# SUPREME COURT REPORTS (1963] R. RAMACHANDRAN A YYAR v. RAMALINGAM CHETTIAR

- **Citation:** [1963] 3 S.C.R. 604
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** P. B. Gajendragadkar, K. c. DAS GUPTA, J. R. MuoHoLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1963-r-ramachandran-a-yyar-v-ramalingam-chettiar-2649
- **Pages:** 19

## Headnote

Second Appeal-Interference by High
Oovrt-Finding
of foot-Substantial error or defect of procedure-What is-
<Jode ofOivil Procedure, 1908 (Act V of 1908),
s. JOO.
There was a partnership between the two appellants
and the father of the respondents Nos. I and 2 who died in 1936.
In 1938 respondent No. 2 executed a release deed in favour
of the the appellants whereunder the appellants agreed to pay
a sum of money to respo:idens Nos. I and 2 in lieu of the share
of their father.
Subsequently, respondent No. I filed a suit
for setting aside the release deed and for accounts. The main
questions that arose for
d~cision were whether the release
deed was justified by adequate consideration, whether respon·
dent No. 2 had independent advice at the time when he signed
the deed and whether he acted bonafide or he was imposed
upon. The trial Court decreed the suit but on appeal the
first appellate court dismissed the suit.
In second appeal
the High Court upset the findings of the first appellate court
and restored the decree of the trial ~ourt. The appellants
contended that the High Court had no juri&diction to interfere
in second appeal as the question involved was one of fact. The
respondents contended that the High Court was competent to
interfere as there was a substantial· defect of procedure com.
mittcd by the first appellate court in that it did not deal with
all the reasons given by the trial court
1and it did not come to
close quarters with the judgment of the trial court.
Held, that the High Court was not justified in interfering
with the findings of fact recorded by the first appellate court
in favour of the appellants.
There is no jurisdiction to entertain a secon.d
appeal on the ground
of an erroneeus
finding of fact, however gross or inexcusable the error may
seem to be. To enable the High Court to interfere under
s. lOO(l)(c) of the Code of Civil Procedure there must be a
substantial error or defect in the procedure which may possibly have produced error or defect in decision of the case upon
.the merits; it is not enough that there is an error or defect in
the appreciation of evidence. Even where the appreciation
a s.c.R.
SUPREME COURT REPORTS
605
or evidence made by the first appellate court is patently erroneous and the finding of fact recorded in consequence is grossly
erroneous, it cannot be said to introduce a substantial error or
defect in procedure. In the presnt case, the High Court was not
entitled to interfere merely because judgment of the first appellate court was not as elaborate as that of the trial court or
because some of the reasons given by the trial court had not
been expressly reversed by the first appellate court. The questions which arose for decision were pure questions of fact and
their decision depended upon the appreciation of the evidence
and circumstances of the case. The findings on these questions
given by the first appellate court were binding on the High
Court. The broad features of the evidence supported the conclusions of the first appellate court and it could not be contended that its finding was perverse or was not supported by any
evidence.
:.~
Mst. Durga Ohoudhrain v. Jawahir Singh Ohoudhri (1890)
L. R. 17 I. A. 122, relied on.
Rani Hemanta Kumari Debi v. Brojendra Kishore Rao
Ohowdry, (1890) L.R. 17 I.A. 65, Shivabasava Kom Amingavda
v; Sangappa Bin Amingavda,( 1904) L. R. 31 I. A. 154 and
Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy
Bahadur, (1906) XVI M.L.J.R. 272, referred to.
Mangumma v. Paidayya. (1940) 53 L. W. 160, disappro·
ved.

## Text

1961
AUfU3111.
604
SUPREME COURT REPORTS (1963]
R. RAMACHANDRAN A YYAR
v.
RAMALINGAM CHETTIAR
(P. B. GAJENDRAGADKAR, K. c. DAS GUPTA,
.
and J. R. MuoHoLKAR, JJ.)
Second Appeal-Interference by High
Oovrt-Finding
of foot-Substantial error or defect of procedure-What is-
<Jode ofOivil Procedure, 1908 (Act V of 1908),
s. JOO.
There was a partnership between the two appellants
and the father of the respondents Nos. I and 2 who died in 1936.
In 1938 respondent No. 2 executed a release deed in favour
of the the appellants whereunder the appellants agreed to pay
a sum of money to respo:idens Nos. I and 2 in lieu of the share
of their father.
Subsequently, respondent No. I filed a suit
for setting aside the release deed and for accounts. The main
questions that arose for
d~cision were whether the release
deed was justified by adequate consideration, whether respon·
dent No. 2 had independent advice at the time when he signed
the deed and whether he acted bonafide or he was imposed
upon. The trial Court decreed the suit but on appeal the
first appellate court dismissed the suit.
In second appeal
the High Court upset the findings of the first appellate court
and restored the decree of the trial ~ourt. The appellants
contended that the High Court had no juri&diction to interfere
in second appeal as the question involved was one of fact. The
respondents contended that the High Court was competent to
interfere as there was a substantial· defect of procedure com.
mittcd by the first appellate court in that it did not deal with
all the reasons given by the trial court
1and it did not come to
close quarters with the judgment of the trial court.
Held, that the High Court was not justified in interfering
with the findings of fact recorded by the first appellate court
in favour of the appellants.
There is no jurisdiction to entertain a secon.d
appeal on the ground
of an erroneeus
finding of fact, however gross or inexcusable the error may
seem to be. To enable the High Court to interfere under
s. lOO(l)(c) of the Code of Civil Procedure there must be a
substantial error or defect in the procedure which may possibly have produced error or defect in decision of the case upon
.the merits; it is not enough that there is an error or defect in
the appreciation of evidence. Even where the appreciation
a s.c.R.
SUPREME COURT REPORTS
605
or evidence made by the first appellate court is patently erroneous and the finding of fact recorded in consequence is grossly
erroneous, it cannot be said to introduce a substantial error or
defect in procedure. In the presnt case, the High Court was not
entitled to interfere merely because judgment of the first appellate court was not as elaborate as that of the trial court or
because some of the reasons given by the trial court had not
been expressly reversed by the first appellate court. The questions which arose for decision were pure questions of fact and
their decision depended upon the appreciation of the evidence
and circumstances of the case. The findings on these questions
given by the first appellate court were binding on the High
Court. The broad features of the evidence supported the conclusions of the first appellate court and it could not be contended that its finding was perverse or was not supported by any
evidence.
:.~
Mst. Durga Ohoudhrain v. Jawahir Singh Ohoudhri (1890)
L. R. 17 I. A. 122, relied on.
Rani Hemanta Kumari Debi v. Brojendra Kishore Rao
Ohowdry, (1890) L.R. 17 I.A. 65, Shivabasava Kom Amingavda
v; Sangappa Bin Amingavda,( 1904) L. R. 31 I. A. 154 and
Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy
Bahadur, (1906) XVI M.L.J.R. 272, referred to.
Mangumma v. Paidayya. (1940) 53 L. W. 160, disappro·
ved.
CIVIL APPELLATE JuRISDICTIONi Civil AppeaJ
No. 284/59.
Appeal by special leave from the judgment
and decree dated March 16, 1956, of the Madras
High Court in S. A. No. 436 of 1953.
A. V. Viswanatha Sastri, R. Ganapathy Iyer and
G. GopalakriBhnan, for the appellants.
N. O. Chatterjee, B. N. Kirpal, Bisharribar Lal
and Ganpat Rai, for the respondents.
1962. August 10.
The Judgment of the court
was delivered by
1962
R. R.m.cfulnil1an
.Ayya1
v.
Ramalin,ram Ohellior
GAJENDRAGADKAR, J._;This a.ppea.l by special
Gajendragadkar J,
Je~ve raises the old familiar •question about the
1962
B. · Ramachani:lran
4.,Jyar
v.
Ramalingam.
Chettiar
606
SNPREME GOBRT REPORTS [1963J
limits of the High Court's jurisdiotion to interfere
with findings of foot
in a second appeal under
s. 100 of the Code of Civil Procedure.
Defendants·
1 & 2 who are t.he appellants before us contend
that the High Court has exceeded its jurisdiction
in interfering with the findings of fact recorded by
the lower appellate Court in their favour in dismissing the suit filed against them by respondent
No. 1.
Before dealing with this question, it is
necessary to refer to the material facts leading to
the present dispute between the parties.
It appears that there was a partnership between appellant No. 1 Ramachandra Iysr, his fatherin·law V. V. Kuppuswami Ayyar who was the father
of appellant No. 2 Vanohinatha Ayyar, Rama Ayyar
and Lakshamanan Chattier. This partnership worked
two mille in :K:asha Chidambii,ram. Lakshmanan
Chattier is the fathe:r of respondent No. 1, the
plaintiff, and respondent No. 2,
defendant No. 3.
After the death of V. V. lruppuswami Ayyar, the
second appellant took his place in the partnership.
Rama Ayyar retired from the partnership in September, rn36. Lakshmanan Chattier died on June
10. 1936, so that after the retirement · of Rama
Ayyar, the partnership continued to be managed by
the two appellants as partners. On September
26, 1938, defendant No. 3 executed a release deed in
favour of the two appellants. Under this document
Rs. 9,165/- were agreed to be paid by the appellants
in lieu of the amount due to
~he share of
Lakshmanan
Chettiar.
Ont of this
amount,
Rs. 8,165/- were paid to respondent No. 2 on the
date when
the
document was executed and
Rs. l,OOCl/- were kept with the appellants in order
to be paid to respondent No. 1 who is the present
plaintiff, on his attaining majority. l.{esopndent
No. 2 had attained majority on August 12, 1938,
whereas respondent No. l
attained majority on
January 17 ~ 19i 7. It appears ti\at on June 30, 1944,
I
3 S.C.R.
SUPREME COURT REPORTS
607
the balance of Rs. l,OOOi- which was kept with the
appellantB to be pa.id to respondent No. I on his
attaining majority, wa.s paid by them to respondent No. 2 on his furnishing security. After respondent No. I attained majority, he gave notice to
the.appellants calling upon them to satisfy him
about the correctness and bonafide character of
the transaction of settlement reached between them
and his brother, respondent No. 2, and in that
connection, be demanded an inspection of the relevant books of account.
The appe11ants turned
down his request for the inspection of the accountbooks and so, on January 9, 1950, i. e., within
three years after his attaining majority, respondent No. 1 filed the pr13sent suit.
In his suit, respondent N 0. 1 a11eged that at
the time when his elder brother, respondent No.2,
executed a release deed in favour of the appellants
he (respondent No. 2) had just attained majority
and at the time of the said transaction, h~ had no
independent advice and was "literally imposed
upon". The plaint further alleged that the said release deed was executed for a wholly inadequate
consideration, without full knowledge by the second
respondent of the real facts of the situation and
only as a provisional arrangement. According to
respondent No. 1, the arrangement was no more
than tentative and it was not binding agairnst him.
It is mainly on these allegations that he alleged that
the release deed could not have "validly bartered
away his share in the profits due to his deceased
father as a partner of the firm", and he claimed a
declaration that the said release deed was not binding on him; that he was entitled to have an account
rendered by the appellants in regard to the profits
and assets of the partnership as on June 10, 1936,
the date on which his father died, and that the
share allotted to his father should be ascertained
{tnd the appellants directed to pay him of the same.
:
I
•,
)
1962
R. RaMcchandrnn
AJyar
.v.
R amalin~~,,.
Chettiar
Gaj1ndragadkar .1.
1962
R. Ra~hontlran
Ayyar
••
Ramalingam
Chattiar
608
StTPREME COUR'l' REPORTS [1963]
In the plaint, respondent No. l also claimed that he
was entitled to recover a share of the profits of the
two mills up to the date of the suit, proportionate to
the sum found due to him .
The material aliegations made by respondent
No. l in his plaint in regard to the settlement 'deed
were disputed by the appellants by their written
statement. They urged. that the said settlement
had been arrived at between respondent No. 2
and themselves as a result of the intervention of
respectable people, two of whom were closely related
to the family of respondents l & 2.
Their uncle,
Santhonam Chettiar, u.nd Chekka Chettiar who is
the son of the sister of their father's mother, took
active part in the settlement of the dispute and
these two gentlemen consulted
Sama Ayyar, a
respectable merchant of the place in whom all the
parties had full confidence, and it was virtually as
a result of the advice tended by Sama Ayyar that
the terms of the release deed were settled. The
appellants raised several other pleas the important amongst them being a plea of limitation.
Of these pleadings, . the learned trial Judge
framed seven substantive issues. The first issue was
whether the document
of September 26,
1958,
execut.ed by the second respondent was a release, or
an alienation, or a discharge? The second issue was
in regard to limitation and the third issue was whether as an alienation, ~he said document would bind
respondent No. l ? By issue No. 6, the question
raised was whether respondent No. l was entitled
to question the release deed? All the issues thus
framed answered by the trial Judge in favour of
respondent No. l, and against the appellants. In the
result, the suit filed by respondent No. l was
decreed and a Commissioner was appointed to
ta~e acco-qn~.
· ·
38.C.R.
SUPREME COURT REPORTS
609
It
appears
that
the
learned
trial
Judge held
that at the time when the release
deed was executed the appellants had suppressed
material
books
from
respondent
No.
2
and
his
adviser,
and the · trial Court
was
indignant at the conduct of the appellants in not
producing the said books even at the trial. It then
proceeded to examine the evidence addduced before
it by the respective parties and came to the conclusion th11-t the release deed "was brought about
under fraudulent and mistak(:\n circumstances without
looking into all relevant; accounts that it was not
effected for the benefit of the family and hence, it
was not binding on the plaintiff." It would be noti·
ced that the principal dispute between the parties
at the trial was whet.her the two mills which were
operated by the partnership formed part Of the
assets of the partnership itself, or whether they
belonged to the appellants alone. The trial Court
bas expressly stated that it did not propose to
make any finding on that
issue; but, curiously
anough, it has left the decision of that question to
the commissioner whom it appointed to take
accounts.
Against this decree, the appellants preferred
an appeal in the District Court at South Arcot.
The lower appellate Court examined the relevant
evidence surrounding the execution of the release
deed and took into account the admissions made
by respondent No.2. It held that all the circumstances proved in the case show beyond doubt
that the settlements was not done in a hurry or
haste and that there was no intention on the part
of the appellants to defraud respondent No. 2 and
his brother. The learned Judge also held, in the
.-._
alternative, that the suit filed by respondent No. I
would be barred by limitation. In his opinion,
s. 7 of the limitation Act was a bar to the main-
~~bilit1 of the suit. We ~~ve alreadf noticec;l
1962
R. Ram,,chand• 01,
Ayyar
y
Ramalingaw
Chettiur
<!Jajendragadkar J.
1962
R. Ramacho:i titan
'
Ayyar
v.
Ram~lingam
Chettiar
Gajeridragadka~· J.
610
SRPREME COURT REPORTS [1963]
that the lower appellate court has made tt. definite
finding that the discharge given by respondent No.
2 was binding on respondent No. 1. The result of
those findings was that· the decree passed by the
trial Court was set ·aside and respondent No. I
suit was ordered to be dismissed· It appears that
in the appellate Court, respondent No 1 field
certain cross-objections
and had also made an
application for the amendment of the plaint.
Both these applications were dismissed.
The dismissal of his suit took re8pondents
No.I to the High Court in . second appeal and the'
High Court has allowed the- appeal, beca11se it was
disposed to accept the finding . of the trial Court
that the impugned transaction was not binding
against respondent No. l. It appears that the
learned Judge who heared the second appeal was
taken through the evidence and though he has not
recroded his findings on the evidence as such, he
has indicated his ocourence with the conclusions of
the trial Court. He referred to the dispute about
the two mil1s and to the fact that Sama Ayyar had
not been examinPd. He thought · the uncle of the
respondents was a
respectable witness and th~t
there was no reason to disbelieve his evidence and
' he held" that accounts had not been examined at .
thH time when the impugned settlement was reached. It is on these broad grounds that he allowed
the appeal and restored the decree passed by the
trial Court. On the. queston of limitation, the learned Judge held that s.7 of the Limitation Act was
not a ba.r the suit, because by his present action
reKpondent No.I was not in terms asking for accou·
nts as such, but he was claiming a declaration that .
the document executed by respondent No.2 .was not
binding on him. It is this decree which is challenged before us by Mr. Viswanath Sastri on behalf of
~be a:ppellants ii) tl:ie -present o.:p:peal1
. 4
....
3S.C.R.
SUPREME COURT REPORTS
611
Mr. Sa.stri contends that the principal question which was agitated before the High Uourt by
respondent No. l was a question of fact and it was
not open to the High Court exercising .its jurisdiction
under s. 100 Code of Civil Procedure to interfere with
the finding recorded by the lower appellate . Court
on that question of fact.
On the other hand, Mr.
Chatterjee for respondent No. l has argued that
the High Court was justified in interfering with
the decree passed by the lower appellate Court
because that decree disclosed a substantial error or
defect in the procedure, and so, the case falls
under s. 100 (1) (c) of the Code. . That iR h0W the
principal question which falls for our decision is
whether the High Court was justified in reversing
the . conclusion of fact recorded by the lower
appellate Court in this case.
The question about the limits of the jurisdiction
of the High Court in entertaining second appeals
has been considered by several High Courts in
India as well as the Privy Council on numorous
occasions, and the true legal position in that behalf
is not at all in doubt. In hearing a second appeal,
if the Hi~h Court is satisfied that the decision is
contrary to law or some usage having the force of
law, or that the decision has failed to determine
some material issue of law or m~age having the
force of law, or if there is a substantial error or
defect in the procedure provided by the code, or
by any other Law for the time being in force which
may have produced error or defect in the decision
of the case upon the merits, it c~n interfere with
the conclusions of the lower appellate Court.
That, in plain terms, is what· els. (a), (b) and (C) of
s. 100 (1) provide. Mr. Chatterjee, however, relies
on cl. ( c) of s. 100 ( 1) and contends that the High
Court found that there was a substantial error or
defect in the proc'3dure affecting the decision on
the merits~ and he seeks to su~port this contentioq
1962
R. Ramachandran
Ayyar
v.
Rama/ingam
Ch,ttiar
Gajendragadkar J. ·
1962
.R. Ramaehandran
Ayiar
v
Rarnalingam
ChettirJ'I·
0aj~ndragadka1 J,
612
SUPREME COURT REP0RTS [I 963]
on the ground that all the reasons given by the
trial Court in support of its finding that respondent
No.I was not bound by the !l>greement, had not
belln duly considered by the lower appellate Court,
and that is a substantial error and defect in the
procedure. He says that if the lower appellate
Court wanted to interfere with ·the trial Court's
conclueions of fact, it was necessary that all the
reasons given by the trial Court should have been
examined and the whole of the evidence
~et ont
by the trial Court in its judgment should have
been taken into account. Since the judgment of
the lower appellate Court is not elaborate and some
of the grounds det out in the trial Court's judgment
have not been examined, that constitutes an error
or defect in the procedure and so, the High Court
was entitled to correct that error or defect, because
the said error or defect affected the decision of the
merits in the case.
The judgment of the appeal
Court, Mr. Chatterj e contends, "must come into
close quarters" with .he judgment of the trial Court
and meet the reasoning given there in, before it
can be treated as conclusive between the parties for
the purposes of s. 100.
It is well-known that as early as 1890, the
Privy Council had occasion to consider this aspect
of the matter in. Mussummat Durge Ohoudhrain v.
Jawahir Singh Ohoudhri.(').
In that case, it was
urged before the Privy .Council, relying upon the
decision of the Calcutta and Allahabad High Courts
in Futtehma Begum v. Mohamed
Ausur, (') and
Nivath Singh v. Bhikki Singh (8 ) respectively, that
the High Court would be within its jurisdiction in
holding that where the l'ower appellate Court has
clearly misapprehended what the evidence before
it was, and has been led to discard or not give
_-
(IJ (1890) L.R. 17 I.A. 122.
. .
(2) (1882) I.L.R. 9 Cal. 30~,
·(ii (1885! J.L.R. 7 All. Eif.l·
a s.c.:B.
SUPREME COURT REPORTS
613
·sufficient weight to other evidence to which it is
not entitled, the High Court can interfere under
s. 100. This contention was rejected by the Privy ·
Council and it was observed that an erroneous
finding of fact is a different thing from an error or
defect in procedure, and that there is no jurisdiction
to entertain a second appeal on the ground of an
erroneous fiinding of fact, . however gross or
inexcusable the error may seem to be. Their
Lordships added that nothing can be clearer than
the declaration in the Code of Civil Procedure that
no second appeal will lie except on the grounds
specified in s. 584 (corresponding to s. 100 of the
present Code), and they uttered a word of warning
that no Court in India or elsewere has power to
add to or enlarge those grounds. Since 1890, this
decision has been treated as 1 a leading decision on
the question about the jurisdiction of the High
Court in dealing with questions of facts in second
appeals.
It is necessary ta remember that s. 100 (l)
(c) refers to a substantial error or defect in the
procedur.e. The defect· or error must be substantial
that is one fact to remember; and the substantial
error or defect should be such as may possibly have.
produced error or defect in the decision of the case
upon the merits-that is another fact to be borne in
mind.
The error or defect in the procedure to
which the clause refers is, as the clause clearly and
unambiguously indicates, an error or defect conne·
cted witJ:i, or relating to, the procedure; it is not an
error or defect in the appreCiation of evidence
adduce by the parties on the merits. That is why,
even if the appreciation of evidence ma.de by the
lower appellate Court is patently erroneous and the
finding of fact recorded in oonsequence is grossly
erroneous, that cannot be said to introduce ·a substantial error or defect in the procedure. On the
other hand, if in dealing with a question of fact,
•
196.8
R. R•tnCJtlw.n«'IH
.AJ'J'Cl'I
v.
RamCJliWJOm
Oh1tlitl'I
'ii•j1n1lr•&•lli'I J.
1968
R, lramJ&handran
Ayyar
v
Ramating,im
Chettiar
6i4
SUPREME COURT REPORTS [I963j
the lower appellate Court had placed the onus on a. ·
wrong party and its finding of fact is the result,
substantially, of this wrong approach, that may be
regarded as a defect in procedure; if in dealing with
questions of fact, the lower appellate Court discards
evidence on the ground that it is inadmissible and
the High Court is satisfied that the evidence was
admissible, that may introduce an error or defect in
procedure. If the lower appellate Court fails to
consider an issue which had been tried and found
upon by the trial Court and.proceeds to reverse the
trial Court's decision without the consideration of
such an issue, that may be regarded as an error or
defect in procedure; if the lower appellate Court
allows a new point of fact to be raised for the first
time before it, or permits a party to adopt a new
plea offact, or makes.out a new case for a party,
that may, in some cases, be said to amount to a
defect or error in procedure. But the High Court
cannot interfere with the conclusions of fact recorded
by the lower appellate Court, however erroneous
the said conclusions may appear to be to the High
Court, because, as the Privy Council observed, however gross or inexcusable the error may seem to be
there is no jurisdiction under section 100 to correct
that error.
Mr. Chatterjee, however, has purported to base
his contentions on certain decisions to which it is
necessary to refer. In Rani Bemant Kumari Debi v.
Brojendra Kishore Roy Ohowdry(1), the dispute was in
regard to the binding character of the compromise
between the parties~ The trial Court had held that
the compromise was binding and dismissed the suit.
The District Judge reversed the decree on the
ground that the compromise was not binding. The
matter then went to the High Court in second
appeal, and the High Court held that the compromise was binding and restored the decree of the trial
(I) (1890) L.R. 17 I.A. 65.
-
3 S.C.R.
SUPREME COURT REPORTS
(Ho
Court. When it was urged before the Privy Council that the High Court had exceeded its jurisdiction
in interfering with the lower appellate Court's con- ·
clusion on a question of fact, the Privy Council
a~rmed the decision of the High Court on the
ground that the finding of the lower appellate Court
had been recorded without any evidence; and so,
this decision merely shows that if a finding of fact
has been recorded by the first appellate Court with0ut any evidence, that finding can be successfully
challenged in second appeal, because a finding of
fact which is not supported by any evidence can be
questioned under s. 100; and in that connection,
it may be said that the decree proceeding on such a
finding discloses a substantial defect or error in
procedure. It is true that in dealing with this point
Sir Richard Couch has observed that "when the
judgments come to be looked at, it appears that he
(the first appellate Court) has reversed the decree
of tl~ie first Court in the absence of any evidenceoertain1y in the absence of any evidence upon which
he might reasonably come to the conclusion that the
deed of compromise was not for the benefit of the
adopted son.'' With respect, we may point out that
this observation sliould not be literally construed
to mean that wherever the High Court thinks that
the evidence accepted by the lower appellate Court
could not have been reasonably accepted, the High
Court would be justified in interfering with the
decision of t.he lower appellate Court. All that the
said observation means is that it should be a case
where the evidence, which is accepted by the lower
appellate Court, no reasonable person could have
accepted and that really amounts to saying that
there is no evidence at all. It is in this sense that
the said observation should be construed and then
it would be consistant with the Privy Countil's
decision in the case of Mst. Durga Okodkrain (1).
Therefore, we are inclined to treat this deoislon as
( 1) (18110) i..a. 17 l,A. J22,
1912
8. ltamachaniran
AP.Jar
v.
Rmnalingam
Oh1ttitw
Ggjmirt,adbr J,
R. ll•m•&hc.n'r"n
Ayya; - -J
v.
Ram!Jlinfam
Ch1telat'
616
SUPRE~E COURT ~EPORTS tI963j
supporting the proposition that the High Court oan
interfere with the conclusion of fact recorded by
. the lower appellate Court if the said conclusion is
not ~upported by any evidence.
In Shivabasava K om Amingavda v. Sangappa
Bin Amingavda (1), the Privy Council had occasion
to qonsider the scope of the exprossion "substential
def\jct or error of procedure'' under s. 100. In that
case , the validity of the decision of the High Court
in second appeal was challenged on th.e ground
that the High ·court had interfered with the
finding of fact recorded by the lower appellate
Coqrt. This contention was rejected by the Privy
Conilcil, because it took the view that the lower
appellate Court had disposed of the suit upon a
case not raised by the parties, and to which the
evidence had not been directed, and so, th" course
thus adopted by the lower appellate Court amounted
to a substantial error or defect of procedure within
the meaning of s. 584. The Privy Council has
also added that the High Court's oonclusiun was
right that the finding of fact recorded by the lower
appellate Court was not supported by any evidence.
Tliis decisiop illu1trates
what the expression
"supstantjal error or defect of procedure" really
means.
Mr. Chatterjee has then placed strong reliance
on the decision of the Madras High Court in
Mangamma v. Paidayya ('). ln that case, Pandrang
Row J. has held that where the first appellate
,;-.'
Court fails in its judgment reversing the finding of
the .trial Court to come into close quarters with
the evidence in the case or to meet the reasoning
of the trial Court in support of its conclusions, the
judgment of the appellate Court must be deemed
to be vitiated by an error in procedure and so, can
be interfered
with in second
appeal. These
•-~
observations, so doubt, support Mr. Chatterjee in
(1) (190t) L.R. 31 I.A. 15'.
{2) (l!HO) 53 L.W. liO.
-\
3 S.C.R.
SUPREME COURT REPORTS
617
contending that the High Court was justified ifi
reversing the finding of fact recorded by the lower
appellate Court in this case. In our opinion,
however, the broad observations made in the
judgment do not correctly represent the true legal
position about the limits of the High · Court's
jurisdiction in dealing with second appeals under
s. 100. This decision shows that the learned Judge
thought that the lower appellate Court was bound
not to go against the opinion of the trial Judge
who had an opportunity of having the witnesses
·before him, in deciding upon the credibility of the
oral evidence; and he has addea that unless good
reasons are given, any interference with the
conclusion of the trial Judge on matters of this
kind must be deemed to be erroneous in law. It
is plain that this statement of the law is inconsistent with the provisions of s. 100.
In Rani Hemanta Kumari Debi V· Mah:ardja
JanadindraNath Roy Bahadur ( 1)., the ;Privy Cotlft•
oil has no doubt observed that it is better that the
appellate Court whenever it reverses the judgment
of the lower Court, comes into close quarters with
the judgment of the lower Court and meets the
reasoning therein.
These obaervations, however,
do not assist us in determining the scope of the
provisions of s. 100. They were made in ail appeal
which went before the Privy Council against the
decision of the High Court when the Appellate
Bench was dealing with the first appeal filed against
the decision of the Judge of the -first instance.
The High Court had reversed the decision of the
first Court ; and in considering the proprierty or
. correctness of the said reversing judgment, the
Privy Council observed that the appellate judgment
did not come into close quarters with the judgment
which it reversed. It would thus be s_een that what
(I) (1906) XVI M, L. J. R. 272.
R. Ramacha~iran
~yyar·
v.
· Raf111Jlin11am
C/iittiar
Gaieniragatlksr J.
B. llam.aeltand1an
A...iJ'•'
Y;
Ramf.lltn,am
Gh,rll•r
GaJ•ndragodk., J.
tls
SUPREME COURT REPORTS· r1963]
the Privy Council has said about the requirements
of a proper appellate judgment, cannot assist Mr.
Chatterjee in contending that if a proper judgment
is not writte11 by the lower appt>llate Court in dealing with questions of fact, its conclusions of facts
can be challenged under s. lOO.
That question
must be considered in the light of s. 100 alone.
We must, therefore, hold that Mr. Chatterjee is
not right in contending that because the judgment
of the lower appellate Court was not as elaborate
as that of the trial Judge, or because some of the
reasons given by the trial Judge had not been expressly reversed by the lower appellate Court, the High
Court was entitled to interfere with the conclusions
of the lower appellate Court. The questions which
arose for the decision of the Courts of fact, was a
simple que11tion of fact-was tbe release deed
executed by respondent No. 2 in favour of the
appellants justified by adequate consideration ?
Had respondent No.2 independent advice at the time
when he signed the said document 7 Did he act
bona fide, or was he imposed upon ? -these were the
points that arose between the parties on
their
pleadings. It would be noticed that these points
present pure question of fact and their decision
depended in the present case on appreciating the
orar evidence adduced in support of the rival contentions, documents produced by the parties, thf;~
conduct and surrounding circumstances. In otb\ ...
words, what the Courts of fact wore called upon to
consider and decide were questions of fact in the
light of all relevant evidence.
That being so, we
do not think the High Court was justified in interfering with the finding of fact recorded by the lower
appellate Court in favour of the appellants.
On this view of the matter, it would not be
necessary to consider the further question as to
a s.c . .R.
SUPREME COUH.rt R~PORTS
619
whether· the suit filed by respondent No. I wa.s
within time.
Mr. Chatterjee ~a.a, however, pressed us to
consider the material facts, because he argued that
the finding of the lower appellate Court was patently erroneous and can be regarded evE;in as perverse,
for, according to him, it is not supported by any
evidence and is entirely inconsistent with all the
evidence on record.
We would, the~efore, very·
briefly indicate our conclusion on this point. We
have already noticed that t.he deed of settlement
was executed by respondent No. 2 with the advice
of his uncle and another relative and Sama Ayyar,
a respectable merchant of the locality, played an
important part in the proceedings that led to the
execution of the document. As was to be expected,
respondent No.
2 who has
signed the
document, has supported respondent No. l's case
and so has the uncle of the two respondents. But
the evidence given by them clearly proves that
the c0nduct of the appellants was not at all
unfair or ·dishonest.
Sama Ayyar considered the
matter
and
advised the uncle of the respondents. Respondent No. 2 was told to consult
his mother who was looking after the family
affairs. The mother was consulted and she. agreed.
In fact, it appears th.at there were certain amounts
credited with the firm which were 'Amanat' and
Sama Ayyar told the parties that it was because
the appellants were fair that they disclosed these
amounts and were prepared to pay them to the
respondents, and after taking into account the said
amounts, Rs. 9,165/- & odd were agreed to be paid,
and in faot, the whole of it has been paid.
In the document it is expressly stat¢ that the
two mills belonged to the appeJlants. The recital·
is made in the very fore-front of the docum.ent and
yet the document has been signed by respondent
R. R'amachiindrdn
Ayyar
•••
Ramaling'am Chdttia1
GajMdrag•dkat J.
.i~ll
Jr, .lla...;,,,t..ndran
-'.1''"
...
R•mali~ Oltelti•r
82()
sUPREMEOOURT REPORTS [1963j
No. 2 and has been attested by his unole and another ~
· .witness. The trial Court has left this issue open and
had ordered that the Commissinor should try it.
On the material as it ·stands, there does not
appear to be any justification for the argument
that the mills in fact belonged to the partnership,
a.nd it is extremely unlikely that if the mills had
_/'
belonged to the partnership, Sama Ayyar would not
. have known about it !!,nd ac0ounts of profits of
both the mills would not have been ta.ken before the
release deed was signed.
The trial Court was
impressed by the fact that all the account. books
were not produced for the.inspection of respondent
No, 2 or his uncle at the time when the release deed
was executed, and it has added that the books were
not produce.d even at the trial. Why and under
> ·
what circumstances the appellants refused to produce
the books at the trial, it is unnecessary to enquire ;
but the assumption th11.t the appellants suppressed
the books from respondent No. 2 and his uncle at
the time of the negotiations in 1938 seems to us
to be contrary to the clear admissions made by the
uncle of the respondents. Purushotham Chettiar,
"
the uncle, is a man of substance. He is worth about
Rs. 3 lakhs.
He owns a number of. houses and
lands.
He was· a. Municipal Councillor and an
Hqnorary Magistrate. He was naturally interested
in his nephew and so, he must have , done all that
was necessary to be done before he asked respondent
No, 2 to sign the release deed.
It is easy for ;v
him and respondent No. 2 to come forward now
and make some vague allegations against the
appellants in supporting the case set up by respon-
/
dent No. l. But even he ·clearly admitted that
appellant No. l showed him the ledger in which the
amounts, due to the deceased father of the respondents were disclnsed and said that the mills Ml:
belonged to them and that he would give a Jetter ~ ,,
if the witness wanted to see the bo!Jks of accounts.
3 S.C.R.
SUPREME COURT REPORTS
621
'<
I0
th'dappbea~s thbatt thhe
mills t were
wNork~~l ~t
·
1 am ttram
u t e accoun s were at anm em,
and the specific and clear admission made by
Purushotham Chettiar is that appellant No. 1
was.
prepared
to give
~
letter to enable
the
witness
to
.see · all
the
accounts,
and so, he has admitted that he had no suspicions
against appellant No. 1 at that time. He, however,
did not go to Nannilam or Kumbakona.m to look
· into the account books. In other words, these
admissions clearly show that the appellants were
prepared to allow respondent No. 2 and his uncle
to inspect all the books of account, but they did
not care to do so, and that is because Sama Ayyar
was a trusted person and his decision was accepted
by all the parties. Therefore, the main reason on
which the trial Court based its conclusion and which
presumably appeared to the High Court to be.sound,
is patently inconsistent . wit~ the admissions made
by the uncle of respondents 1 & 2.
·
There is .another point to which the High Court
has referred and which apparently weighed even
with the trial Court and that is that Sama Ayyar
had not. been examined.
We were told that
Sa.ma Ayyar had been cited by respondent No. 1
and was not examined by him.
But apart from
this aspect of the matter, if respondent No. 1, challenged the validity and the binding character· of the
release deed executed by respondent No. 2, the onus
· · was on him to prove his case and sustain the
material allegations in support of it; and so, it
inevitably follows that since Sama Ayyar was alive,
it was for respondent No. 1 to cite him. That being
so, the failure to examine Sama Ayyar can be l,egitimately t~eated as a ground against respondent No.I
and cannot be treated as a ground against the
_ · -i: appellants, and yet, that is precise!~ what the Hi~h
1962..
R. Ram•ch•ndran
r· lt)ryar
v.
Ram.°~fff'~ Chelliar
Gaj1ndra1adkar J.
.
'
622
SUPREM!i: COURT REPORTS [1963]
Cou.~t appears to have done. It would thus ·be clear
R. Ram ,c\a,dran
that the important question of fact on which the
A.1ya•. ·
parties are at issue, was decided by the trial Court
1962.
· v.
.. · in favour of respondent No. 1 and by the lower
R1n1alillga~ C}helil•r
f
appellate Court in avour of the appellants.
As we
Gijini;•gadk;;,J. ·· ·have already indicated, the broad feat.urea of the
evidence support the conclusion of the lower appellate Court and so, Mr.
C~atterjee is not at all
justified in contending that th" finding of the lower
appellate Court is perverse or is not supported by
any evidence.
·
In the result, the appeal must be allowed, the
decree passed by the High Court is set aside and
that .of the appellate Court restored with costs
throughout.
Appeal allowed.
-·-!