A VENKATASWAMI CHETTIAR Vs. SEKKUTTI PILLAI

JUDGEMENT

(1.) This is an application by the plaintiff for leave to appeal to His Majesty in Council. One Sandaram Pillai died in 1919, leaving his widow the forth defendant and two sons, the first and second defendants. The third defendant is the son of the 1st. The suit was brought on a mortgage bond executed in 1923 by 1 and 4 defendants. The trial Court passed a decree for the full amount claimed, against the executants of the bond, namely, defendants Nos. 1 and 4. As regards defendants Nos.2 and 3, they were held liable only for a fraction of the debt. The plaintiff filed an appeal to the High Court and the result of it was, that the lower Court's decree against defendants Nos. 1 and 4 was confirmed, the 3 defendant's share in the joint property was held liable almost for the full amount claimed, that is to say, so far as he was concerned, the lower Court's decree was practically reversed; lastly, in regard to the 2nd defendant, the High Court confirmed the first Court's decree. The plaintiff's present application is for leave to appeal to His Majesty in Council against the High Court's judgment in so far as his claim against the 2nd defendant was disallowed. The principal question to be determined is, whether the High Court's judgment is an affirming one or not.

(2.) It is not disputed that the requirement of the section as regards the value of the subject matter, both of the suit and of the appeal, is fulfilled. It has been urged that some substantial question of law is involved in the appeal, but we are decidedly of the opinion that is contention cannot prevail. The 2nd defendant was a minor when the debt sued on was incurred by his brother, the first. One of the points urged in the appeal was, that the 2nd defendant should be held to have ratified the transaction after he had become a major. Applying certain well settled legal principles to the facts of the case the High Court rejected that contention and we are clearly of the opinion, as already stated, that the appeal raises no question of law, which can be considered substantial within the meaning of Section 110, Civil Procedure Code.

(3.) The main question then is, whether when the intended appeal is directed as against the portion of the decree which pertains to the 2nd defendant, the High Court's decree should be regarded as one of affirmance or of reversal. The applicant's contention shortly is, that where the decree, as passed, is on its face single, it should always be regarded as one and entire, irrespective of it?s dealing with several subject matters for disposing of claims against several defendants. The argument is put thus; taking the High Court's decree as a whole, has it or has it not varied the lower Court's decree? So far as the 3 defendant is concerned, it has undoubtedly done so. Therefore it is immaterial that the decree as against the 2nd defendant has been confirmed. This contention, as we shall presently show, is hardly sound in principle and would not have been put forward, it is conceded, but for the supposed effect of the decision of the Judicial Committee in Annapurnabai V/s. Ruprao 51 C 969 : 86 Ind. Cas. 504 : 51 I.A 319 : A.I.R. 1935 P.C. 60 (P.C.). As a question of construction, we fail to see why, when there are several decisions in respect of several subject matters, the decree embodying those decisions should, by some faction, be regarded as one and entire. Leaving over the question of parties for the moment, we shall first deal with the contention as it bear on the question of various subject matters. Suppose there is suit filed in respect of ten loans of ten different dates, representing ten different transactions. The trial Court passes a decree in respect of the first loan, but negatives the plaintiff's claim in regard to the other nine alleged loans. The High Court reverses the trial Court's decree as to the first loan but maintains it as to the remaining loans. The argument is that the plaintiff can, taking advantage of the High Court's partial reversal, file an appeal questioning every one of the concurrent findings. Again, let us suppose, that upon a man's death, his heir files a suit for recovery of six items of movable property. The defendant denies that he took possession. The trial Court on evidence finds, that the defendant's case is true in regard to items Nos. 4 to 6 and passes a decree in respect of items Nos. 1 to 3 alone. The High Court reverses the trial Court's decree as to item No. 4 and upholds it as regards the remaining items. The argument is, that the plaintiff can file an appeal for attacking the concurrent findings in respect of items Nos. 5 and 6. The defendant can likewise claim the right of appeal for getting rid of the concurrent findings as regards Nos. 1 to 3. The effect of this contention is that although the items are distinct, the case in regard to each of them is distinct, the findings are distinct, the accident of there being a partial reversal, enables either party to challenge the findings, as to which both the Courts are agreed. This is a startling result, and the question is, whether there is anything in the wording of the section which compels us to uphold contention of this sort.