Babu Brijmohan Singh vs Choudhury Bhuneshwar Prasad Singh and Others

Fazl Ali, J.—This is an application for leave to appeal to His Majesty in Council against a decree passed by this Court reversing the decree of the trial Court and dismissing the plaintiff''s suit under the following circumstances

One Tribeni Singh had died on 13th January 1916 leaving behind him three widows including Mt. Dhana Kuer. In February 1916 two of the widows (who will hereafter be referred to as the senior widows) applied for the registration of the name of Bhuneshwar Prasad Singh, (respondent l) in the land registration office on the allegation that he had been adopted by Tribeni Singh just before his death. The application was opposed by Dhana Kuer who alleged that the respondent had never been adopted.

In July 1916 the senior widows withdrew the application which they had made in the land registration office mainly on the ground that in a summary proceeding the claim of adoption could not be properly adjudicated. The land registration officer, however, held upon the materials before him that there had been no adoption and ordered the registration of all the three widows including Dhana Kuer as the legal heirs of their deceased husband. Thereafter the three widows continued to be in joint possession of the estate of Tribeni Singh until 1928 when the two senior widows died and Mt. Dhana Kuar was left in sole possession of the estate. Meanwhile the respondent had attained majority and on 25th February 1929 he brought a suit to recover possession of the estate on the ground that he was the adopted son of Tribeni Singh. The suit was decreed and the Court declared on 4th June 1932 that the appellant was the duly adopted son of Tribeni Singh.

In 1935 the petitioner instituted the suit which has given rise to the present application to recover from respondent 1 a sum of Rs. 11,956-9-0 on the basis of three mortgage bonds executed by Dhana Kuer in favour of the petitioner on 12th January 1929, 21st March 1929 and 5th June 1929, respectively. Respondent 1 attacked the bonds on the ground'' that two of them at least were affected, by the rule of lis pendens and also on the grounds that Dhana Kuer was not entitled to alienate property which did not belong to her and that at any rate there was no legal necessity to justify her raising the loans secured by the bonds in question. He also sot up a number of other pleas.

The learned subordinate Judge of Shahabad in whose Court the suit was instituted held that Dhana Kuer had no title to alienate the property of respondent 1 but he passed a money decree for a sum of Rs. 9141-5-0 with future interest at six per cent, per annum and costs of the suit amounting to Rs. 1131-6-0 with the direction that the amounts aforesaid were to be realized from the estate of Tribeni Singh in the hands of the respondent. The respondent thereupon preferred an appeal to the High Court and this appeal was ultimately allowed and the plaintiff''s suit was dismissed in its entirety. The plaintiff has now preferred the present application for leave to appeal to His Majesty in Council.

The first point raised on behalf of the applicant is that he is entitled to leave to appeal as a matter of right because not only was the value of the suit over Rs. 10,000 but the value of the subject-matter in dispute on appeal to the Privy Council must also be held to be above Rs. 10,000. Respondent 1 on the other hand, though he admits that the value of the subject-matter of the suit is above Rs. 10,000 contends that the value of the subject-matter of dispute in appeal is less than that sum and therefore the second condition prescribed by Section 110 is not satisfied. The principal point which is to be decided is whether the value of the subject-matter of the appeal is more or less than Rs. 10,000. The decision of this question depends upon whether the petitioners who were the plaintiffs in the suit are entitled to add to the amount decreed in their favour by the Court of first instance interest on the principal sum at the rate allowed by that Court up to the date of the decree of the High Court.

The Court of first instance, as I have already said, had passed a decree for Rs. 9141-5-0 only. The petitioners'' contention is that if to this amount is added the total amount of interest calculated at six per cent, per annum as decreed by the learned subordinate Judge up to the date of the decree of the High Court, the value of the subject-matter of the appeal becomes Rs. 10,423 odd. Respondent 1 on the other hand contends that the interest in question cannot be added at all in Valuing the subject-matter of the appeal the value of which cannot in any case exceed Rs. 9141-5-0 which was the sum decreed by the Court of first instance.

It is well settled that where the plaintiff''s suit is decreed by the High Court and the defendant wishes to appeal against the whole decree, the value of the defendant''s appeal is the principal sum decreed together with interest awarded on the principal sum up to the date of the decree of the High Court.

This was clearly pointed out by the Privy Council in Gooroopersad Khoond v. Juggutchhunder (80) 8 M.I.A. 166. In that case the petitioner for leave to appeal to the Privy Council had been directed to pay Rs. 5000 with interest by the final decree of the Sudder Court. The petitioner alleged that if the interest awarded on the principal money was calculated at 12 per cent, per annum from the time it became due and the amount so calculated was added to the principal, the aggregate sum without costs would amount to a sum beyond Rs. 10,000. Turner, L.J., accepted the contention and while granting special leave in the case made the following observations:

Now where the appeal is from the whole decree and the decree has given an amount including interest up to the date or the decree which exceeds Rs. 10,000 it is clear that the matter which is in dispute in the appeal must exceed the sum of Rs. 10,000 for the question to be tried on the appeal must be whether the decree is or is not right, that is to say, whether the decree has or has not properly ordered payment of a sum exceeding Rs. 10,000. Where therefore at the date of the judgment the sum which is recoverable under the decree of the Sudder Court is an amount exceeding Rs. 10,000 then in their Lordships'' judgment the case clearly falls within the terms of the order in Council.

The question which is to be considered in this case is whether the same rule will apply to a case where the plaintiff proposes to appeal from an appellate decree of reversal dismissing his claim either in whole or in part. The respondent''s contention is that the rule will not apply to a plaintiff''s appeal and in support of his contention he refers us to Sahu Ram Kumar Vs. Mohammad Yakub and Another, and Venkata Thirisami Naidu v. Appaswami Naidu AIR 1933 Mad. 401. In both these cases it was held that the plaintiff could not bring the value of his appeal above the statutory limit by adding to the amount decreed to him by the Court of first instance the interest at the rata given by that Court. These cases are of some importance because the facts on which they were decided bear some resemblance to the facts of the present case. In the first case the plaintiff had sued to recover a sum of Rs. 9562 odd principal and Rs. 1243 odd interest. The Court of first instance passed a decree for Rs. 8281 odd with interest at 6 per cent, per annum from the date of the suit till the date of realization. The defendant appealed to the High Court and that Court decreed the appeal and dismissed the plaintiff''s suit in toto.

The plaintiff in his application for leave to appeal contended that though the Court of first instance had passed a decree for Rs. 8281 only, the value of the subject-matter of dispute in the proposed appeal to the Privy Council was over Rs. 10,000 and to arrive at this sum he claimed to be entitled to add to the sum decreed by the trial Court such interest as had been decreed by that Court up to the date of the decision of the appeal by the High Court. The contention was however not accepted and it was held that interest could not be included in valuing the subject-matter of appeal.

In the second case the Court of first instance had passed a decree for Rs. 3859 odd in favour of the plaintiff. The defendant thereupon appealed to the High Court and the plaintiffs presented a memorandum of cross-objection claiming a certain sum which had been disallowed by the trial Court. The High Court however disallowed the plaintiffs'' claim in its entirety and further found that they were liable to pay to the defendants a sum of Rs. 173 odd. The plaintiffs while pressing their application for leave to appeal contended that the value of the appeal must be the total of the three sums specified above plus Rs. 5072 odd as representing the interest up to the date of the decree of the High Court.

This contention however was negatived on the ground that interest accruing subsequent to the institution of the suit cannot La included in ascertaining the amount or value of the subject-matter in dispute on appeal to His Majesty in Council. The learned Judges who decided the case pointed out that interest accruing subsequent to the institution of the suit cannot be added, because such interest cannot be claimed by the plaintiff as a matter of right, but u/s 34, Civil P.C., it is left to the Court if it thinks fit to order interest at such rate as it deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree.

Mr. Nirsu Narayan Sinha, who appears for the applicant, contends that these cases have not been correctly decided and relies strongly on the decision of this Court in Ramyad Singh v. Rambilas Singh AIR 1921 Pat. 229. In that case a suit had been instituted to enforce a mortgage bond for its. 3000. The subordinate Judge passed a decree for that amount together with interest at the rate mentioned in the bond up to the expiry of the period of grace. He also ordered that after the expiry of the period of grace, interest should run on the decretal amount at the rate of six per cent, per annum. The defendant appealed to the High Court and the appeal eventually succeeded and the plaintiff''s suit was dismissed.

The plaintiffs then applied for leave to appeal to His-Majesty in Council and pointed out that if the interest up to the date of the High Court''s decree at the rate which had been allowed by the decree of the trial Court was added to the decretal amount, it would bring the amount in dispute to over Rs. 10,000. This contention appears not to have been challenged by the opposite party and Dawson Miller C.J. observed in the course of his judgment that the amount of the subject-matter of dispute in appeal to His Majesty in Council was clearly over Rs. 10,000. The application for leave to appeal was however rejected, because the value of the subject-matter of the suit in the trial Court was under Rs. 10,000.

Now strictly speaking this case cannot be of much assistance to the petitioner, because the point which is now before us was not argued at all before the learned Judges who decided it and they were evidently not called upon to decide it, because the application failed on another ground. At the same time I think that the observations made by Dawson Miller C.J. though made casually, cannot be ignored and the matter requires careful examination.

So far as the value of the suit is concerned, there can be little difficulty in determining it. It is well settled now that the material date for determining such value is the date of the institution of the suit. It follows therefore that any interest which might accrue after the date of the institution of the suit cannot be taken into consideration in valuing it. Again the subject-matter of the suit has to be ordinarily valued according to the claim put forward by the plaintiff irrespective of what the defence may be. The position however is different when one has to value the subject-matter of the appeal before the Privy Council, because that value will often depend upon whether the appeal is preferred by the plaintiff or by the defendant and on the nature of the decree against which appeal is going to be preferred. As was observed by Lord Chelmsford in a well known case

the judgment is to be looked at as it affects the interest of the party who is prejudiced by it and who seeks to relieve himself from it by appealing; if there is to be a limit of the value at all, that seems evidently the right principle on which to measure it. The proper measure of value for determining the question of the right of appeal is the value of the judgment.

Two things, however, have to be borne in mind firstly, that for the purpose of valuing the appeal the material date is the date of the decree against which the appeal is to be made Surendra Nath v. Dwarka Nath AIR 1917 Cal. 496 and Raoji Bhikaji v. Laxmibai AIR 1920 Bom. 418 and secondly that the value of the subject-matter of appeal may in many cases be quite different from the value of the subject-matter of the suit. The crucial point then to be decided is what is going to be the subject-matter of dispute in the appeal and then find out its value. If the dispute between the parties is about a money claim, then whether the appeal is to be preferred by the plaintiff or by the defendant, all that we have to find out is what is the amount or value of the claim which will be in dispute in appeal. If we bear this in mind then there will be no difficulty in answering the question which we are called upon to answer in the present case, namely whether the interest for the period between the date of the institution of the suit and the date of the High Court decree is to be taken into account in valuing the subject-matter of dispute in appeal.

In my opinion the answer to this question is that in some cases it will be included, in others it will not. This may at first sight appear to be illogical, but in view of the authorities, which must guide us in the matter, I think that that is the true legal position. If the decree directs the defendant to pay interest from the date of the institution of the suit to the date of the decree, such interest being made part of the decretal amount, then if the defendant appeals against the whole decree, the interest being a part of the decree must be taken into consideration in determining the value of the subject-matter of the dispute in appeal. The defendant in such cases appeals against the entire amount for which the decree has been passed including the interest between the date of the institution of the suit and the date of the appellate decree. Again, where the appeal is directed only against the interest decreed, the defendant''s case being, that no interest should have been allowed at all, it is clear that in that case the amount of interest will determine the value of the appeal.

The present case, however, is quite different. Here although the plaintiff claimed more than Rs. 10,000 in the suit, the trial Court gave him a decree for Rs. 9141-5-0 only. The plaintiff might have appealed in regard to the balance, but he did not. The defendant only appealed, his case being that the trial Court should have passed no decree at all in favour of the plaintiff.

Ultimately, the defendant''s appeal was allowed and the plaintiffs'' claim was dismissed in its entirety. Mr. Nirsu Narayan Sinha contends that the point which will be raised on behalf of the plaintiff in appeal to the Privy Council will be that he is not merely entitled to Rs. 9141-5-0 but also to the future interest which had been allowed by the trial Court in his favour and so the value of the appeal must be determined with reference to the total loss which he has suffered by the decree of the trial Court having been reversed, he having lost not only Rs. 9141-5-0 but also the amount of interest which was payable on this amount according to the decree of the trial Court up to the date of the decree of the High Court. This is a plausible argument; but the same argument must apply to the costs which had been decreed by the trial Court.

Mr. Nirsu Narayan Sinha, however, concedes that the costs cannot be added because, the authorities have uniformly laid down that they cannot be included in estimating, the appealable sum. The reason why the costs are not added is that they are within the discretion of the Court and therefore strictly speaking not a part of the claim, but, something consequently to or dependent upon the claim being proved. It seems to me that the same rule must apply to "interest" for the period subsequent to the institution of the suit. u/s 34, Civil P.C., it has been left to the discretion of the Court if it thinks fit to order interest at such rates as it may deem reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree. When the interest is directly sued for, it is obviously the subject-matter of the claim; but if it is not directly sued for, and may be allowed only if the claim is allowed, and may also be disallowed, it is, to borrow the words used by the Privy Council in AIR 1930 44 (Privy Council) , "something attached to the subject claimed and not what is the subject of a direct claim" because "here there is no direct action for the interest, but only for the thing that will bring in the interest."

It is to be remembered that in the present case the decree of this Court did not deal specifically with the question of interest for the period after the institution of the suit. It merely dismissed the plaintiffs'' claim with the result that the interest also automatically disappeared. As the High Court decree declares the plaintiff to be entitled to no sum, the utmost they can claim in appeal to the Privy Council is the restoration of the decree of the trial Court and so the value of the appeal cannot be more than Rs. 9141-5-0. This amount cannot be enhanced by adding either the cost or the interest directed to be paid under the decree. It is on this principle that the plaintiff when he has to appeal is not required to pay court-fee on the interest subsequent to the institution of the suit.

It may be that if the interest was not in the discretion of the Court, but was payable under some law or statute, as was the case in Bank of New South Wales v. William Owston (1879) 4 A.C. 270, different considerations might arise, but we are not concerned here with a case of that description. Thus, although the argument put forward by Mr. Nirsu Narayan Sinha is a plausible one, yet having regard to the state of the present authorities, I am inclined to hold that the petitioner is not entitled to include interest in valuing his appeal to the Privy Council. It follows therefore that the present case does not fulfil the second condition prescribed by Section 110 which requires that the amount or value of the subject-matter in dispute of the appeal to the Privy Council must be Rs. 10,000 or upwards.

Mr. Nirsu Narayan Sinha also contended that the decree of the High Court involves at least indirectly a question respecting property of more than Rs. 10,000, and he founded this argument on certain facts which have been set out in paras. 8,9 and 10 of his petition. It appears that Mt. Dhana Kuer had also given to the plaintiff in mukarari lease 12 bighas of land out of the lands appertaining to the estate of her late husband for a consideration of Rs. 7200. It is argued by Mr. Nirsu Narayan Sinha that if the judgment of the High Court is allowed to stand, it will prejudice his client''s title in regard to this property also and therefore the value of this property must be taken into consideration in determining the value of the appeal.

This contention, however, admits of a very simple answer. Mr. Nirsu Narayan Sinha concedes that what prejudices his client is the decision that Dhana Kuer could not alienate any of the properties of which the respondent was the real owner, but that point can no longer be the subject-matter of appeal to the Privy Council. It may be recalled here that the petitioner, though he based his suit on three mortgage bonds, was granted a money decree only by the trial Court. The fact that he did not appeal against the decree of the trial Court shows that he was satisfied with the money decree. The question therefore with regard to which there is at present a controversy between the parties is not whether Dhana Kuer was entitled to transfer the respondent''s property, but whether the plaintiff can recover money from the defendant on certain bonds which were not executed by him. This being the main point in the decision of this Court, it cannot obviously prejudice the parties in any dispute in regard to the mukarrari lease.

The last contention raised by Mr. Nirsu Narayan Sinha was that leave to appeal should be granted to the petitioner under Clause (c) of Section 109, Civil P.C., inasmuch as the present case involves a question of great public importance. He points out that in numerous cases Hindu widows have to make alienations before the adoption takes place and he contends that the present decision which lays down that such alienations are not binding upon an adopted son must affect the Hindu public in general. This argument, however, overlooks the fact that here the alienations were made after the adoption and ignoring the right of the adopted son. As I have already said, Mt. Dhana Kuer''s contention in the land registration department was that there was no adoption and it is not disputed that all the mortgage deeds upon which the suit was based had been executed after the adoption and two of them were executed after the respondent had instituted a suit to establish that he was the adopted son of Tribeni Singh.

In my opinion this case does not involve any question of great public or private importance or any such question as would justify us in certifying it to be fit appeal u/s 109, Clause (c), Civil P.C.

As leave cannot be granted in this ease either u/s 110 or Section 109, I would dismiss this application with costs and assess the hearing fee in this Court at five gold mohurs.

Harries C.J.

I entirely agree.

Manohar Lall J.

I agree.