# Rana Sheo Ambar Singh v. Allahabad Bank Ltd,, Allahabad Wanchoo ]. z96I April 27

- **Citation:** [1962] 2 S.C.R. 452
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rana-sheo-ambar-singh-v-allahabad-bank-ltd-allahabad-wanchoo-z96i-april-27-2266
- **Pages:** 22

## Headnote

Supreme Court, Appellate Jurisdiction of-Appeal from decree
affirming the decision of the court below-Decree of aj/irmance,
Meaning of-Test-Constitution of India, Art. 133(1).
The appellant brought a suit for the recovery of his moiety
share of the joint family properties against his father and alienees from the latter and his case was that the alienations made
by the father were not binding on his share of the properties.
The trial court dismissed the suit but the High Court on appeal
reversed the decision of the trial court in respect of some of the
properties, passed a preliminary decree for partition of those
properties and confirmed the rest of the decree of the trial court.
The appellant applied for a certificate under Art. 133(1) of the
Constitution but the High Court rejected the same holding that
the decree was one of affirmance and involved no substantial
2 S.C.R. SUPREME COURT REPORTS
453
question of Jaw, following a decision of the Full Bench of that
1961
Court in Chittam Subba Rao v. Vela Mankanni Chellamayya. The
case admittedly satisfied the test of valuation prescribed by
Tirumalach•lli
Art. l33(1)(a).
Raja.am
Held, that in construing the relevant clause of Art. 133(1)
.
v.
.
of the Constitution, which gives a constitutional right to the Tirumalachetto
litigant to appeal to this Court, it would be inappropriate to Radhakmhnayya
adopt a technical or pendantic approach an<!! the clause must be
Chetty
read as a whole and its material words given their plain grammatical meaning.
So construed, the correct test to determine whether an
appellate decree affirmed the decision of the court below would
be to compare the appellate decree, taken in its entirety, with
the. decision of the trial court taken as a whole. If on such comparison it was found to do so, it was a decree of affirmance; but
if it made a variation, whether for or against the appellant, it
would be a decree of variation, the extent of the variation being
wholly immaterial.
Chittam Subba Rao v. Vela Mankanni Chelamayya, I.L.R.
[1953] Mad. l, disapproved.
The words "appealed from" in the last part of Art. 133(1)
are not words of limitation, and they do not refer to a part of
the decree, that may be under appeal, but simply describe the
decree viewed as a whole. So also the word "decision" therein
means the decision of the trial court as a whole and not the
decision on any point falling for determination.
Rajah Tasadduq Rasul Khan v. Manik Chand, (1902) L.R. 30
I.A. 35, referred to.
Dhirendra Nath Sarkar v. Nischintapore Company, [1916] 36
LC. 398, held inapplicable.
The test in respect of value laid down by Art. r33(1)(a) is an
independent condition that cannot control the meaning of the
word 'decree' in the last part of Art. 133(1), which provides for
another additional and independent condition.
Raja Sree Nath Roy Bahadur v. The Secretary of State for India
in Council, (r904) 8 C.W.N. 294, Annapurnabai v. Ruprao, (1924)
L.R. 51 I.A. 319 and Narendra Lal Das Chaudhurv v. Gopendra
Lal Das Chaudhury, A.I.R. 1927 Cal. 543, considered.
Case-law reviewed.
While any variation of the order as to costs, which is in the
discretion of the Court under s. 35 of the Code of Civil Procedure, cannot change the character of the appellate decree which
is otherwise one of affirmance, variation of the order as to interest under s. 34 of the Code must affect its character. Any variation by concession or consent of parties or withdrawal of part of
the subject-matter of the decree cannot, however, affect its
character.
58
Tit'utnalachttli
RaJata»i.
v.
Tirumalachetti
Radhakrishnayya
Chetly
454
SUPREME COURT REPORTS
[1962]
CrvrL APPELLATE JURISDICTION:
Civil Appeal .J'l"o.
92 of 1961.
Appeal by special leave from the judgment and
decree dated ,January 9, 1958, of the Andhra Pradesh
High Court in Appeal No. 211 of 1949.
K. R. Ohoudhry. for the appellant.
T. V. R. Tatachari, for respondents Nos. z, 3 and 24
to 27.
R. Thiagarajan and P. Ram Reddy, for respondents
Nos. 4 to 7and17.

## Text

_Characters 0–39,720 of 50,336. This is a partial read: ask again with offset=39720 for what follows._

Rana Sheo
Ambar Singh
v.
Allahabad Bank
Ltd,, Allahabad
Wanchoo ].
z96I
April 27.
452
SUPREME COURT REPORTS
[1962)
This brings us to the question of limitation. Mr.
Aggarwala conceded that if the appellant succeeds on
the first' point it would not be necessary for us to consider the question of limitation. Therefore, as the
appellant. succeeds on the first point we need not
consider whether the application for execution by sale
of bhumidari rights created under s. 18 is barred by
limitation.
We therefore allow the appeal and direct that the
execution of the decree by the respondent will not be
levied against the bhumidari rights created in favour
of the appellant under s. 18 of the Act. The appellant
will get his costs of this court and of the High Court.
Costs of the execution court will be at the discretion of
that Court.
Appeal allowed.
TIRUMALACHETTI RAJARAM
v.
TIRUMALACHETTI RADHAKRISHNAYYA
CH ETTY
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. WANCHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Supreme Court, Appellate Jurisdiction of-Appeal from decree
affirming the decision of the court below-Decree of aj/irmance,
Meaning of-Test-Constitution of India, Art. 133(1).
The appellant brought a suit for the recovery of his moiety
share of the joint family properties against his father and alienees from the latter and his case was that the alienations made
by the father were not binding on his share of the properties.
The trial court dismissed the suit but the High Court on appeal
reversed the decision of the trial court in respect of some of the
properties, passed a preliminary decree for partition of those
properties and confirmed the rest of the decree of the trial court.
The appellant applied for a certificate under Art. 133(1) of the
Constitution but the High Court rejected the same holding that
the decree was one of affirmance and involved no substantial
2 S.C.R. SUPREME COURT REPORTS
453
question of Jaw, following a decision of the Full Bench of that
1961
Court in Chittam Subba Rao v. Vela Mankanni Chellamayya. The
case admittedly satisfied the test of valuation prescribed by
Tirumalach•lli
Art. l33(1)(a).
Raja.am
Held, that in construing the relevant clause of Art. 133(1)
.
v.
.
of the Constitution, which gives a constitutional right to the Tirumalachetto
litigant to appeal to this Court, it would be inappropriate to Radhakmhnayya
adopt a technical or pendantic approach an<!! the clause must be
Chetty
read as a whole and its material words given their plain grammatical meaning.
So construed, the correct test to determine whether an
appellate decree affirmed the decision of the court below would
be to compare the appellate decree, taken in its entirety, with
the. decision of the trial court taken as a whole. If on such comparison it was found to do so, it was a decree of affirmance; but
if it made a variation, whether for or against the appellant, it
would be a decree of variation, the extent of the variation being
wholly immaterial.
Chittam Subba Rao v. Vela Mankanni Chelamayya, I.L.R.
[1953] Mad. l, disapproved.
The words "appealed from" in the last part of Art. 133(1)
are not words of limitation, and they do not refer to a part of
the decree, that may be under appeal, but simply describe the
decree viewed as a whole. So also the word "decision" therein
means the decision of the trial court as a whole and not the
decision on any point falling for determination.
Rajah Tasadduq Rasul Khan v. Manik Chand, (1902) L.R. 30
I.A. 35, referred to.
Dhirendra Nath Sarkar v. Nischintapore Company, [1916] 36
LC. 398, held inapplicable.
The test in respect of value laid down by Art. r33(1)(a) is an
independent condition that cannot control the meaning of the
word 'decree' in the last part of Art. 133(1), which provides for
another additional and independent condition.
Raja Sree Nath Roy Bahadur v. The Secretary of State for India
in Council, (r904) 8 C.W.N. 294, Annapurnabai v. Ruprao, (1924)
L.R. 51 I.A. 319 and Narendra Lal Das Chaudhurv v. Gopendra
Lal Das Chaudhury, A.I.R. 1927 Cal. 543, considered.
Case-law reviewed.
While any variation of the order as to costs, which is in the
discretion of the Court under s. 35 of the Code of Civil Procedure, cannot change the character of the appellate decree which
is otherwise one of affirmance, variation of the order as to interest under s. 34 of the Code must affect its character. Any variation by concession or consent of parties or withdrawal of part of
the subject-matter of the decree cannot, however, affect its
character.
58
Tit'utnalachttli
RaJata»i.
v.
Tirumalachetti
Radhakrishnayya
Chetly
454
SUPREME COURT REPORTS
[1962]
CrvrL APPELLATE JURISDICTION:
Civil Appeal .J'l"o.
92 of 1961.
Appeal by special leave from the judgment and
decree dated ,January 9, 1958, of the Andhra Pradesh
High Court in Appeal No. 211 of 1949.
K. R. Ohoudhry. for the appellant.
T. V. R. Tatachari, for respondents Nos. z, 3 and 24
to 27.
R. Thiagarajan and P. Ram Reddy, for respondents
Nos. 4 to 7and17.
1961. April 27.
The Judgment of the Court was
delivered by
Gajendragadkar J.
GAJENDRAGADKAR, J.-If the appellate decree passed by the High Court makes a. variation in the decision of the trial Court under appeal in favour of a
party who intends to prefer an appeal against the said
appellate decree, can the said decree be said to affirm
the decision of the trial court or not under Art. 133(1)
of the Constitution? That is the short question which
arises for our decision in the present appeal.
The appellant Tirumalachetti Rajaram filed a suit
in f orma pauperis in the Court of the Subordinate
Judge, Chittoor, for his half share in the properties
which once belonged to the joint family consisting of
himself and his father and to this suit he impleaded
his father and several alienees from him. His case was
that the alienations effected by his father as well as
the sales held in execution proceedings against his
father were not binding on him and so his share in
the properties covered by the said alienations was not
affected by them. It is on this basis that he claimed
his half ehare in a.II the said properties. The trial
court rejected his contention that the alienations did
not bind him, upheld a.II the alienations and so dismissed his suit. On appeal the High Court of Madras
reversed the trial court's decree in respect of alienations which covered items 2, 10 a.nd 14 in Schedule A
as well as item 5 in Schedule B. It held that the
alienations in respect of these items did not bind the
appellant's share and so a preliminary decree for partition was passed in his favour in respect of the said
2 S.C.R. SUPREME COURT REPORTS
455
items. The rest of the decree passed by the trial
196'
court was confirmed. The appellant thP'l applied to Tirumatachetti
the High Court for a certificate under Art. 133(1) of
Rajaram
the Constitu' ion. This application was rejected on
v.
the ground that the decree sought to be appealed from
r;,umalachetti
was one of affirmance and there was no substantial Radhakrishnayya
question of law raised by the proposed appeal. In
Chetty
coming to this conclusion the High Court followed an Ga .,.a,"",;g-;,dka. J.
earlier E'ull Bench decision in Chittam Subba Rao v.
1
Vela Mankanni Chilamayya ('). The appellant then
applied for and obtained special leave from this Court,
and on his behalf it is urged that the view taken by
the Madras High Court in the case of Chittam Subba
Rao(') proceeds on a misconstruction of ·the relevant
clause in Art. 133(1). That is how the short question
which falls to be considered in the present appeal
relates to the construction of the said relevant clause
in Art. 133(1). It is common ground that the test of
valuation prescribed by Art. 133(l)(a) is satisfied in
this case.
Article 133(1) which corresponds to s. 110 of the
Code of Civil Procedure reads thus:
"133(1).
An appeal shall lie to the Supreme
Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of
India if the High Court certifies-
( a) that the amount or value of the subject matter
of the dispute in the court of first instance and still
in dispute on appeal was and is not less than twenty
thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or
(b) tha& 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
Supreme Court;
and, where the judgment, decree or final order
appealed from affirms the decision of the court immediately below in auy case other than a case referred to in sub-clause (c), if the High Court further certifies that the appeal involves some substantial
question of law."
(1) I.L.R. [1953] Mad. 1.
456
SUPREME COURT REPORTS
[1962]
'96'
In the present case we are concerned with the clause
Tirumalachetti "where the judgment, decree or final order appealed
Rajaram
from affirms the decision of the court immediately
v.
below in any case other than a case referred to in subTi•umalachetti clause (c)". It is common ground that if the appellate
Radhakrishnayya decree of the High Court makes a variation in the
Chetty
decision of the trial court against the intending appelGajendragadkar 1. Iant the appellate decree is not a decree of affirmance
but variation, and this position is not affected even if
the variation in question is to a very small extent and
may be of very minor significance. The decisions of the
High Courts, however, show a sharp conflict in regard
to the question as to the character of the appellate decree where it makes a variation in favour of the intend·
ing appellant.
Broadly stated the majority of the
High Courts have taken the view that an appellate
decree which makes a. variation in favour of the
intending appellant is a decree of affirmance and it is
only the Punjab High Court and the majority decision
of the Patna High Court which have taken a contrary
view. The decisions of different High Courts bearing on this point show that tho leamed Judges did not
always try so much to construe the terms of the relevant constitutional provision as to reconcile their earlier decisions which disclosed a different approach and
a tendency to reach different conclusions. Indeed, on
occasions some judgments have expresEed the hope
that the sharp conflict of judicial opinion resulting
from the difference in a pp roach adopted in dealing with
the problem can be effectively resolved only when this
Court considers the matter and makes its authoritative pronouncement.
Thus it would be clear that
though this important question lies within a narrow
compass it is not free from difficulty.
In dealing with this question we think the best
course to adopt would be to consider the problem of
construction without reference to the previous decisions on the point, and in construing the relevant
clause it is obviously necessary to bear in mind that
the clause under discussion deals with the constitutional right of the litigant to make an appeal to this
Conrt; and so it would be inappropriate to adopt a
2 S.C.R. SUPREME COURT REPORTS
457
technical or pedantic approach in interpreting the
'96I
material words used in the relevant clause. Reading
Tirumalachetti
the clause as a whole and giving the material words
Raiaram
their plain grammatical meaning it seems prima facie
v.
to show that the test of affirmance prescribed by the
Tirumal~chetti
clause can best be satisfied if we take the appellate Radhakiishnayya
decree in its entirety and enquire whether the said
Chetty
decree affirms the decision of the trial court considered Gajend-;;;;;.dkar J.
in its entirety. It is a matter of comparing the appellate decree with the decision of the trial court under
appeal. If the appellate decree affirms the decree of
the trial court it is a decree of affirmance; if there is
a variation made by the appellate decree in the decision of the trial court the appellate decree is not a
decree of affirmance and this position would not be
affected whether the variation is made in favour of
the intending appellant or against him and whether
the variation made is minor or major.
It is, however, urged that the words "judgment,
decree or final order appealed from" denote that part
of the judgment, decree or final order in appeal which
is intended to be challenged in the proposed appeal to
this Court. In other words, the word "decree", it is
suggested, refers to the part of the decree under
appeal. On this construction a decree has to be split
up into different parts and the words "appealed from"
have to be treated as words of limitation. The argument in a slightly different form has also been pressed
before us. It is suggested that in cases where different
causes of act.ion and different claims and reliefs have
been combined different decrees are in fact passed
though in form there may be one paper on which one
decree is drawn; and so it is argued that the decree
appealed from must mean the decree under appeal
dealing with the subject-matter or matter in dispute
proposed to be brought to this Court by the intending
appellant. For one thing this argument may not be
available where there is only one ca use of action, and
it is quite clear that the word "decree" must have one
meaning applicable to all cases.
Besides, in our
opinion, this construction on which the argument is
based is far too technical and artificial and cannot be
458
SUPREME COURT REPORTS
[1962]
z96z
regarded as reasonable. Normally, in each suit there
is one decree, and so it would be inconsistent with the
Tirumalachttti
Rajarain
scheme of the Code to divide the decree into several
v.
parts by i·eference to its relation to different claims or
T"u'!'alachetti subject-matters or to treat one single decree as conRadhakris!mayy• sisting in fact of several decrees. The normal, natural
c~tty
and reasonable construction to place on the first part
Gajendragadkar J. of the relevant clause is to hold that it refers not
merely to that part of the decree which is sought to
be challenged in the appeal but the entire decree from
which the appeal arises or the decree giving rise to
the appeal. On this construction the clause "appealed
from" is not a clause of limitation. It is merely a
descriptive clause and it describes the decree as one
from which the appeal arises. If that be so, in determining the character of the decree it would be necessary to take the decree as a whole and enquire whether
it is a decree of affirmance or not.
In support of the argument that there can be more
decrees than one in a suit which combines different
causes of action and different claims made against
different defendants in respect of different subjectmatters Mr. Tatachari, for the respondent, has relied
on the decision of the Calcutta High Court in Dhirendra
Nath Sarkar v. Nischintapore Company (1).
In that
case the Court was dealing with a decree which was
made in favour of the plaintiffs for the recovery of
arrears of rent in respect of three tenancies held by
three different tenants and the question raised was
one of limitation under Art. 182, cl. (5) of the Limitation Act (IX of 1908). The court held that although
the decree was passed in one suit and was set out on
one sheet of paper the position was precisely the same
as if the plaintiffs had brought three distinct suits
against the defendants and had obtained three different
decrees. It appears that the decree-holder's claim for
execution was in time in respect of one of the tenants
but not in respect of the two others; but he urged that
since the decree was one it was not open to the two
other tenants to plead limitation by splitting up the
decree into three different decrees and by seeking w
(1) [1916) 36 I. C. 398; 22 C.W.N. 192.
2 S.C.R. SUPREME COURT REPORTS
459
.
invoke the provisions of art. 182, cl. (5) severally as
I961
against each one of the said decrees. This argument
was rejected and' it was held that under explanation (1)
Tirumalachetti
Ra}al'am
to art. 182 the decree-holder's application for execut.ion
v.
was barred by limitation in respect of the said two
Titumalachetti
tenancies. It would thus be clear that the discussion lladhakri>hnaJ'y•
about the character of the decree and the conclusion
Chetty
that though in form there was one decree in fact and c . d --dk 1
law the decrees were three are based on the provisions '"J"' ••ga ar ·
of explanation (l) and so must be confined to the said
explanation. Explanation (1) provides that where the
decree or order bas been passed severally in favour of
more persons than one distinguishing portions of the
subject-matter as payable or deliverable to each, the
application mentioned in cl. (5) of art. 182 shall take
effect in favour only of such of the said persons or
their representatives as it may be made by. But
where the decree or order has been passed jointly in
favour of more persons than one, such application, if
made by any one or more of them, or by his or their
representative, shall take effect m favour of them all.
The facts in the case of Dhirendra Nath Sarkar (1)
were converse of the case contemplated by the first
part of explanation (1), and so the principle laid down
by the said part of explanation (1) was applied and it
was held that in respect of the two tenancies the
decree-holder's application for execution was barred
by art. 182, cl. (5). It would be idle to contend that
considerations which are relevant and material under
explanation (1) are of such a general application as to
support the plea that in a suit where different causes
of action are included and different reliefs are claimed
against different individuals several decrees are passed
and not one. There are cases in which more than one
decree can be and are passed under the Code of Civil
Procedure, for instance cases where preliminary
decrees are passed, but the normal rule is one decree is
passed in one suit and so we are not prepared to accede
to the argument that the first part of the relevant
clause of Art. 133(1) should be read on the basis that
every decree passed in a suit should be held to be a
(1) [1916] 36 l.C. 398; 22 C.\\'.N. 192.
460
SUPREME COURT REPORTS
[1962)
r96i
composite decree made up of several decrees in respect·
Tirumalachetti of several claims or reliefs and that the decree appealRaj"'""'
ed from is only that particular decree which is prov.
posed to be brought in appeal to this Court.
Tirumalachetti
The next question to consider is: what is the denoRadhakrishnayya tation of the word "decision" used in the said clause.
Chetty
The argument for the respondent is that the word
Gajendragadkar 1• "decision" does not mean the whole of the decision but
· the decision on that part of the controversy between
the parties which is brought to this Court in appeal.
In support of the argument that the decision does not
mean the entire decision of the trial court reliance is
placed on the provisions of 0. 20, rr. 4 and 5. Rule 4
of O. 20 deals with the judgments of Small Cause
Courts and judgments of other Courts, and it provides that the judgments falling under the first clause
need not contain more than the points for determination and decision thereon, whereas the judgments
falling under the latter class should contain a concise
statement of the case, the points for determination,
the decision thereon and the reasons for such decision.
There is no doubt that the decision in the context
means the decision on the points for determination.
That of course is the meaning of the word "decision'',
but whether or not the word "decision" means the
decision on one point or the decision of the whole suit
comprising of all the points in dispute between the
parties must inevitably depend upon the context, and
the context is plainly inconsistent with the argument
that the decision should mean the decision on a
specific point. If the word "decree" in the first part
of the relevant clause means not a part of the decree
but the whole of the decree then it would be reasonable to hold that the word "decision" must likewise
mean the entire decision of the trial court and not a
part of it ..
Then it is urged that 0. 41, r. 33 seems to contemplate that there can be an appeal against a part only
of the decree and so the word "decree" in the first
' '
part of the relevant clause may well mean a pa.rt of
the decree under appeal. It is true that under the
interpretation clause in s. 2 the word "decree" means,
2 S.C.R. SUPREME COURT REPORTS
461
inter alia, the formal expression of an adjndication
' 96'
which conclusively determines the rights of parties
Tirnmala<hdti
with regard to all or any of the matters in controversy
llajarn•n
in suit, and it is also true that a party aggrieved by a
v.
decree may appeal only against a part of it and is not
Tfru•nalachetti
bound to file an appeal against the whole of the Radhak>islmavya
decree; but we do not see how this can assist the resCM!ly
porn.lent in contending that the word "decree" mustGaj<>uhagrul/<a, ;.
mean '1 pat·t ot the decree when the context clearly
speaks to the contrary. Therefore, we are inclined to
hold that both "the decree., and "the decision" referred
to in the clause mean the decree and the decision
respccti vely taken as a whole and not in part.
The question as to the meaning of the word "decision" m the corresponding provision of the Code of
18S2 (s. 596) was considered by the Privy Council in
Rajah Tasadtluq Jfasul Khan v. 1llanik Chand (1). Thu
question which arose for Lhe decision of the Privy
Council was whether the appellate decree in that case
was one of affirmance or not. The appellate decree had
confirmed the trial court's decision though on different
grounds, and so it was urged that the appellate d~cree
was not one of affirmance. In rejecting this argument
the Privy Cormcil stated that :'the natural, obvious
and prima facic meaning of the word "decision" is
decision of the suit by the Court, and that that meaning should be given to it in the section" (s. 596).
The
Privy Council examined the <lefinition of the word
"judgment" in the Code of 1882 and came to the conclusion that the word "decision" meant the decision of the
8llit by the trial court and not the grounds stated in
sn pport of the said decision; in the result it was held
that the appellate decree which conffrmed the decision
of the trial court though on different grounds was in
law a decree of afftrmance. lt would thus be seen
that this dceision undoubtedly supports the conclusion
that the word "decision" in Art. 133(1) should mean
not a part of the decision or the grounds given for it
but the decision of the suit as a whole; and if that be
so, the clause could be harmoniously construed to
mean that in determining the character of the appellate decree we have to look at the appeliatc decree as
(I) [1902] L.R. 30 I.A. 35·
59
462
SUPREME COURT REPORTS
[1962]
1961
a whole, compare it with the decision of the trial court
as a whole and decide whether the appellate decree .is
Tirumalachetti
h
one of affirmance or not. In this enquiry t e nature
Rajaram
of .the variation made whether it is in favour of
v.
Ti1umalache11i the intending appellant or otherwise would not be
Radhakdshnayya relevant.
Chetty
It is then argued that this construction is incons1sG . d --dk
tent with the provision made by Art. 133(l)(a) in
a;en iaga
ar 1· regard to the value of the subject-matter of the dispute. There is no doubt that in applying the test of the
value of the subject-matter of the dispute what we
have to consider is the dispute in the Court of First
Instance and the dispute on appeal. In other words,
the value of the subject-matter has to be determined
by reference to the subject-matter which is actually
the subject-matter of the proposed appeal to this
Court. The argument is that if for determining the
value of the subject-matter it is necessary to consider
only that part of the decree and subject-matter which
are actually proposed to be brought to this Court in
appeal, in interpreting the word "decree" in the
relevant clause a similar approach should be adopted
and only that part of the decree should be considered
which is proposed to be brought to this Court in
appeal. We do not see the materiality of this consideration nor even its relevance. The test prescribed
by Art. 133{l)(a) is an independent additional test and
its effect has to be judged by interpreting the words
used by the relevant clause. If the said clause refers
to the amount of the value of the subject-matter
still in dispute on appeal quite plainly we must take
into account only the subject-matter in dispute in
appeal and nothing more. The words used in this
connection are clear and unambiguous but they cannot reasonably control the meaning of the word
"decree" in the relevant clause which provides for an
additional and an independent condition. Therefore,
in our opinion, the argument based on the construction
of Art. 133{l)(a) is not well founded.
The same comment falls to be made in regard to
the other argument based on the provision which
requires the High Court further to certify that the
2 S.C.R.
SUPREME COURT REPORTS
463
appeal involves some substantial question of law. It
z96z
is urged that this requirement has to be satisfied by
Tirumalachetti
reference to that portion of the decree which is pro.
Rajaram
posed to be brought to this Court under appeal and
v.
that would suggest that even the test of affirmance
Tirumalachetti
should be applied by reference to the part of the decree lladhakrishnayya
under appeal and not by reference to the whole of the
Chetty
appellate decree.
Here again, the words used are Gajendragadkar J.
that the appeal involves some substantial question of
law which must necessarily mean the appeal as it is
proposed to be brought and that must "refer only to
the decree brought under appeal. Therefore, even
this argument does not afford material assistance in
construing the relevant clause with which we are
concerned.
There is yet another argument which must be exa.
mined. It is contended that the adoption of the
literal construction of the relevant clause relating to
affirmance would lead to anamolous and unreasonable
consequences. It is pointed out that if the decision
of the trial court is wholly confirmed the intending
appellant would not be entitled to come to this Court
as a matter of right unless there is a substantial
question of law. On the literal construction, however, he would be entitled to come to this Court even
if there is a very minor and slight modification in the
decision of the trial court and that too in his favour.
Prima facie it may no doubt seem somewhat unreasonable that even a slight modification made in the decision should give the intending appellant the right to
come to this Court; but, on the other hand, even this
position cannot be regarded as unreasonable because
it would really be found to be consistent with the
principle underlying the doctrine of affirmance. What
is the basic idea underlying the relevant provision?
If two courts which have judged the dispute between
the parties and applied their independent minds to it
agree in their conclusions the appellate decision is
one of affirmance and unless there is a substantial
question of law no further right to appeal should lie.
That is the basis of the provision. When, however,
a variation is made by the appellate court it tends to
464
SUPREME COURT REPORTS
[1962]
r96r
show that the two courts have not entirely agreed
and so it is not a case of affirmance. The extent of
Tfruwntachclli the difference does not matter so much as the fact
Hajaran1
v.
that there is a difference in the result, and so in pres.
Ti• 11mulachctti cribing the doctrine of affirmance the Constitution·
Rad/wh6sh>rnn·a makers may well have intended that the said doctrine
Chelly
should be confined only to cases where there is a
G . d-- 1,
1 complete affirmance and not to cases of partial affirma1cn raga111ur
.
•
ance.
We do not thrnk that the consequence of the
view we are inclined to take can be reasonably charac·
terised as opposed to commonsense. .Besides, if on a
fair and reasonable construction the words used in
tho relevant clause lead to the conclusion which we are
inclined to draw it would be unreasonable to limit the
scope of the said words on hypothetical considerations
of unreasonable consequences. As we have already
observed we are dealing with a constitutioual right
conferred on litigants, and, unless the limitation contended for by the respondent can be said to flow reasonably from the words used in the relevant clause,
it would not be open to us to adopt that limited constrnction merely on such hypothetical considerations.
Thon it is urged that the majority of the High
Courts in India have t[1ken the same view which the
l\Iadras High Court ha' taken in the present case and
so we should be slow to interfere with the majority
de('ision. In support of this conclusion the principle
of stare decisis is pressed into service.
We are not
impressed by this argument. It is perfectly true that
in construing the clause we would carefully have to
bear in mind the views expressed by the majority of
our High Courts, but as we have already indic.tted
there is a sharp conflict of opinion on this point a.nd
it can be stated generally that in almost all the High
Courts different views have been expressed at one
time or the other. Besides, it would be singularly inappropriate to invoke the doctrine of stare decisis in
a case of this kind where High Courts have differed
and the matter has been brought to this Court for
rPsolving the said difference of opinion. In such a
case it is open to us, and indeed it is our duty, to construe the relevant clause and decide which of the two
2 S.C.Jt. SUPREME COUltT HEPORTS
465
conflicting views should hereafter prevail. Therefore
z96r
the argument based on. the r)ractice prevailing in the
1'irumalachetti
majority of the High Courts in this country is not of
l!ajaram
much assistance.
v
At this stage we may deal with another argument
rirumalach" i
urged by Mr. Rama Reddy who appeared for some of Rudl,ahr;s/mayya
the respondents. He contends that in co1rntming !.he
Chclly
relevant clause we may have regar<l to the fact that 1, .
1--dl 1
I C
.
.
.
·
,
,
f h
1a;e11t raga u1r
,
t 10 onst1tut10n rntended to restnct the nght o t e
appellant to come to this Court and not to widen it.
In support of this argument he relics on the fact that
the value of the subject-matter prescribed by Art.
133(l)(a) is now made Rs. 20,000 whereas formerly it
was Rs. 10,000, and he also relies on the provisions
of Art. 133(3) under which no appeal shall lie to the
Supreme Court from the judgment, decree or final
order of one judge of a High Court. In our opinion,
there is no substance in this contention. It is well
known that in raising the amount of the value of the
subject-matter Art. 133 (1) (a) has merely partially
recognised the fall in the price of the rupee and so it
cannot be read as showing the intention to restrict
the appellant's right in any manner. In regard to the
provisions of Art. 133(3) there is no material change
made by the Constitution since the position under
s. 111 of the Code of 1908 as well as s. 597 of the
Code of 1882 was substantially the same. vVe would
accordingly hold that in determining the question as
to whether the appellate decree passed by the High
Court affirmed the decision of the trial court the
appellate decree must be considered as a whole in
relation to the decision of the trial court similarly
considered as a whole. That is the proper approach
in applying the test of ;:ffirmancc. If thMu is a variation made in the appellate dercrP~ in the decision of
the trial court it is not a decree of 1tffirnrnncc am] this
is not affected either by the extent of tho vari1ition
made or by the fact that the variation is nrnrle in
favour of the intending appellant and not against
him.
In this connection it would be interestir1g to refer t.o
three rlecisions which afford judicial background for
466
SUPREME COURT REPORTS
[1962]
r961
the controversy tl.~', has been agitated in the several
High Courts for so many years past. In Ra;a Bree
Tirumalachetti
J
Elajarnm
Nath Roy Bahadur v. The Secretary of State for India
v.
in Council (1 ) a Full Bench of the Calcutta High Court
Tfrumalachelli had occasion to consider the effect of the relevant
Radhak,ishnayya provisions of s. 596 of the Code of 1882. In a land
Chetty
acquisition case the applicant had claimed a sum of
G . d--dk 1 Rs. 77 ,000 odd as the value of his land. The Collec.
a;en raga
ar . tor had assessed the value at Rs. 28,287. On a refe.
rence the judge upheld the Collector's award. The
applicant then moved the High Court by appeal and
in his appeal he valued his claim at Rs. 49,000.
The
High Court partially allowed the appeal and granted
him an additional sum of Rs. 7,000.
The applicant
then applied for leave to appeal to the Privy Council
and urged that the decree passed by the High Court
on appeal was not a decree of affirmance and since
the test of the value of the subject-matter was satis.
lied be was entitled to go to the Privy Council. This
application was rejected by the High Court. "The
appellant desires'', observed Maclean, C. J., "to appeal
only against the decision of this Court so far as it
affirmed the decision of the court below, nothing else.
This seems to be, in substance, as far as the subject of
the appeal goes, a decree of affirmance". The learned
Chief Justice also added that whilst the decree of the
High Court modified in the petitioner's favour the
original decree, as regards the subject-matter of the
proposed appeal to His Majesty in Council it most
certainly affirmed the decree of the first court. This
judgment was pronounced in 1904; and the construe.
tion which it put on the relevant clause of s. 596 is in
conformity with the views for which the respondents
contend in the present appeal.
The same point was raised before the Privy Council
in Annapurnabai v. Ruprao (').
In that case the
plaintiff who claimed to have been adopted by the
senior widow of Shanker Rao sued the junior widow
of Shanker Rao (defendant 1) as well as the person
who claimed to have been adopted by her (defendant
2) for possession of half the property of Shanker Rao.
(1) (1 9o4J 8 c.w.N. 294.
(2) (1924) L.R. 51 I.A. 319.
2 S.C.R. SUPREME COURT REPORTS
467
Both the defendants denied the plaintiff's adoption
r96 r
and set up the adoption of defendant 2. The trial
Tirumalachetti
court held that the plaintiff's adoption had been
Rajaram
proved and that the alleged adoption of defendant 2
v.
had not been proved. It, however, found that the
Tirumalachetti
plaintiff was bound to provide maintenance for defen- Radhakrishnayya
dant l at the rate of Rsc 800 per annum. Defendant 1
Chetty
had in that behalf claimed Rs. 3,000 per annum for Gajendragadkar ].
her maintenance out of the estate. Upon appeal by
the defendants to the Court of the Judicial Commissioner the trial court's decree was modified by increasing the maintenance from Rs. 800 to Rs. 1,200 per
annum. In other respects the decree was affirmed.
The defendants t.hen applied to the Court of the Judicial Commissioner for leave to appeal to the Privy
Council. Their argument that they were entitled to
appeal to the Privy Council was rejected on the ground
that the appellate decree was one of affirmance, and
that a small change made by it in favour of the defendants did not affect that position. It was this decision which was challenged before the Privy Council.
Lord Dunedin, who delivered a very short judgment
on behalf of the Board, stated that in the opinion of
their Lordships the contention of the petitioners' counsel as to the effect of s. llO of the Code of Civil Procedure is correct, and the petitioners had a right of
appeal. In other words, this decision clearly shows
that though the trial court's decision had been varied
to some extent in favour of the intending appellants
it was held that the appellate decree was not one of
affirmance and so the intending appellants were entitled to obtain leave to appeal to the Privy Council.
It does appear that the appellants in that case confined their appeal only to the amount of maintenance
having regard to the concurrent findings made by the
courts below in respect of other matters; and so the
special leave granted to them was limited to the question of the said maintnance allowance. That, however, had nothing to do with the decision of the Privy
Council as to the character of the appellate decree.
The appellants did not want to agitate the other points
and asked for permission to limit their appeal only to
468
SUPREME COURT REPORTS
[1962]
i96I
the question of their maintenance; that is about all.
Thus it is clear that the decision of the Privy Council
Tirumalaclletti
llajamm
iu that case construed the relevant provisions of s. 110
v.
literally and held that if the appellate decree m11,kes
Tfrumalachetti any variation in the <lecision of the trial court-may
Radhakrishnayya be in favour of the intending appellant-it is not a
Che~
decree of affirmance and the intending appellant was
Gajendrngadkar 1. entitled to go to the Privy Council in appeal. It is
true that the judgment does not purport to discuss the
question of construction but the conclusion has been
emphatically recorded and there can be no doubt that
that couclusion proceeds on the literal construction of
s. llO of the Code. This judgment was pronounced
in 1924.
Three years later the same queRtion arose before the
Calcutta High Court in Narendra Lal Da8 Chaudhury
v. Gopendra Lal Das Chaudhury('). In that case the
intending appellant had brought a suit for partition of
the joint family property valued at Rs. 10,00,000. A
preliminary decree was passed against which an
appeal was brought to the High Court. It appeared
that the first question which the plaintiff.appellant
raised was that the preliminary decree had given him
a smaller share in the property than what he was
entitled to get. This contention was upheld by the
High Court and in consequence his share was increased.
In that respect the High Court reversed the finding of
the trial Court. On other points raised by the plaintiffappellant the High Court confirmed the judgment of
the trial court. It was against this appellate decision
that an application was made for leave to go to the
Privy Council; and it was urged that as a result of the
decision of the Privy Council in Annapurnabai's case(')
the appellant was entitled to obtain leave; and that
squarely raised Lhe question about the effect of the
decision in Annapurnabai's case('). Chief Justice
Rankin took the view that the only effect of the said
decision was to reverse the conclusion of the Calcutta
High Court in Raja Sree Nath Roy's case(') and nothing
more. "It appears to me", observed the learned Chief
(t) A.I.R. 1927 Cal. 543.
(z) (1924) L.R. 51 I.A. 3•9·
(J) (1904) 8 C.W.N. 294'
2 S.C.R. SUPREME COURT REPORTS
469
Justice, "that the case of Annapurnabai (1) is not in
itself a sufficient authority to justify this Court in Tirnmalachetti
abandoning the principle which it has ·with other High
Rajaram
Courts acted upon; that is to say, I do not think that
v.
it shows that it is an erroneous view that we have to RTdirhumk ~lahchetti
1 k
h
b
d
h
.
h
b"
a
a ris nayya
oo
to t e su stance an
see w at IS t e su iectChetty
matter of the appeal to His Majesty in Council". The
learned Judge then proceeded to express his doubt as Gajendragadkar J.
to whether "in the end even that principle would be
found to be in accordance with the construction to be
put upon s.