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  • Wort
  • A.C.J
  • Dhavle, J.
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Smart Summary

Summary of Opinion: Application for Certificate to Appeal to His Majesty in Council

Factual and Procedural Background

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 was the defendant in an action in which the plaintiff claimed possession of certain property.

There was a contract of sale by the plaintiff to the defendant under which the defendant paid Rs. 75 as earnest money and a further payment by him of Rs. 3,000. The plaintiff contended that after execution the defendant tampered with the sale-deed, interpolating or changing certain pages and thereby converting what the plaintiff described as a conditional sale into an absolute sale. The conditional sale, as explained by Agarwala, J., meant that title would not pass until the defendant paid the whole of the consideration. It was undisputed that the defendant had not paid the balance within the stipulated time.

The trial Judge held that title had not passed and that the plaintiff was entitled to recover possession; the trial Judge also held that the defendant had forfeited the Rs. 3,000. On appeal to this Court, the judgment of the trial Court was affirmed as to the main question (the passing of title/possession) but reversed on the point of forfeiture, holding that the Rs. 3,000 was not forfeited.

Legal Issues Presented

  1. Whether this Court should grant a certificate that the case is fit to be taken on appeal to His Majesty in Council.
  2. Whether the judgment of this Court is a judgment of affirmance such that the applicant must show a "substantial question of law" within the meaning of Section 110 of the Civil Procedure Code (CPC) to obtain leave to appeal.
  3. Whether, on the facts found (including a finding of tampering and that the sale was conditional), any substantial question of law arises from the decision that title did not pass because the balance was unpaid.

Arguments of the Parties

Applicant's Arguments (the defendant seeking certificate)

  • The applicant contended that the judgment of this Court was not a judgment of affirmance because the High Court (this Court) had varied the trial Court's decree by holding that the sum (referred to in parts of the opinion as Rs. 3,000 and in another passage as Rs. 3,400) was not forfeited.
  • On that basis the applicant sought leave to appeal to His Majesty in Council, implying that there remained matters on which he could benefit by further appeal.

Plaintiff's Contentions (as presented at trial and recited by the Court)

  • The plaintiff's case was that the defendant had tampered with the sale-deed and by interpolation/changes converted a conditional sale into an absolute sale.
  • By the plaintiff's description, a conditional sale meant that title would not pass until the whole consideration had been paid; because the balance was unpaid, title had not passed and the plaintiff was entitled to recover possession.
  • At trial the plaintiff prevailed on possession and the trial Judge additionally held that the defendant had forfeited the Rs. 3,000 (though this finding was reversed on appeal to this Court).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
51 IA 319 (Annapurnabai's Case) Example where the Privy Council gave special leave limited to a particular question (maintenance); principle that where appellate court modifies the original decree completely in applicant's favour on one point leaving him without grievance on that point, he cannot appeal on other points on which courts concur without showing a substantial question of law. The Court treated this as the leading case and relied on its reasoning (as explained and applied by Indian High Courts) to hold that modification in favour of the applicant on a single point does not entitle him to appeal on other points unless a substantial question of law is shown.
38 CWN 1174 (Calcutta High Court decision discussing 51 IA 319) Adopted the principle from 51 IA 319 and observed that Courts in India have followed the principle that a complete modification in the applicant's favour on a single point removes grievance on that point and so an appeal on other concurred points requires a substantial question of law. The Court expressly adopted the view taken by the learned Judges of the Calcutta High Court in relation to the present case and followed that principle in dismissing the application.
31 CWN 572 (Rankin, C.J. and Ghose, J.) In construing Section 110 CPC, one must look at the substance—the subject-matter of the proposed appeal—to determine whether the decision is one of affirmance. The Court considered this decision to be the one that came nearest to the present matter; it relied on the approach that regard must be had to the substance of the appellate decision in deciding whether it is an affirmance.
8 CWN 294 Referenced in 31 CWN 572; used in comparative discussion of construction of Section 110 CPC. Mentioned by the Court as part of the chain of authorities considered when construing Section 110; the Court noted the references but distinguished facts as necessary.
144 IC 320 A case relied upon by the learned Advocate; it differed on the facts because there remained a substantial point from which the appellant might benefit (mortgage vs money decree). The Court noted the reliance but held the cited case was distinguishable on its facts and therefore not controlling here.
11 PLT 727 Another case where the trial Court's decree was modified on appeal (allowing plaintiff's cross-appeal) and discussed in context of whether such modification yields a right to further appeal without a substantial question of law. The Court observed that this decision was distinguishable on its facts and therefore not determinative of the question before the Court.
Narendra Lal's case (as cited) Illustrates a situation where the only modification by the appellate court was in favour of the applicant and of such a character as to leave the applicant without further grievance on that particular matter. The Court referred to it as supporting the conclusion that where the appellate modification completely removes grievance on that issue, further appeal on other concurred points requires showing a substantial question of law.

Court's Reasoning and Analysis

The Court proceeded in a step-by-step fashion:

  1. Identified the nature of the application: a request for a certificate that the case is fit for appeal to His Majesty in Council.
  2. Reviewed the operative facts and the judgments below: the trial Court found no passing of title (conditional sale where balance unpaid) and also found forfeiture of Rs. 3,000; this Court affirmed the finding on title/possession but reversed the forfeiture finding, holding the Rs. 3,000 was not forfeited.
  3. Framed the pivotal legal question: whether the judgment of this Court amounted to a judgment of affirmance. If it did, the applicant would need to show the existence of a "substantial question of law" within Section 110 CPC to obtain leave to appeal.
  4. Analyzed the nature of the disputed issues and concluded that the primary controversy (passing of title) was a question of fact. The finding that the sale-deed had been tampered with and that the transaction was a conditional sale meant, on the facts found, that title did not pass because the balance remained unpaid.
  5. Examined precedent (including the Privy Council decision in 51 IA 319 and subsequent Indian High Court authorities) and accepted the principle that when an appellate court modifies the trial Court's decree on a single point in favour of the applicant so that there is no grievance remaining on that point, the applicant cannot, by reason of that modification alone, obtain a right of appeal on other points on which both courts concur unless the applicant shows a substantial question of law.
  6. Considered other cited authorities (31 CWN 572, 144 IC 320, 11 PLT 727, Narendra Lal's case) and distinguished them on the facts where appropriate. The Court concluded that on the facts at bar the decisions relied upon by the applicant either did not displace the established principle or were factually distinguishable.
  7. Applied the established principle to the present case and found that this Court's decision was in substance a judgment of affirmance as to the principal factual question (passing of title). Because the applicant failed to demonstrate any substantial question of law arising from that affirmance, the application for leave to appeal was denied.
  8. Concluded with an order dismissing the application and assessing costs (hearing fee of five gold mohurs).

Concurrence: Dhavle, J. expressly agreed, reiterating that both Courts were in agreement that title did not pass and that the decree was one of affirmance; the only matter in which the applicant obtained relief was the (reversed) forfeiture finding, leaving him no further grievance on that point.

Holding and Implications

APPLICATION DISMISSED.

Holding (direct effect on parties): The application for a certificate to appeal to His Majesty in Council was dismissed. The Court held that its judgment was, in substance, a judgment of affirmance on the principal factual question (passing of title), and the applicant failed to show any substantial question of law within Section 110 CPC. The applicant therefore was not entitled to the certificate and no leave to appeal was granted. The hearing fee was assessed at five gold mohurs and costs were ordered.

Implications (as stated in the opinion): The decision operates to deny the applicant the right to appeal to His Majesty in Council in the absence of a substantial question of law. The opinion does not pronounce the setting of any new legal principle beyond applying established authorities to the facts; the Court adopted the view of the Calcutta High Court and the Privy Council authorities as to when an appellate modification in favour of the applicant removes the basis for further appeal on other points.

This summary is confined strictly to matters stated in the provided opinion and does not add or infer facts or law beyond what the opinion expressly contains.

Show full summary ...

    Mahabir Prasad v. Brij Mohan Prasad

    Wort, A.C.J:— 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 was the defendant in the action in which the plaintiff claimed possession of certain property in the following circumstances.

    2. There was a contract of sale by the plaintiff to the defendant under which the defendant had paid Rs. 75 as earnest money and there was a further payment by him of Rs. 3,000. The case of the plaintiff was that the defendant, after the plaintiff had executed the sale-deed, had tampered with it and interpolated or changed certain pages in the agreement and turned what was according to the plaintiff's description a conditional sale into an absolute sale. As Agarwala, J. pointed out in the course of his judgment what the plaintiff meant by conditional sale was that the title in the property should not pass until the defendant had paid the whole of the consideration. With regard to the fact that the defendant had not paid the whole of the consideration within the time stipulated, there appears to have been no dispute. In those circumstances the trial Judge held that title had not passed to the defendant and that the plaintiff was entitled to recover possession; but he held in addition that the defendant had forfeited the Rs. 3,000 which as I have stated, had been paid by him.

    3. On appeal to this Court the judgment of the trial Court was affirmed as regards the main question but reversed so far as the question of Rs. 3,000 and it was held that the Rs. 3,000 was not forfeited. It will be seen therefore that so far as that matter is concerned, the defendant has no grievance. The substantial question in this case is whether the judgment of this Court was a judgment of affirmance, if so it would be necessary for the applicant to show that there was some substantial question of law within the meaning of Section 110 of the CPC. Dealing with the latter question, it is clear that there is no substantial question of law. The question which was in dispute in this Court and in the trial Court was substantially a question of fact. Once having decided that the document, the sale deed, had been tampered with, that the document as originally drawn up and executed by the plaintiff was what the plaintiff was pleased to call a conditional sale, it necessarily followed that the property did not pass to the defendant in the circumstances of the case, the balance not having been paid. I fail to see any question of law at all and there being no substantial question of law, it remains therefore to consider whether this was a judgment of affirmance. The contention of the applicant necessarily is that it was not a judgment of affirmance as the High Court has varied the judgment or decree of the trial Court by holding that the sum of Rs. 3,000 was not forfeited.

    4. The leading case with regard to this matter is a case upon which many judgments of the High Courts in India are based: at least the case which has been discussed by many of the High Courts in India with regard to this question. It is the case in 51 IA 319(1), where their Lordships of the Privy Council gave special leave to appeal in these circumstances. The suit was a suit in which the plaintiff claimed certain property basing his claim on an adoption which was denied by the defendant. The defendant, a widow, claimed to be entitled to a sum of Rs. 3,000 per annum as maintenance. The trial Court as did the appellate High Court decided in favour of the plaintiff on the question of adoption. The trial Court however allowed the widow Rs. 800 per annum as maintenance instead of her claim for Rs. 3,000. This was varied by the High Court by increasing the maintenance allowance to Rs. 1,200 per annum. It will be seen therefore that the amount allowed was still short of the original claim which she had made. In those circumstances their Lordships of the Privy Council in a very short opinion gave special leave to appeal but limited the appeal to the question as to the maintenance allowance. The case in 51 IA 319 was discussed by the Caloutta High Court in 38 CWN 1174(2), in which the learned Judges made this observation, which I should like to adopt, “This Court” said the learned Judges, however has refused on the strength of Annapurnabai's Case to break away from a long course of decisions of Courts in India which firmly laid down the principle that when the appellate Court modifies the original decree upon a single point and that completely in the applicant's favour so that he has no further grievance in that matter, he cannot, because of that modification, have a right to an appeal on other points on which the Courts have concurred, without showing a substantial question of law.

    5. The learned Judges went on to say:

    The enormity of the opposite view is so very great that a far more clear and express pronouncement of the Judicial Committee would be necessary to uphold it.

    6. The learned Judges then later in their judgment referred to a decision of Rankin, C.J, and Ghose, J. in 31 CWN 572(3). The learned Chief Justice in the latter case referring to a previous case reported in 8 CWN 294(4) and to 51 IA 319, said that he did not think that the latter showed that it was an erroneous view; but in construing Section 110 of the CPC, what they had to look at was the substance and to see what was the subject matter of the appeal to His Majesty in Council. How there is no decision of this Court which is to the contrary effect. The learned Advocate relies upon a case in 144 IC 320(5), but as will be seen it differs from the case in hand as did the case before their Lordships of the Judicial Committee inasmuch as there was still a substantial point from which by way of appeal the appellant might benefit. It was a case on a mortgage in which the plaintiff had succeeded in the trial Court in getting a mortgage decree. That decree had been varied in the High Court by giving the plaintiff not a mortgage decree but a money decree for a less amount. Again in 11 PLT 727(6), the trial Court had granted a decree to the plaintiff in a mortgage suit but disallowed the plaintiff's claim for interest pendente lite. There was an appeal both by the defendant and a cross-appeal by the plaintiff. The High Court dismissed the defendant's appeal but allowed the plaintiff's cross-appeal, thus modifying the decree of the trial Court. That again is substantially on the same footing as the case before their Lordships of the Privy Council but from the facts which I have stated it is clear that the case is clearly different from the one before us. In my judgment I would adopt the view taken by the learned Judges of the Calcutta High Court with regard to this matter and would hold that this is in substance a judgment of affirmance and that therefore it is necessary for the petitioner to show that there is some substantial question of law. Upon that point, as I have already stated, he has failed, and in my opinion therefore the application for leave to appeal should be dismissed with costs. We assess the hearing fee at five gold mohurs.

    7. Dhavle, J.:— I agree. As regards the passing of title under the sale deed in question, both the Courts were in agreement and have held against the applicant for leave to appeal to His Majesty in Council. In the circumstances of the case that was a substantial finding of fact and the decree of this Court one of affirmance. The only other disputed matter in the case was the question of forfeiture of the sum of Rs. 3,400. The trial Court held that the plaintiff was entitled to keep the money. This Court on appeal held in favour of the applicant that the plaintiff was not entitled to keep the money. In respect of this sum of money the applicant can have no further grievance.

    8. He is anxious to appeal as regards the passing or non-passing of title under the sale deed; but that is a matter on which both the Courts have, as already stated, been in agreement. Many cases have been cited before us; but the one that comes nearest to the matter before us is 31 CWN 572. The decisions cited from this Court are clearly distinguishable on the facts, though there are undoubtedly observations in them that are in favour of the applicant. In the second of those decisions, I mean the one from 144 IC 320, no reference was made to 31 CWN 572 and in the other there was apparently an inclination to doubt the correctness of what was said by Rankin, C.J, in 31 CWN 572, but as I have already indicated, the decision in this case from 11 PLT 727, is easily distinguishable on the facts. In Narendra Lal's case, the only modification made by the Court of appeal was in favour of the applicant for leave to appeal to His Majesty in Council, and it was a modification of such a character as to leave the applicant without any further grievance so far as that particular matter was concerned. In these circumstances and after discussing the decision of the Privy Council in Annapurnabai's case, Rankin, C.J observed:

    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.

    9. In my opinion that really concludes the matter, though the decision in that case is not directly binding on us.

    D.S/R.K

    10. Application dismissed.

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    Comments

    Mahabir Prasad v. Brij Mohan Prasad
    (Apr 21, 1936)