Rama and others vs Laxman and others

Mohd. Ahmed Ansari, J.—This is plaintiff''s application for leave to appeal to the Supreme Court against a judgment of this Court, dated 24-7-51 whereby an appeal by Respondents Nos. 1 and 2 to the application was allowed and the plaintiff''s cross appeal dismissed.

The applicants are the sons of Nurandappa, who is Respondent No. 3 to this application and whose father Nilappa had two wives. Respondent No. 3 was born of the senior wife and from the other wile Nilappa had another son called Santappa, who was the father of Respondents 1 and 2. Respondent No. 3 had filed in 1338F. (1928-29) a suit against respondents No, 1 and 2 to recover possession of lands bearing survey Nos. 137 and 138 situated near Naldrug; and got by a compromise half-shares in both the aforesaid lands.

The three sons thereafter filed a suit against respondents Nos. 1 and 2 and the father, respondent No. 3, praying, for the cancellation of the decree and possession over the half-shares of the lands given to respondents Nos. 1 and 2 under the earlier decree. The trial court dismissed the suit; but the lower appellate court allowed the appeal, giving the three sons possession over three-fourths of the half-shares in the aforesaid lands and sustained the decree as regards one-fourth of the half-shares.

The three applicants then filed an appeal in this Court against the dismissal of the claim as regards the father''s share in the aforesaid plots and respondents 1 and 2 filed another appeal against the part of the decree of the appellate court allowing the suit up to the three fourths of the half-shares.

It was held by a judgment against which this application for leave to appeal to the Supreme Court has been filed that the only question in the appeals for consideration was whether the compromise by the father in the earlier suit was binding on the sons, though they were no parties to it; that under the Hindu Law the father had the power to enter into a bona fide compromise in respect of the joint family property; that there being no allegations of the compromise by the father, not being bona fide, nor his motives being fraudulent nor its having been reached with intent to defeat or deprive the sons of their just right, the compromise was binding on the sons and that therefore their suit should be dismissed.

The result was that the appeal by respondents Nos. 1 and 2 was allowed and that of the plaintiffs dismissed.

On 9-8-1951 the present application for leave to appeal to the Supreme Court was filed claiming that the value of the half-shares in the lands in dispute in the later suit was over Rs. 25,000/- at the time of the institution of the suit and was more than Rs. 40,000/- for purposes of appeal to the Supreme Court. By our order of 12-10-1953 we directed the court of the first instance to enquire whether on 15-1-1938, that being the date on which the suit was filed, the valuation of the property was not less than Rs. 20,000/- and further whether on 9-8-1951 that being the date on which the application for leave to appeal was made it is also not less than Rs. 20,000/-.

The court after taking evidence has sent the finding that the market value of the half-shares in the lands in dispute was not less than I. G. Rs. 12.000/- at the time the suit was filed and in the year 1951 was not less than I. G. Rs. 25.000/- and not more than Rs. 30,000/-.

The learned advocate for the applicants has argued that:

(A) The findings of the trial court that the valuation of the property was not less than Rs. 12,000/- at the time when the suit was instituted was incorrect, and

(B) inasmuch as the subject matter of the dispute before the Supreme Court was valued at not less than Rs. 25,000/- the applicants are entitled to a certificate under Art. 133 (1) (b) .

In support of the latter argument, (b) with which we shall deal first, the learned advocate relied on the cases of -- Lalmina Singh Vs. Kumar Kamal Singh, -- ''Naranji v. Jivram Mandan'', AIR 1952 Kut 29 (B); and -- ''Bhimangowda v. Neelagangbee'', decided by a Division Bench of this Court on 8-9-1954 (C).

The learned Judges have held in the unreported case of this Court that if the valuation of the umli-grant, which was not in dispute in the case, were taken into account and though the valuation of the subject matter in dispute in the Court of the first instance was not move than Rs. 20,000/- still it involved directly a claim respecting property of like amount and therefore a certificate under Art. 133 (1) (b) should be issued.

The case is no authority for the proposition that, even where the subject matter of the dispute be less than Rs. 20,000/- in the trial court, and the decree did not directly or indirectly involve property worth Rs. 20,000/- leave to the Supreme Court should be given under Art. 133 (1) (b) because the valuation of the subject matter in dispute has increased for purposes of appeal to Rs. 20,000/-.

Then, in the Patna case, the Seamed Judges granted leave to appeal to the Supreme Court in two cases. One was against an order passed in exercise of the revisional jurisdiction where the respondent admitted the subject-matter of the dispute in the court of the first instance and still in dispute on appeal to the Supreme Court to be not less than Rs. 20,000/-, the Munsif had allowed an application by the judgment-debtor for the cancellation on the ground that there was no subsisting auction sale which had been confined and against this order the Patna High Court had allowed the revision petition against which permission for leave to the Supreme Court was allowed. This part of the authority is not relevant in this case.

The other case in which the learned Judges granted leave to the Supreme Court was a First Appeal. Therein a decree affirming the decree of the lower court was made, whereby the claim by the decree-holder in the revision case for Rs. 7,698 as mesne profits against the same judgment-debtor during the period the judgment-debtor was in possession of the property whose auction sale was subsequently confirmed was allowed. Though the claim for mesne profits was less than Rs. 20,000/- it arose because of the possession of the property whose auction sale had been cancelled by the execution court and which was admitted to be worth Rs. 20,000. In these circumstances the learned Judges in granting leave first observed at p. 452:

The present case is fully covered by Art. 133 (1) (b) of the Constitution as the judgment indirectly involves questions respecting property of the value of not less than Rs. 20,000. Therefore as the judgment is one of affirmation leave can be granted under Cl. (b) if we are satisfied that the appeal involves a substantial question of law.

The aforesaid observation, in our opinion is no authority for construing Art. 133 (1) (b) in such 9 manner as to make the provisions of Art. 133 (1) (a) useless; nor does the decision appear to us to be contrary to the authorities that have held the second paragraph of S. 110, Civil P. C., to (sic) cases other than those governed by the first paragraph of the aforesaid Section.

We shall presently cite these authorities, but there still remains the case of '' AIR 1952 Kutch 29 (B)'', to be dealt with. It was held here that Art. 133 (1) (a) and (b) are distinct and an applicant need satisfy requirements of Cl. (b) as an alternative to restriction in Cl. (a). But in this case the application for leave was refused on the ground that property worth Rs. 20,000/- was not directly or indirectly involved. Therefore the case cannot be cited as an authority for the proposition that if the subject matter of dispute in the court of the first instance be less than Rs. 20,000/-, still certificate can be granted under Art. 133 (1) (b) on the ground that the subject matter in dispute before the Supreme Court amounts to Rs. 20,000/-.

We are of the opinion that there are weighty reasons against granting of certificate in this case under Art. 133 (1) (b) of the Constitution. One of such reasons is found in the judgments of the learned Judges in the case of -- ''Subramania Aiyar v. Sellammal'', AIR 1916 Mad 985 (D), which was approved by Lord Dunedin in -- AIR 1930 44 (Privy Council) . In the Madras case, the amount of the subject matter of the suit in the Court of the first instance was less than Rs. 10,000/-, but the value of the subject matter in dispute in appeal to the Privy Council exceeded the sum. Wallis C. J., rejecting the application observed at p. 985 as follows:

If this contention be accepted, a certificate must be granted in any case in which the amount or value of the subject matter in dispute on appeal to His Majesty in Council is not less than Rs. 10,000''-, whether or not the amount or value of the subject mailer of the suit in the Court of the first instance fell below Rs. 10.000/- and this provision becomes wholly nugatory.

Again Srinivasa Iyengar J., said at pp. 987-88:

..................it is impossible to construe the second clause of S. 110 of the CPC so as to render the first perfectly useless. If the second clause stood by itself, it would be legitimate to construe it in the manner suggested, as the word "involves" is sufficiently wide enough to cover direct adjudication in respect of the subject matter in dispute. In this case we have to take both the clauses together so as to give a meaning to both: ....................

In other words, the learned Judges proceeded on the accepted principle of construing statutes that two provisions regulating the same subject should be construed to be consistent with each other. And if this be true of an ordinary statute, it is equally true of such a ruling instrument as the Constitution. If we are to accept the argument of the learned Advocate of the applicant in this case, it would follow that the words "the amount or value of the subject matter of the dispute in the court of the first instance was not less than twenty thousand" in Art. 133 (1) (a) would become useless.

Then the learned Judges in the Madras case held that if the operation of the decision is confined only to the particular object matter, paragraph 2 of S. 110 did not apply. It is true that the Privy Council in the case of -- AIR 1944 65 (Privy Council) did not expressly approve this part of the judgments but we have other authorities in this country approving these observations.

In '' Kartar Singh Vs. Ramkumar Bhagat and Another, it has been held that second paragraph of S. 110, Civil P. C., which corresponds to Art. 133 (1) (b) of the Constitution is meant to apply only to cases involving some claim or question to or respecting property other than that in respect to which the claim is brought and which may be taken into account therewith in making up the appealable value.

In '' Mangina Venkataswami and Another Vs. Nuli Manikyam and Others, , the argument that in a suit of redemption leave should be granted under Art. 133 (1) (b) as it involved directly or indirectly some claim or question respecting property of the like amount was rejected and the learned Judges held at p. 724:

The only question is whether the plaintiff is bound to redeem the mortgage by paying the amount ascertained by the court below. We therefore hold that the plaintiff cannot take advantage of Art. 133 (1) (b).

''Balarami Reddy v. Masthan Saheb'', AIR 1933 Mad 968 (I), is again a decision in which the subject matter of the dispute was a right to trusteeship which was incapable of valuation, it was held that sub-cl. (a) of Art, 133 (1) of the Constitution did not apply and permission was granted under S. 133 (1) (b) following the decision in '' AIR 1916 Mad 985 (D)''. With great respect we think these authorities are correct.

It is pertinent to note that while in Art. 133 (1) (a) the words "the amount or value of the subject matter of the dispute" are used, in Cl. (b) of the aforesaid Article the words used are "involves directly or indirectly some claim or question respecting property of the like amount or value". If we are to construe the words "involves directly or indirectly" in Art. 133 (1) (b) as authorising appeal in cases where the subject matter of dispute in the Court of the first instance is less than Rs. 20,000/- the words "the amount or value of the subject matter of the dispute in the Court of the first instance" in Art. 133 (1) (a) would become nugatory.

Such a construction of the Constitution cannot be accepted and therefore the proper interpretation of the two clauses is that the words "involves directly or indirectly" in Art. 133 (1) (b) should not be read as including the actual subject matters in dispute in cases, unless they cannot be valued at all.

It is not urged that there is any other matter in this case which cannot be assessed in money or it affects some other property whose valuation is not less than Rs. 20,000/-. Indeed the application for leave has not asked for leave on the latter ground and therefore the argument of the learned advocate of the applicants that he should be given a certificate under Art. 133 (1) (b)because of the valuation of the subject matter in appeal is not less than Rs. 20,000/- even though the valuation may not have been in the Court of the first instance, fails.

Now we come to the contention of the learned advocate for the applicant that the lower court was wrong in holding that the subject matter in dispute in the court of the first instance is not less than I. G. Rs. 12, 000/-.

To begin with the finding is not that the subject matter in dispute is less than Rs. 20,000/- in the court of first instance. There is on the record a sale deed of Azur 17, 1356F. (17-10-1946) whereby 5� acres of adjoining land were sold for H. S. Rs. 11,000/-. There is also on record a decree in a pre-emption suit under which the plaintiff was entitled to get possession of the part sold on payment of Rs. 11,000/-. The half-shares in Survey Nos. 137 and 138 come to about 27 acres, 24� guntas. At the time of the inspection the Judge who was directed to ascertain the value of the subject matter of the suit definitely found that on 15 acres of the land there was wet cultivation irrigated by water from the well situated in the property.

He has further found the land to be fertile black soil capable of producing good crop because of plentiful water. If the price of the adjoining land according to the pre-emption decree be taken as correct the fifteen acres of good land in the properties under dispute would alone fetch Rs. 30,000/-.

This apart there is the oral evidence on behalf of the applicants from which it is established that on the date of the suit in the original court the price of the disputed property would be about Rs. 30,000/-. Bhojraj, P. W. 3 says the price at that time would be Rs. 32,000/-. P. W. 4, the patwari says that if sold 15 years ago, the price would have been Rs. 25,000/- P. W. 5 says the price would have been Rs. 30,000/- to Rs. 35,000/-.

Even allowing for a somewhat over-valuation, it cannot be deduced from their depositions that the properties were valued at less than Rs. 20,000/-, particularly when their depositions are corroborated by the decree in the pre-emption suit, even though it was passed nine years later.

We have calculated the price of only the good lands from among the properties under dispute to be about Rs. 30,000/- and have not taken into consideration the well and the less valuable lands. If these are to be also included, in our view, the value of the entire half-shares in dispute would not be less than Rs. 20,000/-.

The learned advocate for the respondents has argued that the Patwari, P. W. 4, has admitted that 23 acres of his land was transferred for Rs. 13,000/- in 1346F. (1936-37). Be that as it may, we cannot overlook the statement of this witness that the transaction was one of mortgage which though decided against him, is not yet made final. Even the court below has not treated this transaction to be one of self same quality of land as that in dispute, for if this were not so, it would not have held the valuation of the disputed properties to be not less than Rs. 12,000/- I. G., in 1347F., (1937-38).

In these circumstances we hold that the value of the properties at the time of the institution of the suit was not less than Rs. 20,000/- and consequently the applicants are entitled to a certificate for leave to appeal to the Supreme Court under Art. 133 (1) (a) . Accordingly we give them such certificate.