V LAKSHMINARAYANA SASTRY Vs. V SITARAMA SASTRY

JUDGEMENT

(1.) This is a petition for leave to appeal to the Supreme Court against the judgment of the Madras High Court in A.S. No. 162 of 1947 on its file which, on the constitution of the Andhra High Court, has been transferred to this Court. The suit was filed for partition of ten items. The defendants pleaded that some items were not joint family properties, while some other items were sold jointly along with the plaintiff. The learned Subordinate Judge held that items 1 to 4 were not joint family properties, that half of the fifth item was in possession of the plaintiff, that the alienation of items 6 and 8 were binding on the plaintiff, that items 7 and 9 were acquired by the Government, that the plaintiff was entitled to half of the compensation amount, and that the plaintiff would be entitled to half the value of the site, item 10, which the learned Subordinate Judge valued as in 1928, when the site was purchased. The learned Judge dismissed the suit in respect of the superstructure. The plaintiff preferred an appeal against the judgment of the learned Subordinate Judge in so far as it went against him. The defendants filed cross-objections.

(2.) In the appeal, the Madras High Court held that the site (item 10) should be valued as in 1945 and not as in 1928 as the learned Subordinate Judge did. In regard to the compensation amount in respect of items 7 and 9, the trial Court had given interest from 1928, whereas the appellate Court gave interest only from 1945. In other respects, the appeal and the memorandum of objections were dismissed. In short, the decree of the trial Court was confirmed except in regard to interest on the compensation amount in respect of items 7 and 9 and the valuation of item 10. The modification in regard to item 10 was in favour of the petitioner and the modification in regard to items 7 and 9 was against him.

(3.) The petitioner in his appeal to the Supreme Court challenges the decree of the High Court in respect of items 1 to 4 and the superstructure an item 10. The modification of the first Court decree against the appellant was in respect of a sum of Rs. 400.00 while that in favour of the appellant was in respect of item 10. The decree of the lower court to that extent was, therefore, not one of affirmance. Item 10 is also the subject-matter of the appeal to the Supreme Court. The market value of item 10 including the superstructure was given in the plaint as a sum of Rs. 4000.00. It is not contended that the value of that item is more than Rs. 10,000.00.If the valuation of items 1 to 4 also is taken into consideration, the value of the entire subject-matter would be more than Rs. 10,000.00. On those facts, the question is whether the appellant would be entitled to leave to appeal to the Supreme Court as a matter of right on the ground that the judgment was not one of affirmance and that the value of the subject-matter of the appeal was more than the prescribed amount. In support of this contention, the learned counsel for the petitioner placed reliance upon the decision of a Full Bench of the Madras High Court in Subba Rao v. Chelamayya, ILR (1953) Mad 1 : (AIR 1952 Mad 771) (A). Rajamannar, C.J., who delivered the judgment of the Full Bench summarised the following principles at page 14 (of ILR Mad) : (at p. 774 of AIR), of the report : "(1) If the judgment or decree of the High Court varies the decision of the lower court in respect of a matter in controversy in the proposed appeal to the Privy Council, then there is a right of appeal not only to the person against whom the variation has been made, but even to the party in whose favour the variation has been made. But it is necessary that the matter in respect of which there has been a variation should be the subject-matter of the proposed appeal to the Privy Council. (2) A matter in controversy cannot be split up or analyzed or dissected into component parts or arbitrary divisions. The true test will be to determine the nature of the dispute or controversy. (3) If the matter in respect of which there has been a variation is not the subject matter of the proposed appeal, then such variation would not confer a right of appeal as regards matters unconnected with the matter in respect of which there has been a variation. Ex hypothesis, this will be the case when the variation has been completely in favour of the applicant. "The Full Bench judgment is binding on us in view of the decision of a Full Bench of this Court in Subbarayudu v. State of Andhra, ILR 1955 Andhra 1 : ((S) AIR 1955 Andhra ,87) (B). The first question is whether the matter in respect of which there is a variation is the subject matter of the proposed appeal to the Supreme Court. Item 10 in respect of which there was a variation in favour of the appellant is part of the subject-matter of the proposed appeal to the Supreme Court. Following the Full Bench decision, we hold that, as the subject matter in respect of which, variation was made was the subject-matter of the proposed appeal, the decree was not one of affirmance within the meaning of Article 133 of the Constitution of India.