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TMI Blog1930 (10) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the right of appeal given by Section 109(a), must; be strictly construed. In the present case prima facie there is no difficulty in respect of the first exception, as admittedly the amount of the subject matter of the suit in the Court of first instance and in the proposed appeal is over Rs. 10,000. 3. It is not suggested that the proposed appeal involves any substantial question of law; but the petitioner will be entitled to appeal if the decree of the High Court did not affirm the decision of the Subordinate Judge. At one time it was held by the Calcutta High Court that, even when a decree of that Court had modified a decree of the lower Court on appeal it was an affirming decree for the purpose of Section 110, Civil P.C., so far as it agreed with the decision of the lower Court, and that, if the proposed appeal to His Majesty in Council referred only to that part of the decree, some substantial question of law was necessary to give a right of appeal. That view, which it may be pointed out involved the implication of words not found in Section 110, was taken in Rajah Sree Nath Roy Bahadur v. Secy. of State, [1904] 8 C.W.N. 294 and Annapurna Rai v. Ruprao, but has been shown to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt application under Section 109, Clause (a), and Section 110, Civil P.C., for the necessary certificate. 6. He instituted the Original Suit No. 2 of 1924 in the Court of the Subordinate Judge of Sivaganga for a decree directing defendant 1, his agent, to render accounts for the period of his agency in the plaintiff's firm at Soomangai in Burma and to hand over to the plaintiff all documents relating to the agency and for the recovery of the amount found due on taking accounts. He valued the claim in the suit at Rs. 40,000. In pursuance of a preliminary decree passed by the Court, accounts were taken by a commissioner and after hearing the objections filed by the parties to the commissioner's report the trial Court, on 28th November 1927, passed a decree in favour of the plaintiff for a sum of Rs. 5,682-6-11 with interest thereon, to be recovered from, the assets of the deceased defendant 1 (defendant 1 having died in the meantime and defendant 2 having been brought on as the legal representative of defendant 1 as defendant 1's adopted son). Against that decree, defendant 2 preferred appeal No. 10 of 1928 to the High Court and the plaintiff preferred a memorandum of obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court: one reported in Ramanathan Chetti v. Subramanian Chetti A.I.R. 1926 Mad. 1024 and the other an unreported one of a Bench of this Court in C.M.P. 1674 of 1928. We were also referred to a decision of the Calcutta High Court reported in Narendra v. Gopendra AIR1927Cal543 and another of the Bombay High Court reported in Kapurji v. Pannaji A.I.R. 1929 Bom. 359. 9. On the other hand we were referred to a decision of the Privy Council reported in Annapurabai v. Ruprao. The question before the Privy Council arose in this way. The plaintiff instituted a suit in the District Court of Amraoti against the defendants for possession of half of the estate of a deceased person alleging that he had been adopted by the senior widow of the deceased and denying the alleged adoption of defendant 2, defendant 1 being the junior widow of the deceased. The trial Court held that the plaintiff's adoption was proved, that the alleged adoption of defendant 2 was not proved, but held that the plaintiff was bound to provide maintenance for defendant 1 at the rate of Rs. 800 per annum, which was to be a charge upon the estate. On appeal the decree of the trial Court was modified by increasing the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal to the Privy Council, in so far as these items are concerned, the value of these items should not be taken into account in considering the valuation of the subject matter of the appeal to the Privy Council, and that only the amounts involved in the other items in respect of which the decision of the trial Court was reversed by the High Court should be taken into account in considering the limit of Rs. 10,000 prescribed by Section 110 of the Code. In support of this contention reliance was placed on the decision reported in Ramanathan Chetti v. Subramanian Chetti A.I.R. 1926 Mad. 1024. That was a decision of Phillips and Odgers, JJ., and their Lordships refused leave to appeal to the Privy Council in that case. In a later case, reported in Sundara Mudaliar v. Ratnavelu Mudaliar A.I.R. 1929 Mad. 429 in which the same learned Judges granted leave to appeal to the Privy Council, their decision in Ramanathan Chetti v. Subramanian Chetti A.I.R. 1926 Mad. 1024 was distinguished in these terms: There the memorandum of cross-objections related to a matter entirely distinct from the subject-matter of the appeal: see page 526. 12. It would seem that in the High Court the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for leave was dismissed. A suit to set aside various alienations made by a. Hindu widow should really be taken to be a suit relating to different subject matters, the subject matter of each alienation being different though, as observed by Sir V. Bhashyam Ayyangar in the case reported in Dampanaboyina Gangi v. Addala Ramaswami [1902] 25 Mad 736, a course of decisions in this Presidency has held that such a suit is not open to the objection of misjoinder of parties and of causes of action when the plaintiff's ground of title to all the properties included in the suit is the same. 13. In our view it could not be said that different items in dispute between parties in a suit by a principal against his agent for an account constitute separate subject-matters in the sense contemplated by the learned Judges in C.M.P. 1674 of 1928. No other decision of this Court was brought to our notice. Two decisions of the Calcutta High Court were relied on by the learned advocate for the respondent. In Sree Nath v. Secy. of State [1904] 8 C.W.N. 294, a Bench of three learned Judges of the Calcutta High Court declined to grant leave to appeal to the Privy Council in a land acquisition cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1927Cal543 was passed in 1927. The learned Judges remarked that the Privy Council decision in Annapurnabai v. Ruprao has not overruled the principle that if on an examination of the subject matter that is to be in debate before the Privy Council it be found that on that point the two Courts have been in agreement, the decree of the appellate Court is to be treated as a decree of affirmance within the meaning of Section 110, Civil P.C., that for leave to appeal to the Privy Council in such a matter, the applicant has to prove a substantial question of law, and that the Privy Council has only decreed that the particular application of the doctrine in Sree Nath v. Secy. of State [1904] 8 C.W.N. 294 was erroneous. The learned Chief Justice remarked as follows at p. 576: I do not think that the decision shows that it is an erroneous view that we have to look to the substance and see what is the subject matter of the appeal to His Majesty in Council. I have, I confess, some doubt as to whether in the end even that principle would be found to be in accordance with the construction to be put upon Section 110, but this Court and other High Courts have for many years acted upon that principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the petitioner before us. There the learned Judge observed as follows with reference to the decision reported in Narendra v. Gopendra AIR1927Cal543 . In Narendra v. Gopendra AIR1927Cal543 Sir George Rankin, C.J., says: I have, I confess, some doubt as to whether in the end even that principle would be found to be in accordance with the construction to be put upon Section 110, but this Court and other High Courts have for many years acted upon that principle. 18. The learned Chief Justice there felt that the limitation placed upon the construction of the section is not in consonance with the language used in the statute. Bhagwan Singh v. Bhawani Das Bhagwan Das AIR1921All270 , Venkat Narayana v. Lahshmibayamma AIR1929Mad309 and Jumna Prasad v. Jagannath AIR1929Pat561 were also cited on behalf of the petitioner. 19. When a petitioner is given a right of appeal to the Privy Council, and he prima facie satisfies the conditions prescribed by the section, we think it is our duty to grant him leave to appeal in such a case. As remarked by the Privy Council, ' the chance of success of the appellant in the proposed appeal to the Privy Council is not material to such an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 to the prejudice of the petitioner, but is also against that portion of the decree of the High Court which dismissed the cross appeal (memorandum of objections) filed by the petitioner to the extent of more than Rs. 19,000. The value of the subject-matter of the appeal to the Privy Council is thus much more than ten thousand rupees and not being an affirming decision, it is not incumbent on the petitioner to show that there is a substantial question of law involved in the proposed appeal. The section gives us no discretion in the matter in such circumstances; though there is no substantial question of law involved in the proposed appeal to His Majesty in Council the condition relating to valuation has been satisfied, and the decree of the High Court did not affirm the decision of the trial Court. 21. In my opinion, the appellant is entitled to leave Under Section 110, Civil P.C., construed in the light of the decision of the Privy Council in the case reported in Annapurnabai V. Ruprdo, and we accordingly certify that the value of the subject-matter of the suit in the trial Court was more than Rs. 10,000 and that the value of the subject-matter of the appeal to the Privy Council ..... 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