BIBHUTI BHUSAN DUTTA Vs. SREEPATI DUTTA

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council from a decree made by this Court on a first appeal. The suit was for partition of certain properties the plaintiff's claiming a half share therein, and also for accounts. The Subordinate Judge made a decree declaring in effect the plaintiffs share to be one-third, after excluding certain properties which he found had been already partitioned, and also ordering accounts for a certain period. Of the properties in respect of which he decreed partition, he ordered a few items to be kept joint and the others he ordered to be partitioned by metes and bounds. This Court, on an appeal by plaintiff 1 and a cross-objection by plaintiff 2, varied the decree of the trial Court by dismissing the appeal save and except that it ordered a partition by metes and bounds of all the properties found to be joint. Plaintiff 1 is the applicant for leave.

(2.) The appellant relies upon the decision of the Judicial Committee in Annapurnabai v. Ruprao 1925 PC 60 for his contention that the decree of this Court is not a decree of affirmance and so it is not necessary for him to show that the appeal involves some substantial question of law and that he is entitled to leave as a matter of course inasmuch as the subject-matter of the suit as also of the intended appeal is over Rs. 10,000 in value. There is undoubtedly considerable force in this contention if the arguments of the petitioner's counsel in that case is to be taken as having been accepted by their Lordship in its entirety in the order that was made. This Court however has refused, on the strength of Annapurnabai v. Ruprao 1925 PC 60, to break away from a long course of decisions of Courts in India which have firmly laid down the principle that when the appellate Court modifies the original decree upon a single point and that completely in the applicant's favour so that he has no further grievance in that matter, he cannot, because of that modification, have a right to an appeal on other points on which the Courts have concurred, without showing a substantial question of law. The enormity of the opposite view is so very great that a far more clear and express pronouncement of the Judicial Committee would be necessary to uphold it. Annapurnabai v. Ruprao 1925 PC 60 has been referred to in some of the decisions of the Patna and the Madras High Courts as laying down that unless the decree from which the appeal is sought to be taken is nothing but a decree which in its entirely affirms the decree of the Court immediately below it, leave cannot be withheld if the requirement as to value is satisfied, or in other words that the incident as to affirmance is to be entirely ignored as soon as any variation is found: see Ali Zamin V/s. Mohammad Akbar Ali Khan 1928 Pat 609, Jamna Prasad V/s. Jagannath Prasad 1929 Pat 561, Perichiappa Chettiar V/s. Nachiappan 1932 Mad 46 and Homeshwar Singh v. Kameshwar Singh 1933 Pat 262.

(3.) Now, in Sreenath Ray Bahadur V/s. Secy, of State (1904) 8 CWN 294 the Judge below had given an award of compensation at a certain figure and the High Court increased that amount. The applicant for leave wanted to go to the Privy Council so that the amount might be further increased. For this excess which was to be debated before the Privy Council, the two Courts below were at one. It was held that being the position the decree to be appealed from was one of affirmance, or in other words that Section 110 of the Code was to be construed with reference to the subject-matter in dispute in appeal to the Privy Council. In Annapurnabai v. Ruprao 1925 PC 60 the position was that the person claiming to have been adopted by the senior widow brought a suit claiming the property. The junior widow and the person whom she said she had adopted resisted the claim and the former claimed maintenance at Rs. 3,000 per annum. The first Court decided in favour of the plaintiff upon the question of adoption but decreed to the widow maintenance at the rate of Rs. 800 per annum. The appellate Court increased the maintenance to Rs. 1,200 per annum, but in all other respects affirmed the decree of the first Court. The junior widow and her alleged adopted son applied for leave to appeal to the Privy Council. If Sreenath Ray Bahadur V/s. Secy, of State (1904) 8 CWN 294 was to be applied the only matter of substance in the proposed appeal to the Privy Council, namely the excess amount of maintenance that was being claimed, being one in respect of which both the Court had been in agreement the decree sought to be appealed from was to be regarded as a decree of affirmance. The Privy Council appears to have been of opinion that it was not to be so regarded. The particular application made in Sreenath Ray Bahadur V/s. Secy, of State (1904) 8 CWN 294 of the principle that in applying Section 110 of the Code you have to have regard to the subject-matter of dispute in the appeal to the Privy Council must be taken to have been overruled. But does Annapurnabai V/s. Ruprao 1925 PC 60 go any further than that and does it lay down that in every case where the decree of the High Court is not a mere decree dismissing the appeal you are to take it that it is not a decree of affirmance so as to take the case out of para. 3 of that section and bring it within the first? Rankin, C.J., in Narendra Lal V/s. Gopendra Lal 1927 Cal 543, was not prepared to hold on the authority of Annapurnabai V/s. Ruprao 1925 PC 60 that such a position could be affirmed. He observed: It appears to me that the case of Annapurnabai V/s. Ruprao 1925 PC 60 is not in itself a sufficient authority to justify this Court in abandoning the principle which it has with other High Courts acted upon; that is to say, I do not think that it shows that it is an erroneous view that we have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council.