Case: Tirumalachetti Rajaram  Vs. Tirumalachetti Radhakrishnayya Chetty And Others

2. The appellant Tirumalachetti Rajaram filed a suit in forma pauperis in the Court of the Subordinate Judge, Chittoor, for his half share in the properties which once belonged to the joint family consisting of himself and his father and to this suit he impleaded his father and several alieness from him. His case was that the alienations effected by his father as well as the sales held in execution proceedings against his father were not binding on him and so his share in the properties covered by the said alienations was not affected by them. It is on this basis that he claimed his half share in all the said properties. The trial court rejected his contention that the alienations did not bind him, upheld all the alienations and so dismissed his suit. On appeal the High Court of Madras reversed the trial. courts decree in respect of alienations which covered items 2, 10 and 14 in Schedule A as well as item 5 in Schedule B. It held that the alienations in respect of these items did not bind the appellants share and so a preliminary decree for partition was passed in his favour in respect of the said items. The rest of the decree passed by the trial court was confirmed. The appellant then applied to the High Court for a certificate under Art. 133 (1) of the Constitution. This application was rejected on the ground that the decree sought to be appealed from was one of affirmance and there was no substantial question of law raised by the proposed appeal. In coming to this conclusion the High Court followed an earlier Full Bench decision in Chittam Subba Rao v. Chelamayya, ILR (1953) Mad 1 : (AIR 1952 Mad 771  ) : The appellant then applied for and obtained special leave from this Court

Reasoning:
Normally, in each suit there is one decree, and so it would be inconsistent with the scheme of the Code to divide the decree into several parts by reference to its relation to different claims or subject-matters or to treat one single decree as consisting in fact of several decrees. The normal, natural and reasonable construction to place on the first part of the relevant clause is to hold that it refers not merely to that part of the decree which is sought to be challenged in the appeal but the entire decree from which the appeal arises or the decree giving rise to the appeal. On this construction the clause "appeal from" is not a clause of limitation. It is merely a descriptive clause and it describes the decree as one from which the appeal arises. If that be so, in determining the character of the decree it would be necessary to take the decree as a whole and enquire whether it is a decree of affirmance orare cases in which more than one decree can be and are passed under theCode of Civilfor instance cases where preliminary decrees are passed, but the normal rule is one decree is passed in one suit and so we are not prepared to accede to the argument that the first part of the relevant clause of Art. 133(1) should be read on the basis that every decree passed in a suit should be held to be a composite decree made up of several decrees in respect of several claims of reliefs and that the decree appealed from is only that particular decree which is proposed to be brought in appeal to thisis no doubt that the decision in the context means the decision on the points for determination. That of course is the meaning of the word "decision," but whether or not the word "decision" means the decision on one point or the decision of the whole suit comprising of all the points in dispute between the parties must inevitably depend upon the context, and the context is plainly inconsistent with the argument that the decision should mean the decision on a specific point. If the word "decree" in the first part of the relevant clause means not a part of the decree but the whole of the decree then it would be reasonable to hold that the word "decision" must likewise mean the entire decision of the trial Court and not a part ofargument is that if for determining the value of the subject-matter it is necessary to consider only that part of the decree and subject-matter which are actually proposed to be brought to this Court in appeal in interpreting the word "decree" in the relevant clause a similar approach should be adopted and only that part of the decree should be considered which is proposed to be brought to this Court in appeal. We do not see the materiality of this consideration nor even its relevance. The test prescribed by Art. 133 (1) (a) is an independent additional test and its effect has to be judged by interpreting the words used by the relevant clause. If the said clause refers to the amount of the value of the subject-matter still in dispute on appeal quite plainly we must take into account only the subject-matter in dispute in appeal and nothing more.The words used in this connection are clear and unambiguous but they cannot reasonably control the meaning of the word "decree" in the relevant clause which provides for an additional and an independent condition. Therefore, in our opinion, the argument based on the construction of Art. 133 (1) (a) is not welltwo Courts which have judged the dispute between the parties and applied their independent minds to it agree in their conclusions the appellate decision is one of affirmance and unless there is a substantial question of law no further right to appeal should lie. That is the basis of the provision. When, however, a variation is made by the appellate Court it tends to show that the two Courts have not entirely agreed and so it is not a case of affirmance. The extent of the difference does not matter so much as the fact that there is a difference in the result, and so in prescribing the doctrine of affirmance the Constitution makers may well have intended that the said doctrine should be confined only to cases where there is a complete affirmance and not to cases of partial affirmance. We do not think that the consequences of the view we are inclined to take can be reasonably characterised as opposed to commonsense. Besides, if on a fair and reasonable construction the words used in the relevant clause lead to the conclusion which we are inclined to draw it would be unreasonable to limit the scope of the said words on hypothetical considerations of unreasonable consequences. As we have already observed we are dealing with a constitutional right conferred on litigants, and, unless the limitation contended for by the respondent can be said to flow reasonably from the words used in the relevant clause, it would not be open to us to adopt that limited construction merely on such hypotheticalis perfectly true that in construing the clause we would carefully have to bear in mind the views expressed by the majority of our High Courts, but as we have already indicated there is a sharp conflict of opinion on this point and it can be stated generally that in almost all the High Courts different views have been expressed at one time or the other. Besides it would be singularly in-appropriate to invoke the doctrine of stare decisis in a case of this kind where High Courts have differed and the matter has been brought to this Court for resolving the said difference of opinion. In such a case it is open to us, and indeed it is our duty, to construe the relevant clause and decide which of the two conflicting views should hereafter prevail. Therefore the argument based on the practice prevailing in the majority of the High Courts in this country is not of muchis well known that in raising the amount of the value of the subject matter Art. 133 (1) (a) has merely partially recognised the fall in the price of the rupees and so it cannot be read as showing the intention to restrict the appellants right in any manner. In regard to the provisions of Art. 133 (3) there is no material change made by the Constitution since the position under S. 111 of the Code of 1908 as well as S. 597 of the Code of 1882 was substantially the same. We would accordingly hold that in determining the question as to whether the appellate decree passed by the High Court affirmed the decision of the trial Court the appellate decree must be considered as a whole in relation to the decision of the trial Court similarly considered as a whole. That is the proper approach in applying the test of affirmance. If there is a variation made in the appellate decree in the decision of the trial court it is not a decree of affirmance and this is not affected either by the extent of the variation made or by the fact that the variation is made in favour of the intending appellant and not againstevolved these principles the learned Chief Justice observed that every one of the decisions cited before the Court can be justified by an application of the principles thus set up. It is evident from the judgment that the task which the Full Bench attempted to achieve was one of reconciling the different expressions of opinion found in the reported decisions of the Court. In doing so more attention has naturally been paid to the said decisions and the reasons on which they were based than to the words used in Art. 133 itself. In regard to the said Article the learned Chief Justice has observed that Courts cannot add to the language actually employed and thus give an unwarranted extension to the scope of the statutory provision. "At the same time, I do not think", observed the learned Chief Justice, "That the letter of the statutory provisions should compel a Court to an unreasonable construction if it is possible to take a reasonable view by taking the latter of the provision along with its substance." Assuming that this principle can be legitimately invoked in construing a constitutional right of making an appeal it must be borne in mind that hypothetical considerations about unreasonable consequences would not justify the imposition of a strained meaning on the relevant words used in the Article. If in discussing the problem we first begin with the enquiry as to what would be reasonable, and having reached a conclusion in that behalf on a priori consideration if we seek to import that conclusion on the words used in Art. 133 that would not be a proper approach to adopt. The proper approach to adopt would be to take the material words as they occur in Art. 133 and construe them fairly and reasonably. We have already indicated our conclusion on a fair and reasonable construction of the clause. The Madras decision no doubt attempted to find principles on which its previous decision could be explained and has in fact evolved three such principles. Even if these principles are assumed to be logical and consistent with each other and even if they are assumed to explain the earlier decisions of the Court it does not follow that the said principles can be legitimately assimilated within the scope of the Article because it seems to us that unless words are added in the Article and the meaning of the words used is unduly strained it would be difficult to justify the said principles as flowing from the said Article.Before we part with this appeal we would like make it clear that if an appellate decree confirms the decision of the trial Court but merely makes a variation in regard to the order as to costs such a variation would not affect the character of the decree which would in law amount to a decree of affirmance whether the variation as to costs is made in favour of one party or the other. The position with regard to interest, however, is different; for instance in regard to a claim for interest before the date of the decree which is a part of the dispute between the parties if the appellate Court makes a variation in respect of the award of interest that would affect the character of the appellate decree. Unlike the order of costs which is entirely in the discretion of the Court under S. 35 of theCode of Civilan order as to interest which the Court can make under S. 34 of the Code forms part of a dispute between the parties, and in that sense if a variation is made in regard to it is an integral part of the decision or the decree. In this connection it may also be necessary to make it clear that if the appeal Court makes a variation in the decision of the trial Court either because a concession has been made in that behalf or the variation has been obtained by parties by consent or a part of the subject-matter covered by the decree has been withdrawn such variation cannot affect the character of the appellate decree. The principle of affirmance on which the provision rests postulates either affirmance or variation by the appeal Court as an act of adjudication and that necessarily means the decision of the appeal Court on the merits.