9911796707
TMI Blog1962 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... he father of appellant No, 2 Vanchinatha Ayyar, Rams Ayyar and Lakshamanan Chettier. This partnership worked two mills in Kasha Chidambaram. Lakshmanan Chattier is the father of respondent No. 1, the plaintiff, and respondent No. 2, defendant No. 3. After the death of V. V. Kuppuswami Ayyar, the second appellant took his place in the partnership. Rama Ayyar retired from the partnership in September, 1936. Lakshmanan Chettier died on June 10,1936, so that after the retirement of Rama Ayyar, the partnership continued to be managed by the two appellants as partners. On September 26, 1938, defendant No. 3 executed a release deed in favour of the two appellants. Under this document ₹ 9,165/- were agreed to be paid by the appellants in lieu of the amount due to the share of Lakshmanan Chettiar. out of this amount, ₹ 8,165/- were paid to respondent No. 2 on the date when the document was executed and ₹ 1,000/- were kept with the appellants in order to be paid to respondent No. 1 'Who is the present plaintiff, on his attaining majority. Respondent No. 2 had attained majority on August 12, 1938, whereas respondent No. 1 attained '.majority on January 17, 1947. It a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a result of the intervention of respectable people, two of whom were closely related to the family of respondents 1 2. Their uncle, Santhonam Chettiar, and Chekka Chettiar who is the son of the sister of their father's mother, took active part in the settlement of the dispute and these two gentlemen consulted Sama Ayyar, a respectable merchant of the place in whom all the parties had full confidence, and it was virtually as a result of the advice tended by Sama Ayyar that the terms of the release deed were settled. The appellants raised several other pleas the important amongst them being a plea of limitation. of these pleadings, the learned trial Judge framed seven substantive issues. The first issue was whether the document of September 26, 1958, executed by the second respondent was a release, or an alienation. or a discharge? The second issue was in regard to limitation and the third issue was whether as an alienation, the said document would bind respondent No. 1 ? By issue No. 6, the question raised was whether respondent No. 1 was entitled to question the release deed? All the issues thus framed answered by the trial Judge in favour of respondent No. 1, and against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint. Both these applications were dismissed. The dismissal of his suit took respondents No.1 to the High Court in second appeal and the High Court has allowed the appeal, because it was disposed to accept the find' of the trial Court that the impugned transaction was not binding against respondent No.1. It appears that the learned Judge who heared the second appeal was taken through the evidence and though he has not recorded his findings on the evidence as such, he has indicated his occurence with the conclusions of the trial Court. He referred to the dispute about the two mills and to the fact that Sama Ayyar bad not been examined. He thought the uncle of the respondents was a respectable witness and that there was no reason to disbelieve his evidence and he held that accounts had not been examined at this time when the impugned settlement was reached. It is on these broad grounds that he allowed the appeal and restored the decree passed by the trial Court. On the question of limitation, the learned Judge held that s.7 of the Limitation Act was not a bar the suit, because by his present action respondent No-1 was not in terms asking for accounts as such, but he was claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure. He says that if the lower appellate Court wanted to interfere with the trial Court's conclusions of fact, it was necessary that all the reasons given by the trial Court should have been examined and the whole of the evidence set out by the trial Court in its judgment should have been taken into account. Since the judgment of the lower appellate Court is not elaborate and some of the grounds set out in the trial Court's judgment have not been examined, that constitutes an error or defect in the procedure and so, the High Court was entitled to correct that error or defect, because the said error or defect affected the decision of the merits in the ease. The judgment of the appeal Court, Mr. Chatterjee contends, Must come into close quarters with the judgment of the trial Court 'and meet the reasoning given there in, before it can be treated as conclusive between the parties for the purposes of s. 100. It is well-known that as early as 1890, the Privy Council had occasion to consider this aspect of the matter in Mussummat Durge Choudhrain V. Jawahir Singh Choudhri.(1). In that ease, it was urged before the Privy Council, relying upon the decision of the Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as a defect in procedure; if in dealing with questions of fact, the lower appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate Court fails to consider an issue which had been tried and found upon by the trial Court and proceeds to reverse the trial Court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate Court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new' plea of fact, or makes out a new case for a party, that may, in some cases, be mid to amount to a defect or error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court, however erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council observed, however gross or inexcusable the error may seem to be there is no jurisdiction under section 100 to correct that error. Mr. Chatterjee, however, has purported to base his content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council's decision in the case of Mst. Durga Chodhrain Therefore, we are inclined to treat this decision supporting the proposition that the High Court can interfere with the conclusion of fact recorded by the lower appellate Court if the said conclusion is not supported by any evidence. In Shivabasava Kom Amingavda v. Sangappa Bin Amingavda (1), the Privy Council had occasion to consider the scope of the expression substantial defect or error of procedure under a. 100. In that case , the validity of the decision of the High Court in second appeal was challenged on the ground that the High Court had interfered with the finding of fact recorded by the lower appellate Court. This contention was rejected by the Privy Council, because it took the view that the lower appellate Court had disposed of the suit upon a case not raised by the parties,. and to which the evidence had not been directed. and so, the course thus adopted by the lower appellate Court amounted to a substantial error or defect of procedure within the meaning of s. 584. The Privy Council has also added that the High Court's conclusion was right that the finding of fact recorded by the lower appellate Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council observed that the appellate judgment did not come into close quarters with the judgment which it reversed. It would thus be seen that what the Privy Council has said about the requirements of a proper appellate judgment, cannot assist Mr.' Chatterjee in contending that if a proper judgment is not written by the lower appellate Court in dealing with questions of fact, its conclusions of facts can be challenged under s. 100. That question must be considered in the light of s. 1 00 alone. We must, therefore, hold that Mr. Chatterjee is not right in contending that,.,because the judgment of the lower appellate Court was not as elaborate as that of the trial Judge, or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate Court, the High Court was entitled to interfere with the conclusions of the lower appellate Court. The questions which srose for the decision of the Courts of fact, was a simple question of fact-was the release deed executed by respondent No. 2 in favour of the appellants justified by adequate consideration ? Had respondent No.2 independent advice at the time when he signed the said document I Did he act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the document it is expressly stated that the two mills belonged to the appellants. The recital is made in the very fore-front of the document and yet the document has been signed by respondent No. 2 and has been attested by his uncle and another witness. The trial Court has left this issue open and had ordered that the' Commissioner should try it. On the material as it stands, there does not appear to be any justification for the argument that the mills in fact belonged to the partnership, and it is extremely unlikely that if the mills had belonged to the partnership, Sama Ayyar would not have known about it and accounts of profits of both the mills would not have been taken before the release deed was signed. The trial Court was impressed by the fact that all the account-books were not produced for the inspection of respondent No, 2 or his uncle at the time when the release deed was executed, and it has added that the books were not produced even at the trial. Why and under what circumstances the appellants refused to produce the books at the trial, it is unnecessary to enquire ; but the assumption that the appellants suppressed the books from respondent No. 2 and his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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