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Case Number

C.M.P No. 1064 of 1945.

Advocates

Mr. K.P Ramakrishna Ayyar for Petrs.
Messrs. S. Amudachari and K.R Krishnaswami Ayyar for Mr. S. Panchapagesa Sastri for Respts.

Judges

Leach, C.J
Lakshmana Rao
Rajamannar, JJ.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioners (who had been the second, third and fourth defendants in the suit) applied for a certificate permitting an appeal to His Majesty in Council. The plaintiff (first respondent) sued for a declaration that eleven scheduled items of property belonged to the estate of Sundaram Ayyar (deceased 14 September 1937) and that a deed of settlement executed by Sundaram Ayyar's mother on 3 November 1938 in respect of these properties was void. The plaintiff claimed, as reversioner, entitlement to all eleven properties.

The trial Court declared the plaintiff entitled to six of the eleven items and dismissed his claim as to the remaining five. The petitioners appealed to this Court contending that the trial Court erred in granting the declarations as to the six items. The plaintiff filed a memorandum of cross objections claiming that the Subordinate Judge should have declared him entitled to four of the remaining five items. This Court dismissed the petitioners' appeal but allowed the plaintiff’s memorandum of cross objections: in consequence ten items were ultimately awarded to the plaintiff (the six affirmed from trial plus four added on cross objections).

In the trial Court the total stated value of the eleven properties was Rs. 31,304. The six properties initially decreed in the trial Court were valued at Rs. 21,214. The four items referred to in the memorandum of cross objections were valued at Rs. 9,190. The plaintiff opposed the petitioners' application for a certificate. There was a conflict of authority in this Court on whether, in circumstances such as these, a right of appeal (certificate) to the Privy Council exists; the application was heard by a Full Bench.

Legal Issues Presented

Whether the petitioners are entitled, as of right, to a certificate to appeal to His Majesty in Council under the relevant provisions of the Code of Civil Procedure where the appellate Court's decree varied the decree of the trial Court in respect of certain items of the subject-matter.
Whether the value requirement under the Code of Civil Procedure is satisfied for the purposes of obtaining such a certificate when some findings were concurrent (i.e., the petitioner challenges the decree as to ten items awarded to the plaintiff, though only four additional items were awarded by the appellate Court) and the valuations of the relevant items are as stated in the record.

Arguments of the Parties

Petitioners' Arguments (Appellants)

The monetary value of the four items added by this Court on the plaintiff's memorandum of cross objections is immaterial for the present purpose because the subject-matter of the proposed appeal to the Privy Council will be the ten items of property in respect of which the plaintiff succeeded before this Court (the six originally awarded plus the four added on cross objections), and the aggregate value of those ten items has been, at all material times, well in excess of Rs. 10,000.
Because this Court's decree varied (and did not merely affirm) the decree of the trial Court in respect of four items, the petitioners are entitled as of right to the certificate, subject to meeting the Code's value requirements.

Plaintiff's Arguments (Respondent)

The plaintiff contends that with regard to six of the properties there were concurrent findings between the trial Court and this Court; consequently the petitioners can only appeal with respect to the four items awarded by this Court on cross objections, and those four items alone do not meet the value threshold required by the Code of Civil Procedure.
Because there is no substantial question of law in respect of the concurrent findings, the plaintiff argues the petitioners' right to appeal should be restricted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Annapurnabai v. Ruprao (1924) L.R. 51 I.A. 319 : I.L.R. 51 Cal. 969 (P.C.)	The Judicial Committee held that where an appellate Court's decree varies the decree passed by the trial Court, the affected party is entitled, as of right, to a certificate to appeal to the Privy Council, subject to the Code's value requirements; the Board limited leave to the points not accepted by the appellant where concurrent findings were not contested.	The Court regarded this as an authoritative pronouncement supporting the petitioners' entitlement to a certificate where the appellate decree varied the trial Court's decree.
Shanmuga Sundara (Shunmuga Sunday a) Mudaliar v. Ratnavelu Mudaliar (1928) 56 M.L.J. 476 : I.L.R. 52 Mad. 521	Held that where the subject-matter of the appeal and the memorandum of cross objections is the same (a single subject-matter), the appellate Court's decree should not be treated as embodying two distinct decrees; consequently the decree was a variation and not an affirmation for s.110 purposes.	The Court treated this decision as supportive of the petitioners' claim to a certificate and relied on its reasoning to reject authorities that separated appeal and cross-objections into distinct decrees.
Perichiappa Chettiar v. Nachiappan (1930) 35 L.W. 206	Where the appellate Court's decree varied the trial Court's decree (to the prejudice of the appellant) and the subject-matter of both the trial and proposed appeal exceeded Rs. 10,000, the party was entitled to a certificate to appeal to the Privy Council.	The Court cited this case as a further authority supporting the petitioners' entitlement to a certificate on the facts before it.
Ramanathan Chetti v. Subramanian Chetti (1926) 51 M.L.J. 295	Held that where the appellate Court's decree affirmed the trial Court in respect of the defendant's appeal, and a memorandum of objections effectively acted as a cross-appeal, no leave to appeal could be granted in respect of the affirmed portion.	The Full Bench concluded that this earlier decision conflicted with later decisions of the same Judges and was wrongly decided; the Court held that Ramanathan Chetti had erred in treating appeal and memorandum of objections as embodying two separate decrees and therefore considered it wrongly decided in the circumstances of the present case.
Venkitaswami v. Sekkutti (1936) 71 M.L.J. 580 : I.L.R. 1937 Mad. 121	On its facts the appellate Court's decree was one of affirmance in respect of a particular defendant; the Court held the plaintiff was not entitled to a certificate in respect of that defendant because the appellate decree affirmed the trial Court in that respect. The judgment drew a distinction between a "decree or final order" and the "subject-matter" language in the statute.	The Full Bench accepted the correctness of this decision on its peculiar facts and treated it as materially distinguishable from the present matter; it did not seek to overrule Venkitaswami on those facts.
Velayya v. H.R.E. Board, Madras (1938) 1 M.L.J. 487	Addressed issues similar to Venkitaswami and did not go beyond its propositions.	The Court observed that this decision aligned with Venkitaswami and therefore no separate detailed discussion was necessary.
Chockalingam Chetti v. Official Assignee, Madras (1940) 2 M.L.J. 645	Also did not add to the principles in Venkitaswami and was treated as following that decision.	The Court noted that this authority did not go beyond Venkitaswami and thus required no detailed consideration for present purposes.

Court's Reasoning and Analysis

The Court began from the statutory framework governing appeals to the Privy Council, as reflected in the provisions invoked in the record (discussed under the Code of Civil Procedure). It summarized the general rule: where the case fulfils the Code's value requirements, a party has a right of appeal if the appellate Court's decree varies the decree of the trial Court; by contrast, where the appellate Court affirms the decision of the Court below, an appeal lies only where a substantial question of law is involved. In the present case it was admitted that no substantial question of law arose, but it was conceded that this Court's decree did vary the trial Court's decree by awarding four additional items to the plaintiff.

The Court then reviewed the authorities in conflict. It placed heavy reliance on the Judicial Committee's decision in Annapurnabai v. Ruprao, which affirmed that a variance between appellate and trial decrees gives a right to a certificate (subject to value). It found Shanmuga Sundara Mudaliar v. Ratnavelu Mudaliar and Perichiappa Chettiar v. Nachiappan to be consistent with that principle: both treated the appeal and the cross objections as concerning the same subject-matter and as producing a single decretal outcome that amounted to a variation rather than an affirmation of the trial Court's decree.

The Court examined Ramanathan Chetti v. Subramanian Chetti, which had reached a contrary result, and concluded that it conflicted with the later reasoning of the same Judges in Shanmuga Sundara Mudaliar. The Full Bench determined that Ramanathan Chetti wrongly separated the appeal from the memorandum of objections and treated the orders as embodying two separate decrees; on that basis the Court held Ramanathan Chetti to have been wrongly decided in circumstances like those before this Court.

The Court considered Venkitaswami v. Sekkutti and related decisions (Velayya and Chockalingam Chetti). It accepted that Venkitaswami was correctly decided on its own peculiar facts — there the appellate decree affirmed the trial Court as to a particular defendant, and the plaintiff's attempt to obtain leave related only to that affirmed portion. The Full Bench distinguished that situation from the present case, noting that in the present matter the appellate decree varied the trial Court's decree in respect of four items.

Applying these principles to the facts before it, the Full Bench concluded that because this Court's decree varied (and did not merely affirm) the trial Court's decree in respect of four of the items, the petitioners were entitled, as of right and subject to the statutory value criterion, to the certificate sought. The Court noted the aggregate subject-matter the petitioners sought to challenge in the Privy Council (ten items awarded to the plaintiff) and observed that the valuation figures in the record met the statutory threshold for an appeal to His Majesty in Council.

Finally, the Court recorded that the proposed appeal did not involve any question of interpretation of the Constitution Act or any Order in Council passed thereunder.

Holding and Implications

HOLDING: The Full Bench held that the petitioners are entitled under the provisions of section 110 of the Code of Civil Procedure to the certificate they sought. The Court ordered that such a certificate (permit to appeal to His Majesty in Council) be issued.

Implications:

Direct effect: A certificate permitting the petitioners to appeal to His Majesty in Council will issue, enabling them to challenge in the Privy Council the validity of the plaintiff's claim in respect of the ten items of property awarded to the plaintiff by this Court.
Precedential observations: The Full Bench relied on Annapurnabai and subsequent Madras decisions (including Shanmuga Sundara Mudaliar and Perichiappa Chettiar) to support the proposition that where the appellate decree varies the trial Court's decree, a certificate is available as of right (subject to value). It expressly found that Ramanathan Chetti v. Subramanian Chetti was wrongly decided for circumstances like those before the Court, while treating Venkitaswami v. Sekkutti and related decisions as correctly decided on their own facts and distinguishable from the present matter.
No constitutional question: The Court found that the proposed appeal does not raise any question of interpretation of the Constitution Act or related Orders in Council.

End of summary based exclusively on the text of the provided opinion.

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Gangadara Ayyar And Others v. Subramania Sastrigal And Others.

1. The petitioners seek a certificate permitting an appeal to His Majesty in Council. They were the second, third and fourth defendants in the suit. The plaintiff (the first respondent) sued for a declaration that the eleven items of property described in the schedules annexed to his plaint belonged to the the estate of one Sundaram Ayyar, who died on the 14th September, 1937 and that a deed of settlement executed by Sundaram Ayyar's mother on the 3rd November, 1938 in respect of these properties was void. The plaintiff was the reversioner to the estate and he claimed to be entitled to all the properties. The trial Court gave him a declaration in respect of six of the eleven items of property but dismissed the rest of the claim. The petitioners appealed to this Court on the ground that the trial Court had erred in giving the plaintiff a declaration in respect of the six items. The plaintiff filed a memorandum of cross objections in which he said that the Subordinate Judge should have declared him to be entitled to four of the remaining five items. The appeal was dismissed, but the memorandum of cross objections was allowed. The petitioners wish to appeal to the Privy Council in respect of all the ten properties awarded to the plaintiff. In the trial Court the total value of the eleven properties in suit was stated to be Rs. Rs. 31,304. The value of the six properties in respect of which the Subordinate Judge gave the plaintiff a decree was Rs. 21,214. The value of the four properties referred to in the memorandum of cross objections was Rs. 9,190.

2. The application is opposed by the plaintiff. He says that as there were concurrent findings so far as six of the properties are concerned, the petitioners can only appeal with regard to the four items awarded to the plaintiff by this Court on appeal and that they in themselves do not fulfil the requirements of the Code of Civil Procedure with regard to value. The petitioners say that the value of the four items is immaterial, because the subject matter of the proposed appeal will be the ten items of property in respect of which the plaintiff has succeeded and their value is and has been at all material times far in excess of Rs. 10,000. The application has been placed before a Full Bench because there is a conflict of authority in this Court on the question whether there is a right of appeal in circumstances such as we have here.

3. Appeals to the Privy Council are governed by the provisions of Sections 109 and no of the Code of Civil Procedure. Where the case fulfils the requirements of the Code with regard to value, a party has a right of appeal if the decree of the appellate Court varies the decree of the trial Court. Where the appellate Court affirms the decision of the Court below, an appeal lies only when it involves some substantial question of law. In this case it is admitted that there is no substantial question of law. Undoubtedly the decree of this Court varied the decree of the trial Court in an important respect, because it gave four more items of property to the plaintiff.

4. Before turning to the decisions of this Court which have been quoted in argument, it is necessary to refer to the judgment of the Judicial Committee in Annapurnabai v. Ruprao (1924) L.R. 51 I.A. 319 : I.L.R. 51 Cal. 969 (P.C.) as it is referred to in many of the reported cases. There the plaintiff claimed to be entitled as an adopted son to property valued at more than Rs. 10,000. One of the defendants, the widow of the alleged adoptive father, denied the adoption and claimed to be entitled to Rs. 3000 per annum by way of maintenance. The trial Court held that the plaintiff had substantiated his plea of adoption and gave the widow maintenance at the rate of Rs. 800 per annum, which was charged upon the estate. On appeal by her the decree of the trial Court in so far as it concerned the adoption was cofirmed, but the rate of maintenance was varied. Instead of Rs. 800 per annum the widow was awarded Rs. 1,200 per annum. She and a defendant who had also claimed, but unsuccessfully, to be an adopted son wished to appeal to His Majesty in Council. The appellate Court refused leave and the petitioners applied to the Judicial Committee for special leave, at the same time intimating that they did not propose to question the concurrent findings that the plaintiff was the adopted son. Their Lordships granted the petitioners special leave. In delivering the judgment of the Board, Lord Dunedin said that the contention of their counsel that they were entitled to leave by virtue of the ?provisions of section no of the Code was correct. They had a right of appeal. Lord Dunedin added that the petitioners' chance of success was not material to their application. As the petitioners accepted the finding with regard to the plaintiff's adoption, the special leave given was limited to the question of maintenance. There is here a pronouncement of the Judicial Committee that where there is a variance of the decree passed by the trial Court, the party affected thereby is entitled as of right to a certificate subject, of course, to the requirements of the Code being fulfilled with regard to value.

5. There are two decisions of this Court which support the petitioners' application for leave to appeal. They are Shunmuga Sunday a Mudaliar v. Ratnavelu Mudaliar (1928) 56 M.L.J. 476 : I.L.R. 52 Mad. 521, and Perichiappa Chettiar v. Nachiappan (1930) 35 L.W. 206. In the former case the plaintiff sued for a general account against a trustee alleging specific instances of malversation. The trial Court held that only two of the eight charges had been proved. The value of the account was stated to be Rs. 14,4.58. The two charges in respect of which the plaintiff succeeded represented Rs. 7000. The defendants appealed in respect of the two charges which had been proved and the plaintiff filed a memorandum of cross objections relating to the other six charges. This Court dismissed the suit in its entirety on the ground that accounts had been rendered and had been suppressed and, therefore, it did not consider the appeal or the memorandum of objections in detail. The plaintiff applied for leave to appeal to the Privy Council. The application was opposed on the ground that the case did not fulfil the requirements of the Code with regard to value, because the appellate decree had in effect confirmed the trial Court's decree with regard to two of the charges and the remaining six charges represented less than Rs. 10,000. Phillips and Odgers, JJ., held that the subject matter of both the appeal and the memorandum of cross objections was the same, namely, the liability to account, and the decree of the High Court could not be construed as embodying two distinct decrees. There was a single decree in respect of a single subject matter and it did not affirm the decree of the first Court within the meaning of section no of the Code of Civil Procedure.

6. In Perichiappa Chettiar v. Nachiappan (1930) 35 L.W. 206, a similar decisin was given by Reilly and Ananthakrishna Aiyar, JJ. That was a suit for accounts against an agent. The plaintiff valued his relief at Rs. 40,000. The trial Court gave him a decree for Rs. 5,682. The defendant appealed to the High Court and the plaintiff preferred a memorandum of cross objections, claiming a decree for a further sum of Rs. 20,000. This Court allowed the defendant's appeal in part and reduced the amount decreed by the trial Court by some Rs. 4,000. It allowed the memorandum of cross objections to the extent of only Rs. 150. On an application by the plaintiff for leave to appeal to His Majesty in Council it was held that this Court's decree had varied the decree of the trial Court to his prejudice and as the subject-matter of the suit in the trial Court and in the appeal to the Privy Council was upwards of Rs. 10,000, he was entitled to a certificate.

7. The decisions of this Court which are relied upon by the other side are those given in Ramanathan Chetti v. Subramanian Chetti (1926) 51 M.L.J. 295, Venkitaswami v. Sekkutti (1936) 71 M.L.J. 580 : I.L.R. 1937 Mad. 121, Velayya v. H.R.E. Board, Madras (1938) 1 M.L.J. 487, and Chockalingam Chetti v. Official Assignee, Madras (1940) 2 M.L.J. 645.

8. Ramanathan Chetti v. Subramanian Chetti (1926) 51 M.L.J. 295, was also decided by Phillips and Odgers, JJ., but two years before they decided Shanmuga Sundara Mudaliar v. Ratnavelu Mudaliar (1928) 56 M.L.J. 476 : I.L.R. 52 Mad. 521. In Ramanathan Chetti v. Subramanian Chetti (1926) 51 M.L.J. 295 the appeal was dismissed in its entirety, but a memorandum of objections filed by the respondent was allowed to the extent of Rs. 300. The appeal involved a pure question of fact. It was held that the memorandum of objections was in effect a cross appeal and as the decree of this Court affirmed the decree of the trial Court in so far as the defendant's appeal was concerned, no leave to appeal could be granted. In the first place, this judgment is in conflict with the judgment of the same learned Judges in Shanmuga Sundara Mudaliar v. Ratnavelu Mudaliar (1928) 56 M.L.J. 476 : I.L.R. 52 Mad. 521. In the second place, we consider that they erred in separating the appeal from the memorandum of objections and treating the orders of this Court thereon as embodying two separate decrees. Only one decree was drawn up and it certainly varied the decree of the trial Court. In these circumstances the appellant was entitled to a certificate granting leave to appeal and we must hold that that case was wrongly decided.

9. When the facts are appreciated, Venkitaswami v. Sekkutti (1936) 71 M.L.J. 580 : I.L.R. 1937 Mad. 121, is not really in point. The facts are these. A mortgagee brought a suit on a mortgage bond which had been executed by the first and fourth defendants, the first defendant being a son and the fourth defendant the widow of a deceased Hindu. The second defendant was the brother of the first defendant and the third defendant was the son of the first defendant. The trial Court gave a decree against the first and fourth defendants for the full amount claimed, but held that the second and third defendants were liable only for a small part of the debt. The plaintiff appealed to this Court, which affirmed the trial Court's decree in so far as it affected defendants 1, 2 and 4, but reversed it in so far as the third defendant was concerned. It was held that he was liable for almost the full amount claimed. The plaintiff applied for leave to appeal against the second defendant. It was held by Venkatasubba Rao and Cornish, JJ., that he was not entitled to a certificate because this Court's decree in respect of the second defendant was one of affirmance. A distinction was drawn between the words " decree or final order " in Clause (3) of section no and the term " the subject-matter" mentioned in Clause (1). There all that the plaintiff was wanting to do was to challenge in the Privy Council the finding that the second defendant was only liable for a small portion of the decree. The appellate decree had certainly affirmed the trial Court's decree so far as the second defendant was concerned and the application for leave did not travel beyond him. Although we do not accept all the observations made in the judgment, we see no reason to question the correctness of the decision on the peculiar facts of the case.

10. The decisions in Velayya v. H.R.E. Board, Madras (1938) 1 M.L.J. 487, and Chockalingam Chetti v. Official Assignee, Madras (1940) 2 M.L.J. 645 do not go beyond Venkitaswami v. Sekkutti (1936) 71 M.L.J. 580 : I.L.R. 1937 Mad. 121 and therefore it is not necessary to discuss them in detail.

11. In our judgment the petitioners are entitled under the provisions of section 110 to the certificate asked for by them. As we have indicated, they wish to challenge in the appeal to the Privy Council the validity of the plaintiff's claim with regard to ten of the eleven items of property and this Court's decree varied the decree of the trial Court in respect of four of the items. This being a decree of variation and not of affirmance, the petitioners are entitled as of right to a certificate and one will issue.

12. The proposed appeal does not involve any question of interpretation of the Constitution Act or any Order in Council passed thereunder.

Gangadara Ayyar And Others v. Subramania Sastrigal And Others.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (Appellants)

Plaintiff's Arguments (Respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gangadara Ayyar And Others v. Subramania Sastrigal And Others.

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