Kunhunni vs Srivallabhan and Another

Arnold White, C.J.—In this case the appeal was heard by a Bench of two Judges. As the two Judges did not concur in varying or reversing

the decree appealed against, the decree was a (firmed in accordance with the provisions of Section 575 of the Code of Civil Procedure.

On behalf of the respondents a preliminary objection has been taken that, in this state of things no appeal lies under Article 15'' of the Letters

Patent. The precise point was raised before the Calcutta High Court in Sir Gridhariji Tickait v. Purushotum Gossumi ILR 10 C. 814 and that Court

held that in such circumstances an appeal lay under Article 15 of the Letters Patent. I agree with the judgment of the Calcutta High Court and with

the grounds upon which it is based. Apart from authority, I should have been prepared to hold that we have jurisdiction to entertain the appeal.

Assuming the effect of Section 575 of the CPC is to substitute the concurring Judge for the senior Judge as was held in Appaji Bhivrav v. Shivlal

Khubchand ILR 3 B. 204 it seems clear to me that a right of appeal was conferred by Article 15 of the Letters Patent and that that right of appeal

has not been taken away by any of the provisions of Section 575 either read alone or together with the provisions of Article 36 of the Letters

Patent. T think tho preliminary objection should bo overruled.

The question upon which the Judges of the Division Bench differed in opinion was whether the plaintiff''s claim in the present suit is res judicata.

The Subordinate Judge was of opinion that the plaintiff''s claim was res judicata. This was also the view taken by Boddam, J. In my opinion the

claim is not res judicata. The claim is that an. agreement which was entered in to on the 31st October 1889 between the plaintiff in O.S. No. 10 of

1887 (the 1st defendant in the present suit) and the defendant in the suit of 1887, who was the senior Ranee of the Kovilagam, by which the latter

purported to bind herself and her successors to give maintenance to the 1st defendant after he had acceded to tho stanom and until he attained the

3rd stanom was invalid. The plaintiff does not impeach the agreement in so far as it purported to give to the 1st defendant the right to maintenance

up to the time when he acceded to the 5th. or lowest stanom. But he contends that the agreement, in so far as it purports to give to the 1st

defendant the right to maintenance after his accession to the stanom, is not binding on the members of the Kovilagam. The agreement of

compromise was not made the basis of a decree, but it was filed in Court and. the then plaintiff''s suit was ""struck off the file.

In 1892 the 1st defendant instituted a suit (No. 23 of 1892) against the senior Ranee (the defendant in the suit of 1887) in which he claimed

arrears of maintenance as due to him under the agreement. The plaintiff now 1st defendant) had not at that time acceded to the stanom (he did not

accede thereto until July 1895). As regards the claim for maintenance the only claim raised in the suit of 1892 was that arrears which had accrued

due at the date of the suit, that is, before the plaintiff (now 1st defendant) acceded to the stanom, should, be paid to him. In the suit of 1892 the

first issue was--Was the agreement of compromise ""brought about by fraud practised upon the 1st defendant, the senior Ranee?"" The second issue

was -- Is the agreement ""binding upon the other members of the Kovilagam?"" The finding of the Subordinate Judge upon the first issue was that the

agreement was a ""perfectly bona fide transaction."" One of the grounds upon which the compromise had been impeached was that it contained a

provision for paying the then plaintiff (the present first defendant) maintenance while he held the two junior stanoms in the swarupam.

The Subordinate Judge appears to have been satisfied on the evidence that there was no substantial property attached to the junior stanoms,

and he considered it to be a ""moot point whether a Kovilagam is not bound to maintain a member born in it but translated by seniority of age to a

stanom with no tangible property attached to it."" In these special circumstances the Subordinate Judge considered that the exceptional provision in

the compromise was no indication of fraud. The finding of the Subordinate Judge that the transaction was bona fide no doubt involved an

adjudication upon the question whether, for the purposes of the claim then made by the then plaintiff, the agreement was binding on the members of

the Kovilagam. But this was the only question adjudicated upon. In fact, it does not seem to have been suggested that, assuming that the agreement

was not vitiated by fraud practised on the senior Ranee, the provisions of the agreement relating to the then plaintiff''s maintenance were not, in the

state of things which existed at the time the suit was instituted, binding on the members of the Kovilagam. As a matter of fact, the Subordinate

Judge recorded, no finding on the second issue, and he seems only to have considered the issue material with reference to the provisions of the

agreement relating to the debts. This seems to have been the right view. There were two Appeals (Nos. 60 and 132 of 1895) from the decree of

the Subordinate Judge. In Appeal No. 132 of 1895 one of the grounds of appeal is that the Subordinate Judge ought to have held that a

stanomdar is not entitled to be maintained by the Kovilagam. and that the agreement was invalid in so far as it made provision for the plaintiff''s

maintenance after his attaining a stanom. When Appeal No. 132 of 1895 came on for hearing before this court, the court being of opinion that

there was no direct evidence upon the point whether the debt referred to in paragraph 4 of the agreement was incurred for a purpose for which the

family was liable, sent back the third issue, (i.e., whether the debts mentioned in the issue were real debts and binding upon the Kovilagam, for re-

trial.) Upon the further findings this court held that the debt in question was binding on the Kovilagam on the ground that an agreement had been

entered into by all the adult members of the family at the time which treated the debt as a binding debt. This was only an adjudi-cation upon the

question of the validity of the agreement quoad the debt. In my opinion the claim in the present suit is not rendered res judicata by the fact that the

court in adjudicating upon the question used general expressions to the effect that the agreement was binding in all respects and for all purposes;

and it is not rendered res judicato by the fact that certain parties who were aggrieved by the decree of the Subordinate Judge in the suit of 1892,

set up as one of their grounds of appeal that the Subordinate Judge ought to have held in a certain way with reference to a point which it was not

necessary for him to consider, and which, as I understand the case, he never did consider. I think the plea of res judicata fails.

Upon the merits, however, I am of opinion that the provisions of the compromise of the 31st October 1889, with reference to the ma intenance

of the 1st defendant are binding on the members of the family for the reasons stated by this court when dealing with the question of the effect of the

agreement in the compromise which related to the debts of the 1st defendant. The compromise was an arrangement which was assented to by all

the members of the family who were of ago when the compromise was entered into. The compromise was a reasonable one, and both parties

acted under legal advice. The object of the compromise was to settle a dispute which existed in the family as to whether the then plaintiff as the

senior male or the then first defendant as the senior female was entitled to be the Karnavan. The dispute had led to protracted and expensive

litigation, and the compromise was entered into in consideration of the then plaintiff withdrawing his claim. The compromise was for the benefit of

the family and one to which all the members of the family might reasonably be expected to assent.

An objection, however, has been taken on behalf of the plaintiff (the appellant) that it is not competent for us to deal with the case generally

upon the merits and that the only point which is open for us to consider is that upon which Shephard and Boddam, JJ., differed in opinion, viz.,

whether the plaintiff''s claim is res judicata. Unless the point were concluded by authority I should be reluctant to hold that our jurisdiction, as an

appellate tribunal, is limited in this way. There is nothing in Article 15 of the Letters Patent to suggest that it is so limited. The question of the

construction of the article was considered by a Pull Bench of the Allahabad High Court in Ram Dial v. Ram Das ILR 1 A. 181. A majority of the

Judges were of opinion that the word ""wherever"" in the Article (the word in the Charter is ""wherever"" though it is often misprinted as ""whenever"")

meant ""in any case in which"" and not ""on any point on which"" and they held that the appeal was not confined to the point on which the Judges of

the Division Bench differed in opinion. As regards the construction of the article I agree with this decision.

In Shahazadi Hajra Begum v. Khaja Hossein Ali Khan 4 Ben. L.R.A.C. 86a case in which two Judges of a Division Bench differed in opinion

upon a point which they considered to be the only point before them for decision--there is an observation of Sir Barnes Peacock to the effect that

on an appeal under the Letters Patent it is not open to the parties to go into the whole of the case and to raise points which were not raised before

the Judges of the Division Bench. This case is clearly distinguishable from the one now before us. In the Calcutta case the Subordinate Judge held

an endowment to be invalid. The Judges of the Division Bench differed upon the question and the opinion of the senior Judge who considered the

endowment to be valid prevailed. Before the Division Bench tne respondent relied only on one of the grounds upon which the Subordinate Judge

based his decision as to the invalidity of the endowment. In this state of things, on a Letters Patent Appeal, the Court held that the appellant, who

was respondent before the Division Bench, was not at liberty to appeal against the decision of the Division Bench upon a ground which he had not

maintained before that court. This decision is referred to in a case reported at 4 Ben. L.R.A.C. 181 as an authority for the proposition that, in the

case of a Letters Patent Appeal, an appeal only lies in respect of that part of the judgment upon which the Judges differ. To my mind the decision is

not an authority for this proposition. It is only an authority for the proposition that a party may, by reason of the course adopted by him before the

Division Bench, be precluded from relying on any point other than the point upon which the Judges of the Division Bench differed, in the event of a

Letters Patent Appeal. A judgment of the Allahabad High Court in Brij Bhukhum v. Durga Dat ILR 20 A. 258 contains the following passage: ""It

was many years ago decided by the High Court at Calcutta, and rightly in our opinion, that in appeals under the Letters Patent an appellant was not

entitled to be hoard on points which he had not raised before the Judge whose decree ho was appealing against, that is, that it was not intended

that in an appeal under the Letters Patent an appellant should be entitled to make a new case. That is a rule which is approved by all the Judges in

this court, and which certainly has been, and, so long as the Court is constituted as at present, will be followed.

Curiously enough the attention of the court does not seem to have been called to the earlier decision of the Allahabad High Court referred to

above. The case reported at ILR 20 A. 258 was a decision to the effect that in a Letters Patent Appeal an appellant was not entitled to be hoard

on a point which he had not raised before the Judge against whose decree he was appealing. It is clearly distinguishable from the present case. In

the present case the point was raised before the Division Bench. It forms one of the appellant''s grounds of appeal. It was not argued before the

Division Bench, because the Judges of that Bench were divided in opinion on the question whether the claim of the plaintiff (the appellant) was res

judicata. Moreover, the present case is not one in which an appellant seeks to raise a point which was not that on which the Judges of the Division

Bench differed in opinion, but a case in which a respondent in support of a decree in his favor relies upon a ground of defence which was not

considered by the Judges of the Division Bench.

The present appeal is not governed by the provisions of the Civil Procedure Code, but there is no reason why, in dealing with the objection

taken by the appellant, we should not apply the principle upon which Section 561 of the CPC is based.

I think the objection which has been taken to our jurisdiction cannot be sustained and that it should be overruled.

In the result the appeal must be dismissed. The suit will be dismissed, and the appellant must pay the respondent''s eosts throughout....

The two respondents will be paid their costs in proportion to their respective interests.

Subrahmania Aiyar, J.

I concur.

Davies, J.

I take Mr. Justice Boddam''s view that the matter is res judicata, but it is unnecessary to discuss this point, as I concur on all the other points in

the judgment of the learned Chief Justice, which leads to the same result--the dismissal of the appeal.