath Palit, Nripendra Chandra Das and Nikunja Behari Pioy) for the Respondents.

Judges

Rankin, C.J
C.C Ghose, J.

Acts

Section 110 of the Civil P.C.,

See more information ...

Smart Summary

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

Factual and Procedural Background

The applicant (the plaintiff in the suit) sought a certificate that the case was fit to be taken on appeal to His Majesty in Council under Section 110 of the Civil Procedure Code. The underlying suit, instituted in 1911, was for partition of a joint family property valued at 10 lacs of rupees. A preliminary decree was passed in 1923 and an appeal was brought to the High Court, which decided the appeal in May 1926.

On appeal the High Court found that the plaintiff (applicant) was entitled to a larger share than the trial Court had given and awarded the plaintiff, Defendant No. 2 and Defendant No. 3 each a 4/15ths share — reversing the trial Court on that point. Other matters (including the correct manner of taking accounts against a defendant who had acted as karta, and a question about a reserve fund) were, however, affirmed by the High Court. The applicant does not claim entitlement to more than the 4/15ths share ultimately awarded by the High Court.

The present application seeks a certificate for appeal to His Majesty in Council; the central procedural question is whether the wording of Section 110 Civil P.C. requires the applicant to show that there is a substantial question of law for the purpose of obtaining such a certificate where the High Court has varied the trial Court's decree on some points but affirmed it on others.

Legal Issues Presented

Whether the applicant is entitled to a certificate to appeal to His Majesty in Council under Section 110 Civil P.C. when the High Court has varied the trial Court's decree in the applicant's favour on the question of share but has affirmed the trial Court on other points.
Whether, under Section 110 Civil P.C., the applicant must demonstrate the existence of a "substantial question of law" where the High Court's decision departs from the trial Court on some matters but concurs on others — in particular, how to treat the "subject-matter of the appeal" principle derived from earlier authorities such as Raja Sree Nath Roy's case.
How to reconcile or apply prior authorities (including Raja Sree Nath Roy, Langandeo Prosad Singh, decisions of the Allahabad High Court, and the Privy Council's decision in Annapurnabai v. Ruprao) in determining entitlement to a certificate of appeal under Section 110.

Arguments of the Parties

Applicant's Arguments

The applicant contended that the preliminary decree gave him a smaller share than he was entitled to and that the High Court was correct in awarding him the larger share (4/15ths).
The applicant complained that he had an insufficient opportunity to examine the accounts presented against a defendant who had acted as karta; however, the High Court affirmed the trial Court on that point.
The applicant did not claim entitlement to any share greater than the 4/15ths ultimately awarded by the High Court.
The applicant sought a certificate to appeal to the Privy Council and argued, in substance, that the wording of Section 110 of the Civil P.C. did not impose upon him the obligation of showing that there was a substantial question of law (i.e., he contended he should be entitled to appeal notwithstanding the absence of a substantial question of law where the subject-matter of the proposed appeal remained).

The opinion does not contain a detailed account of the Opposite Parties' legal arguments; their positions are referred to only insofar as they appear in the factual and procedural history and in the Court's consideration of precedent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raja Sree Nath Roy v. Secretary of State [1904] 8 C.W.N. 294	Origin of the doctrine that the language of Section 110 should be construed with reference to the subject-matter in dispute on appeal to the Privy Council; if the two Courts are at one on the matter to be debated, the decree is treated as one of affirmance.	The Court reviewed this as a foundational case. It considered the doctrine but noted later authorities and the Privy Council decision which limited or overruled aspects of its application (particularly in relation to amounts). The Court declined to treat Sree Nath Roy's reasoning as universally applicable without regard to substance.
Langandeo Prosad Singh v. D.J. Reid [1919] 23 C.W.N. 582	Illustrates that where the High Court varied the decision of the lower Court to the detriment of the applicant for leave, the applicant may be entitled to appeal to the Judicial Committee as of right.	The Court cited this case as distinguishable from Raja Sree Nath Roy and as an example where the variation by the High Court (to the applicant's prejudice) justified appeal as of right. It was used to show that the subject-matter approach cannot be applied mechanically.
Chaitanya Charan Sett v. Mohommad Yusuf A.I.R. 1922 Cal. 316	The opinion states this case was not necessary to refer to in the present decision.	The Court explicitly stated it need not refer to this case for its present reasoning.
Uma Churn Sett v. Kanai Lal Sett A.I.R. 1921 Cal. 81	The opinion states this case was not necessary to refer to in the present decision.	The Court explicitly stated it need not refer to this case for its present reasoning.
Bhagwan Singh v. Allahabad Bank, Limited A.I.R. 1921 All. 270	Applied or discussed the view (following a dissent by Judicial Commissioner Chamier) that for Section 110 a decree is either modified or affirmed, and if modified it does not fall within the concluding words of Section 110.	The Court noted that the Allahabad High Court in that case rejected a Sree Nath Roy type treatment where a decree was modified (even partly) and said such a decree could not be treated as one of affirmance; the present Court observed that view had strong points but that subsequent Allahabad decisions were not entirely consistent with it.
Kamal Nath v. Bithal Das A.I.R. 1922 All. 89	Reinforced the approach of looking to the substance of the appeal: where part of the decree is a modification in favour of the applicant and another part is an affirmance on the main point sought to be appealed, one must identify the subject-matter of the appeal to His Majesty in Council.	The Court relied on this decision to underline the need to look to the substance and the subject-matter of the proposed appeal. In Kamal Nath the High Court's modification was in the applicant's favour (interest reduced), but the applicant sought leave on a different portion (validity of mortgage) where the High Court had affirmed the trial Court; the Allahabad Court held that the applicant was not entitled as of right to appeal on that affirmed portion.
Annapurnabai v. Ruprao (Judicial Committee of the Privy Council)	Privy Council decision indicating that the High Court's refusal of leave on the basis that the two Indian Courts were in agreement (when they had differed on the amount of maintenance) was incorrect; the decision appears to limit or overrule the application of Sree Nath Roy's subject-matter doctrine in amount/damages disputes.	The Court considered Annapurnabai carefully and concluded that it must be taken as limiting Sree Nath Roy's application, particularly where the difference between courts relates solely to the amount of a decree or damages. However, the Court held that Annapurnabai did not, by itself, justify abandoning the substance/subject-matter principle in all cases.

Court's Reasoning and Analysis

The Court proceeded by examining the nature of the applicant's grievance and the authorities on the interpretation of Section 110 Civil P.C. The essential analytical steps in the Court's reasoning were:

Identification of the precise subject-matter of the proposed appeal: the applicant had succeeded on the question of his share (receiving 4/15ths) and did not claim entitlement to any greater share; other points (accounts, reserve fund) were affirmed by the High Court and did not, in the Court's view, raise substantial questions of law.
Review of authorities addressing how Section 110 should be construed. The Court traced the doctrine from Raja Sree Nath Roy, which held that the language of Section 110 should be read with reference to the subject-matter of the proposed appeal (if both courts are at one on what will be debated before the Privy Council, the decree is in effect one of affirmance).
Consideration of subsequent decisions showing that this principle must be applied with attention to substance: Langandeo Prosad Singh was cited as an example where the High Court had varied the trial Court to the applicant's detriment, justifying appeal; Allahabad decisions showed inconsistent formulations (one view treating a modified decree as not an affirmance; another decision in Kamal Nath emphasizing that one must look to the substance and subject-matter).
Examination of the Privy Council decision in Annapurnabai v. Ruprao, which indicated that a High Court's refusal of leave on the basis that the two Indian Courts were "in agreement" was incorrect where the only substantive matter in issue was the amount of maintenance; that decision was taken to limit the Sree Nath Roy approach insofar as amount/damages disputes are concerned.
Balancing these authorities, the Court concluded that Annapurnabai did not warrant abandoning the established practice of looking to the substance and subject-matter of the proposed appeal in every case. The Court accepted that where the difference between courts is merely as to amount (damages or monetary relief), Annapurnabai shows that an appeal may still be appropriate; but it was not prepared to hold that an applicant who has obtained the share he sought can, without showing a substantial question of law, appeal other points on which both Courts were in agreement.
Applying that analysis to the facts: because the applicant had obtained the 4/15ths share he sought and did not assert a claim to a larger share, and because other contested matters (accounts and reserve fund) were affirmed by the High Court and did not, in the Judge's opinion, raise substantial questions of law, the applicant had not satisfied any requirement entitling him to a certificate to appeal to His Majesty in Council.

Holding and Implications

Holding: The application for a certificate to appeal to His Majesty in Council is refused and the application is dismissed with costs.

Immediate consequences:

The application for a certificate was refused (the Court concluded the applicant had not shown a substantial question of law appropriate for certification under Section 110 in the circumstances described).
The application was dismissed with costs: a hearing-fee of six gold mohurs was to be divided equally between the three sets of Opposite Parties who had appeared.

Implications regarding precedent and future appeals:

The Court declined to treat Annapurnabai v. Ruprao as overruling the long-standing principle of looking to the substance and subject-matter of the proposed appeal in every situation; it read Annapurnabai as limiting the Sree Nath Roy doctrine primarily in cases where the dispute relates solely to the amount of a decree or damages.
The decision does not purport to create a new broad precedent dispensing with the need to show a substantial question of law under Section 110; rather, it reaffirms the approach of examining the substance of the appeal and limits the scope of Annapurnabai to amount/damages disputes.
No broader alteration of the law was announced beyond the Court's refusal to certify this particular application; the direct effect is confined to the parties in this case.

Delivered by C.C. Ghose, J. (the judgment concludes: "I agree." following the primary judgment).

Show full summary ...

Narendra Lal Das Chaudhury v. Gopendra Lal Das Chaudhury

1. This is an application for a certificate that the case is a fit one to be taken on appeal to His Majesty in Council. The applicant is the plaintiff in the suit. The suit was brought for partition of a joint family property valued at 10 lacs of rupees and the suit itself has been going on ever since 1911. In the end, a preliminary decree was passed in 1923 and an appeal was brought to this High Court. That appeal was decided in May 1926 and it appears that the first question which arose was this that the plaintiff complained that the preliminary decree gave him a smaller share in the property than he was entitled to get. On that point the High Court was of opinion that the appellant was in the right and held at his instance that the share which should go to him was what he had contended for. The plaintiffs, Defendant No. 2 and Defendant No. 3, were given 4/15ths share each. In that respect, the High Court reversed the finding of the trial Court. Other points were raised upon the correct way in which the accounts should be taken as against one of the defendants who had acted as karta of the family and in certain other capacities. The complaint of the plaintiff was really that he had had an insufficient opportunity of examining the accounts and on that point the High Court on appeal affirmed the judgment of the Court below and I am of opinion that there is no substantial point of law arising in connection with that point.

2. Another question was raised with regard to a reserve fund with regard to which the High Court took the same view as the trial Court. Here again, I am of opinion that no substantial question of law arises with regard to that point. The proposed appellant to England does not claim that he is entitled or has at any time claimed to be entitled to a greater share than 4/15ths. This is not a case where the trial Court gave him one share, the High Court gave him another share and his real claim is to have something further given to him. He has no pretence of any grievance as regards the matter of the share but the question is whether all the same he is not entitled to say that the wording of Section 110 of the Civil P.C., does not impose upon him the obligation of showing that there is a substantial question of law.

3. The cases that have raised this question in this Court from time to time have bean referred to. The first case is the case of Raja Sree Nath Roy v. Secretary of State [1904] 8 C.W.N. 294, where the Judge gave an award of compensation at a certain figure and the High Court increased that amount. The applicant desired to go to the Privy Council so that the amount might be further increased and it was held that the two Courts were at one upon-the only matter which was going to the Privy Council, namely, on the question whether beyond the amount awarded by the High Court the applicant had any claim. That case is the origin of the doctrine that the language which now finds place in section 110 of the code is to be construed with reference to the subject-matter in dispute in appeal to the Privy Council. The basis of that case is that if the two Courts are at one upon the matter which is to be in debate before the Privy Council then it is a case of a decree which affirms the decision of the Court immediately below.

4. The next case is the case of Langandeo Prosad Singh v. D.J. Reid [1919] 23 C.W.N. 582. There A was the person who had erected a dam across a river. B was the person who objected to this as a riparian owner. The view taken by the High Court and the trial Court was that A had no right fact erect the dam, but whereas the trial Court had refused to grant B any damages the High Court granted him Rupees 5,000 for damages. The question was whether A was entitled to appeal to the Judicial Committee as of right and the High Court held that he was, pointing out that the case was not on the same footing as Sree Nath Roy's case [1904] 8 C.W.N. 294 because in that case the decision from which the applicant desired to appeal was with reference to the balance of his claim whereas in the case then under consideration the High Court had varied the decision of the first Court to the detriment of the applicant for leave.

5. I do not think that the case of Chaitanya Charan Sett v. Mohommad Yusuf A.I.R. 1922 Cal. 316 or the case of Uma Churn Sett v. Kanai Lal Sett A.I.R. 1921 Cal. 81 need be referred to here but there are two cases of the Allahabad High Court which I desire to mention. One is the case of Bhagwan Singh v. Allahabad Bank, Limited A.I.R. 1921 All. 270, In that case, it is true that the decree of the Court below was modified by the High Court to the prejudice of the applicant for leave by nearly Rs. 8,000 and the application was opposed on the ground that the High Court decree was really one of affirmance. Reliance was placed upon Sree Nath Roy's case [1904] 8 C.W.N. 294, it being contended that the two Courts were at one in respect of all other matters but had merely differed on the matter of amount. In that case the Allahabad High Court referred to a judgment by the then Judicial Commissioner Mr. Chamier, as he then was, where he dissented from the decision in Raja Sree Nath Roy's case [1904] 8 C.W.N. 294 and appears to have taken the view that for the purposes of Section 110 a decree is either modified or affirmed and that if it is modified or varied then it does not come within the concluding words of Section 110. The learned Judges of the Allahabad High Court on their own account then went on to say:

It can by no stretch of imagination be said that a decree which modifies the decree of the lower Court except perhaps in the matter of costs only...it is a decree of affirmance.

6. That view has certainly a great deal to be said for it but I find that in the following year in the case of Kamal Nath v. Bithal Das A.I.R. 1922 All. 89 one of the learned Judges who took part in that decision, took part in a decision which appears to me to be not consistent with some of the language which had already been used. That case was one where the plaintiff claimed a large sum on the basis of a mortgage. The main dispute was as to the validity of the mortgage. The Court of first instance decreed the plaintiff's claim on the mortgage in full. On appeal to the High Court that Court affirmed the decision of the trial Court about the factum and validity of the mortgage. It, however, reduced the rate of interest awarded against the appellant thus modifying the decree of the Court of first instance to the extent of some Rs. 300. That, however, was a modification in his favour. It does not appear that the applicant there was desirous of going to the Privy Council in order to contend that the amount of interest ought to have been reduced to a greater extent than Rs. 300. He was desirous of going to the Privy Council upon the question of the factum and validity of the mortgage and the learned Judges took this view:

The modification of the decree was a modification in favour of the applicant, and as to this he certainly does not seek to appeal nor could he appeal. Therefore his application for leave to appeal relates in fact to the portion of the decree which was prejudicial to him, but which was a decree affirming the decision of the Court below and not modifying it. We have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council. In the present case the subject-matter of appeal to His Majesty in Council is, as pointed out above, that portion of the decree in respect of which the decree of this Court was a decree in affirmance of the decree of the Court below and not in modification of that decree. Therefore, in our opinion this is not a case in which the applicant is entitled as of right to appeal to His Majesty in Council.

7. The learned Judges go on to say that the case is distinguishable from the case of the previous year to which I have already referred and there can be no doubt that it was distinguishable, but this decision does not consist with some, of the observations made in the previous case.

8. Finally it is necessary to refer to the decision of the Judicial Committee of the Privy Council in the case of Annapurnabai v. Ruprao . In that case the junior widow and the person whom she said she had adopted as a son to her deceased husband applied for leave to appeal to the Privy Council. The position was that the person claiming to have been adopted by the senior widow brought a suit claiming the property. The Court decided in favour of the plaintiff on the question of adoption, but the junior widow claimed Rs. 3,000 per annum as widow's maintenance. The first Court gave her Rs. 800 per annum; the appellate Court increased that figure to Rs. 1,200 per annum, but in all other respects affirmed the decree of the first Court so that on the question whether or not the maintenance should be Rs. 3,000, Rs. 1,200, Rs. 800 or something else the two Courts were at variance. It was proposed to appeal to the Privy Council on the question of the amount of maintenance. That indeed was the only matter of substance in the appeal. The High Court, however, treated the case as one where the two Courts in India had been in agreement and refused leave to appeal. The Privy Council appears to have been clearly of opinion that that was not so and it does seem to me, therefore, that the particular application made in Sree Nath Boy's case [1904] 8 C.W.N. 294 of the principle that you have to have regard to the subject-matter of dispute in appeal to the Privy Council must be taken as overruled.

9. The question is whether, on the strength of the only case before the Privy Council which we have for our guidance, the views hitherto adopted in this and other High Courts require to be further considered. The question is whether the judgment of their Lordships means that in every case where the decree of the High Court is not a mare decree dismissing the appeal or a mere decree affirming the order of the Court below in the case, the necessity for showing a substantial question of law is done away with. It appears to me that the case of Annapurnabai v. Ruprao is not in itself a sufficient authority to justify this Court in abandoning the principle which it has with other High Courts acted upon; that is to say, I do not think that it shows that it is an erroneous view that we have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council. I have, I confess, some doubt as to whether in the end even that principle would be found to be in accordance with the construction to be put upon Section 110, but this Court and other High Courts have for many years acted upon that principle and I am not prepared to accept the case of Annapurnabai v. Ruprao as going further than this that where there is a dispute as to the amount of the decree or as to the amount of damages the reasoning of Sree Nath Boy's case [1904] 8 C.W.N. 294 is not a correct application of that principle. We may take it, I think, that where the amount is a question in dispute, the fact that the Courts 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 has succeeded and succeeded altogether so that he has no further grievance in that matter, he can without showing a substantial question of law have a right to litigate upon other points upon which both the Courts have been in agreement.

10. I think, therefore, that this application for a certificate should be refused.

11. The application is dismissed with costs, hearing-fee six gold mohurs to be divided equally between the three sets of Opposite Parties who have appeared.

C.C. Ghose, J.

12. I agree.

Narendra Lal Das Chaudhury v. Gopendra Lal Das Chaudhury

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

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Narendra Lal Das Chaudhury v. Gopendra Lal Das Chaudhury

Comments