8 72

MANAGEMENT COMMITTEE T. K. GHOSH'S ACADEMY A v.

T. C. PALIT & ORS.

April 9, 1974.

(P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.) B Con3ti111tion of lridia. 1950-Art. 133( 1) (a)d:(b)-Distinction beJween clause (a) and (b).

The plaintiff-respondents filed a suit for the efcctment of the defcndantappellant from the premises in dispute and for recovery of certain amount on account of arrears of rent The defendant-appellant on the other hand claimed that under the deed of trust they were entitled to occupy the satd premises

without payment of rent.

The lower court decreed the suit in favour of the plaintiffs-respondents. On a9peal the High Court set aside the decree for eject- C ment and reduced the amount for recovery.

The High Court,.granted certificate of fitness under clauses (a) and (b) of Art. 133(1) of the Constitution.

On apPeal it was contended by the respondents that the Hi_.Jl Court was wrong in granting the certificate of fitness aµd that it should be cantcned.

Dismissing the a99lication for cancellation of certificate of fitness, HELD: The appeal is maintainable under Art. 133(l)(b) of th.e Constitution.

To attrac; l the applkation of Art. 133(1)(b) it is essential that there must be a judgment' involving directly or indirectly some claim or question respecting

property or an amount or value not less than rupees twenty thousand. The variation in the language used in clauses (a) and (b) of Art. 133(1) pointedly highlights the conditions which attract the application of the two clauses. Under

clause (a) what is decisive is the amOunt or value of the subject matter in the court of first instance and ·still in dispute" in appeal to the Supreme Court : under clause (b) it is the aniount or value of the property rcspCcting which a claim or question is involved in the judgment sought to be appealed from. The expression "property'' is not defined but having regarJ to the use of the expression .. amount'' it would apparently include money.

But the property respecting which the claim or question urises must be property in addition to or other than the subject matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject matter, clause (a) will apply : if there is involved in the appeal a claim or question respectin$ pro- . perty of an amount or value not less than rupee twenty thousand in addition to or other than the subject matter of the dispute clause (b) will apply. [878 F-H]

Chhitannal v. Mis. Shah Pa111wlal Clzand11lal, [19651 2 S.C.R. 751, referred lo.

The judgment of the High Court in the present case plainly did not affirm the decision of the trial court b;?cause the High Court set aside the decree fllr ejectroent_and also reduced the amount for the recovery of which decree for ejectmcnt and also reduced the amount. for the recovery of which decree had been awarded by the trial court. The variation of the decree of the trial court was in favour of tho defendants-appellants but that circumstance would not detract from the fact that the judgment of the High Court was not one of affirmance of the decision of the trial court. In determining the character of the appellate decree what has to be looked into is the appellate decree taken in its entu-ety and compare it with the decision of the trial court as a whole and decide whether the appellate decree is one of affirmance or not. In this enqutry the nature of the variation made whether it is in favour of the intending appellant or otherwise would not be relevanl. [877 G-HJ

Tiumalachetti Rajarani v. Tirunralachelti Radlwkris/Jnayya Chell) .. , [1'62] 2 S.C.R. 452, followed.

Jn the illstant case tbe said Premises were admittedly of the value of more than rupees twenty thousand. The school premises were plainly not the subject

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MA!(AGEMENT GHFSH ACADEMY v. T. c. PALIT (Khanna, /.) 873

matter of tho dispute because if that bad been so the case would have fallen undor clauoe ·(a). On the contrary the present was a case IOlating to a claim n:ing property of the vah1e of more than rupees t\\tenty thousand. The ea:1e as such would fall within the ambit of clause ( b). [879 CJ

SIU'Qpati Roy & Ors. v. Rant Narayan Muklzerji &: Ors., .50 Indian Appeal11 15.5, relied on.

Bombay Gas Co. Ltd. v. Jagan Nalh Pandurang & Anr. [1972] 3 S.C.R. 92~, held inapplicable •

CIVIL APPJ,.LLATE JURISDICTION: Civil Appeal No. 570 ol 1969.

From the Judgment and decree dated the 29th September, 1967 of the Patna High Court in Appeal from Original Decree No. 459 of 1961. c D. P. Uniyal and S. N. Singh, for the appellant.

S. C. Agarwala, V. /. Francis and s. S. Bhatnagar, for respondent nos. 1 and 2.

The J udi:mcnt of the Cou:t was delivered h~ - -

KH.•NNA, J .. A decree for ejectment from the premises in dispute and for recovery of Rs. 7, 163/12/3 was awarded by learned Additional Sub Judge Patna in favour of the two plajntitl-respondents against the Board of Trustees T. K. Ghosh s Academy Patna and other defendants.

On appeal filed by some of the defendants tbc Patna High Court set aside the decree for ejectmcnt.

The .amount for the recovery of which decree had been awarded by the trial. court was aL; o reduced to Rs. 3,725/2/-.

The present appeal has been filed on certificate bv the Managing Comm\ttec T. K.

Ghosh's Academy and other defendants against the decision of the High Court.

The two plaintifirespondents are the sons o[ Shri Jadu Nath.

PaJit who founded in 1876 a school known as T. K. Ghosh"s Ac:.demv.

The school attracted some of the best students and Dr.

Rajendra Prasad, Dr. B. C. Roy, Mr. Hasan Imam and Mr. Sachidanand Sinha received their education in this school. The school was run in premises which originally belonged to one Mr. Boilard.

Shri Jadu Nath died in 1901 leaving behind three minor sons, two of v; bom. were the plaintiff-respondents and the third was their brother Dr. K. L. Pali!.

After Jadu Nath"s death, the management of the school was looked after bv the sons of Shri T. K. Gh<>sh in whose memory the school had bee.n founded.

Shri T. K. Ghosh was th<> brother-in-law of Shri J_a!!.u Nath.

A Managing Committee was formed bv the sons of T. K. Ghosh for the management of the school in 1905 or 1906. Nearabout 1914 the management of the school was taken over bv Shri Jadu Nath's sons.

In 1918-19 the Managing Committee of the school wa~ reformed under the directions of \he Board of Second_ary Education.

On September 11, 1919 the school building was purchased by the three sons of Shri Jadu Nath from Mr. Boi!arll as per sale deed Ex.C. On July. 28, 1930 Dr. K. L Palit sold his share in the school building in favour of his two brothers. 1iz., the plaintiff-respondents, as per sale deed Ex.CL

Ou August 13, 1950 the two plaintiff-respondents executed Deed_ of Trust Ex.P appointing Rai Bahadur Nirmal Chandra Ghosh, Retired Dis:rict and Sessions Judge and six others as trustees of the school.

The object an'd the subject matter of the trnst would be clear from . the following :

"Whereas the setljors are the proprietors ol the Hig_h l!ng1ish School named T. K. Ghosh's Academy new located in a building owned alld possessed by the settlors situated in Ma, halla Chowahatta thana Pirbahore district Patna. .

And whereas the settlors being desirous of the continuance of. the school and the perJietuation of the memory of. the person after whom it is named and the association of same with the name of the institution, of the retention in it of Bengali as a subject of instruction and also as a mttiium of instruction as far as possible and also of the improvement. extension or alteration as regards the standard and subjects of instruction in the institution as may be considered suitable for the benefit of students, have decided to settle in trust for this purpose the said school consisting of its name good will together tvith its funds, furniture, library an\! .other educational appliances and equipments as a functionin£ institution affiliated to the Patna University in the oanner and on the condition hereinafter following.

Now this Deed witnesses. as follows :-

1. In pursuance oLthe said desire of the settlors the sett1ors do hereby transfer and assign unto the trustees the S, llid High School T. K. Gosh's Academy with all that prope1ty consistin)! of the funds, furniture, library and equipments described and Uetailed ill the schedule hereto to hold the same upon trust to .fulfil the object Of the settlers and . on. the conditions and With_ and subject to the powers provisions and agreements herei!l contained."

Clauses 4, 6, 9; 10, 11 and 15 of the trust read as under : . ~'(4) -The trustees will be entitled to nominate 2 (two) . members out of. themselves, to the managing committee of the school in addition to the Headmaster who will ex-officio be a member. ·

c 61 At !east one male descendant of Ilabu Jadu Nath Palit deceased shall. if available. be always a member of the body of trustees . • ( 9) The trustees shall find other premises for the location cf the school and. shift the school there within 5 (five l -vcars of the date of the deed and vacate the present premises

to the settlors.

110) The trustees shall forthwith start a building fund for the school.· · ·

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JIIANAGEMENT GHFSH ACADEMY v. -T. c. PALIT (Khanna, !.) ~75

(11) The settlors will receive a house rent of Rs. 250/- per month for the said period of 5 (five) years for the premises now occupied by the school as owners of the premises.

The settlors have agreed that any surplus left over therefrom, after deducting the amount spent on necessary repairs of the house and on taxes, ground rent and other necessary outgoings in respect of the premises for the said period of 5 (five) years will go as the contribution of the settlors to the buil'ding fund as provided in the preceding paragraph, and the trustees will be entitled to receive directly from the school such surplus and deposit it in the said building fund.

(15) All matters and questions relating to the proprietary rights in the school (exclusive of the land and buildings where in the school is at present located, which does not from part of the trust property) and its properties will be disposed of by the trustees." It may be stated that the school building initially stood on holding .

No. 20. In 1951 the building was extended to holding No. 22 also.

The upper portion of the building on holding No. 22 is used for the headmaster's residence and the lower portion for running the classes.

According to the plaintiff-respondents, jt was agreed that they would be paid a rent of Rs, 37 /8 /- for the building on holding No. 22. The

total rent thus came to Rs. 287/8/- i.e. Rs. 250 for the building on holding No. 20 and Rs. 37 /8/- for the building on holding No. 22. It is fu{ther the case of the plaintiffs that in or about June 1956 it was settled by the trustees and ihe Managing Committee of the school with the consent of the plaintiffs that out of the monthly rent of Rs. 287 /8 fa cash amount of Rs. ,190/- would be paid directly to the plaintiffs. and the balance of Rs. 9718 /- could be paid by the Managing Committeeof the school to the trustees for p_ayment of latrine and water taxes of the municipality and for meeting costs of periodical repairs.

As the premises were not vacated within five years of the execution of the Ded of Trust, the plaintiff-respondents after serving notice of demand filed the present suit on July 28, 1959 against the Board of Trustees T. K. Ghosh's Academy and other defendants. One of the reliefs claimed was for ejctment of the defendants from the premises in dispute. The other relief claimed was for recovery of Rs. 7,163/12/3' on account of arrears of rent frclm August, 1956 till July, 1959 and

- -other items, the details of which were given in Schedule I to the plaint.

The suit was contested by defendants No. 2, 3, 7 and 12 in their capacity as members of the Managing Committee. The other defendants, including the trustees, did not contest the suit. According lo the contesting defendants, there was no relationship of landlord and tenant between the plaintiffs and T. K. Ghosh's Academy and its Managing Committee. It was also stated that there was no contract to pay the rent of Rs. 287 /8/- per month. The Deed of Trust was stated by the -

contesting defendants to be fraudulent, illusory and void . document.

According further to the contesting defendants, the school was founded

by the father of plaintiffs for the uplift of education and for public good with no motive to derive any personal benefit. The building was

also stated to have been dedicated by the founder for the use of the public. ·

The trial court, as mentioned earlier, decreed the suit. It was held that the Deed of Trust was a genuine and valid document and was binding on the school and its Managing Committee. As regards the existence of the relationship of landlord and tenant. the trial court held that the contract of.tenancy was evidenced by the Deed of Trust and was binding upon the parties.

In appeal before the High Court contention was advanced on behalf of the contesting defendants that there had been a dedication of the school building in favour of the school by the fat\ler of the plaintiffrespondents who had founded the school.

Argument was further advanced that there was no relationship of landlord and tenant between the parties and the Deed of Trust was not binding upon the contesting defendants. Contention was also raised that the suit for ejectment was not maintainable unless the tenancy had been determined by the giving of a notice under section I 06 of the Transfer of Property Act The High Court rejected t'ie contention that there had been dedica tion of the school building. Likewise, the contention that there did no arise the relationship of landlord and tenant between the parties was rejected. The High Court set aside the decree for .ejectment because it was of the xiew that such decree could be awarded only after determination of the tenancy by giving a notice under section IG6 of the Transfer of Property Act. The High Court further reduced the amount for the recovery of which the decree had been awarded, because it was of the view that certain deductions were permissible out of the amounts claimed by the plaintiffs. In the result the amount for which decree had been awarded was reduced to Rs. 3,725/2/7•

At the hearing of the appeal Mr. Agarwal on behalf of the plaintiff-respondents has contended that the High Court was in error in granting. a certificate of fitness for appeal to this Court in favour of the defendant-appellants. An application has also been filed on. behalf of the plaintiff-respondents for cancelling the certificate of fitness granted by the High Court. This application has been resisted by the appellants.

We may state at the outset that the High Court granted the ccrtifi cate of fitness under clauses (a) and (b) of article 133(1) of the Constitution. Mr. Uniyal on behalf of the appellants has frankly stated that the certificate could be granted only under clause

(b) and not under clause (a). We agree with Mr. Uniyal in this respect. and are of the opinion that there is no sufficient ground for cancelling the certificate of fitness.

The plaintiff-respondents. as would appear from the resume o[ facls given above, had prnyed fqr a decree of ejcct1ncnt fron1 the pr.:1nises in dispUic and for r:'CO\'ery of J{s. 7.163 1 76 -. rh.: jurisdictional \'~1luc of the suit was mentioned to be Rs. 10.613/76/- consisting of the amount of Rs. 7,163/76 and Rs. 3450 representing 12 months rent at the rate of Rs. 287/50. The present case did not fall under clause

(a) of article 133(1) because it could not be said that the amount or

1,!ANAGEMENT GHOSH ACADEMY v. r. c. PALIT (Khanna, J;) 8 77

value of the subject-matter of the dispute was not less than twenty thousand rupees. Question then arises whether the defendant-appellants were entitled to certificate under clause (b) of article 133(1).

Article 133(1) at the relevant time read as under: ·

"133 (1) An appeal shall lie to the Supreme Court lrom any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies- { a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may bi' specified in that behalf by Parliament by Jaw; or

(b) that judgment, decree or final order involves direct!)' or indirectly some claim or question respecting properti of the like amount or value; or ( c) that the case is a lit one for appeal to the Supreme

Court;

and, where the judgment, decree or fincl c:oer appealed fron:i affirms the decision of tbe court i:nrr; cdiately below in any case other than a case referred to in sub-clause ( c) if the High Court further certifies tbat the &ppeal involves some substantial questio:i of law." It may be stated that there has been a subsequent amendment of article 133(1) by the Constitution (Thirtieth Amendmont) Act,

1973. We are, however, in the present case concerned with the article as it stood before the amendment. Perusal of clause (b) of article 133 (I) shows that an appeal shall lie to this Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the value of not less than twenty thousand rupees. It is further necessary that where the judgment, decree or final order appeal.id from affirms the decision of the court immediately below, the High Cotirt should certify that the appeal involves some substantial question of law. The judgment of the High Court in the present case plainly did not affirm the decision of the trial court because. the High Court set aside the decree for ejectment and also reduced the amount for the recovery of which decree had been awarded by the trial court. It is no doubt true that the variation of the decree of the trial court was in favour of the defendant-appellants but that circumstance would not detract from the fact that the judgment of the High Court was not one of affirmance of the decision of the trial court. As observed by the Constitution Bench of this Court in the case of Tirumalachetti Rajamm

v. Tirimwlachetti Radhakrishnayya Chelly( 1). in delerntining the character of the appellate decree, we have to look at the appellate decree taken in its entirety and compare it with the decision of the !rill court

(I) [1962] 2 SCR 452.

. as a whole and decide whether the appellate decree is one of affirmance or not. In this enquiry the nature of the variation made whether it is in favour of the intending appellant or otherwise would not be relevant.

As regards the applicability of clause (b) of article 133(1), we may obser\'~ that there is a vital distinctiori between clauses (a) and

(b) of article 133(1) and the areas covered by the two clauses are clearly demarcated. Clause (aJ speaks of the subject-matter of the dispute and what is required by the clause to bring a case within its ambit is that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute was and is not less than twenty tl; ousand rupees or such other sum as may be specified in that behalf by Parliament by law. As against that, clause (b) of Article 133(1) makes no mention of the subject-matter of the dispute and it is immate:ial for this clause as to what is the amount or value of the subject-matter in dispute. What is essential to invoke clause (b) is that the judgment, decree or final order should involve directly or indirectly some claim or quesiion respecting property of the amount or value of not less than tv.:enty thousand rupees or such other sum as may be specified in that behalf by ParEament by law. Clause (b) thus deals with a claim or question respecting property. If a judgment, decree or final order inYolves claim or question respecting property and it is shO\Vn that the property is of the an1ount or value of not less than twer,!y thousand rupees. the clause would be attracted. It is plain fror,1 the language of clause (b) that the property respecting v.; hich cJai:-n or question i.s involved in the judgn1cnt, decree or final order is r.ci the subject matter of the dispute, ior if that property were the subject matter of the dispute the case would fall not under clause

(b) but under clause (a) of artick 133(1). It may also be mentioned that the requirement of clause (b) would be satisfied if the judgment, decree or final order involves, not directly but even indirectly, some claim or question' respecting property of the amount or value of not less than twenty thousand rupees.

To a<lract the application of article 133 (I) (b) it is essential that there must be-omitting fron1 consideration other conditions not material-a ju<lg:inent involvin~ directly or indirectly some claim or question respecting property of an amount or value not less than Rs.20,QOG.

The vari<1tion in the JanQuac used in clauses (a) and (b)of article 133 poir.tedly highlights -theconditions which attract the app'icati0-1 of the t\\'O clauses. Under clause (a) y, rhat is decisive is the nn1ount er value of the subject-matter in the court of first instance and ''still in

dispute" nrpeal to the Supreme Court : under clnuse (b) it is the amount er \'alue of the property respecting \Vhich n c1aim or qtcstion

j') in:volvc<l in the judg1nent sough_t to b:: appe1.lled fr?1n The cxpr.;:s sion 'propcrty".'is not defined in. the Code, but hav1n~ regard to Lhc us;:: of the expression "an1oun~" 1t wou]~ apparcnty incl.udc 111on:J'- But the property respecting \Vlnc~ the cla1n1 r question arises rn_ust be

property in addition to or other tnan the subiect-mattcr _of the d1spte.

If in a proposed appeal thc1:-::: is no claim or quesho~ ra1s1::<l rcs.cct1ng property other than the ub1c.1-~1atter, clai.; c (al \VIII .apply: H there is invohrcd in the appeal a c1a11n or question respecting property of

MANAGEMENT GHOSH ACADEMY v. T. c. PALIT (Khanna, J.) B79

an amount or value not. less than Rs. 20,000 in addition to or other than the subject-matter of the dispute clause (b) will apply (see Chhitarma/ v. "M/s Shah Panna/al Chandu/al(1).

Keeping the above principles in view, we have no doubt that the .:ase of the appellant falls under clause. (b) of article 133(1). As would appear from the resume of facts given earlier, the case of the plaintiffs was that the defendants were liable to pay rent for being .in occupation of the school premises. As against that, the case of the defendant-appellants was that they were entitled to occupy the &afd premises for carrying on the school without payment of rent. It is manifest that the judgment and decree of the High Court as well as the trial court involved a claim or question respecting the school prcmisea: The said premises are admittedly of the value of more than

rup<:es twenty thousand.

Th.o school premises were plainly not the subject-matter of the dispute because if that had been so, \It• case would have fallen under clause (a). On the contrary, the present was a case relating to a claim respecting property of the value of more than rupees twenty thousand. The case as such would fall within the admit of clause (b). We may in this context refer to a decision of the Judicial Committee in the case of Surapati Roy & Ors. v. Ram Narayan Mukherji & Ors.( 2 ). Question which arose in that case was regarding the validity of a certificate granted by the High Court under section

110 of the Code of Civil Procedure. Though the rent claimed in the suits was less than Rs. 10,000 the High Court granted a certificate of fitness.

Objection was taken before the Judicial Committe, e regarding the validity of the certificate on the ground that the subject-matter was of a value of less than Rs. 10,000. The objectioµ was repelled by the Judicial Committee in the following words :

"The subject matter in dispute relates to a recurriny liability and is in respect of a property considerably above the appealable value. The certificate in the circumstances is

quite in order."

Reference has been made by Mr. Agarwal to the_ decision of this Court in the case of Bombay Gas Co. Ltd. v. lagan Nath Pa11durang & Anr.('). The respondent in that case filed applications under the

Payment of Wages Act claiming overtime wages for the period 1957 to 1958 and wages for weekly off days for the period 1962 to 1963.

The appellant filed appeal to this Court against the judgment of the High Court setting aside the order of the appellate authority holding the claim to be time-barred. The appeal was filed on the basis of a certifica.te under article 133(1)(b). It was held that the certificate issued by the High Court under article 133 ( l) (b) was not proper.

Question was posed in that case that the certificate could be granted under the above clause as there was a recurring liability which if calcuMed for subsequent yeors would come to Rs. 20,0CO or more.

This Court was not impressed with the above argument. The said case

(I) (19651 2 SCR 751.

(3) (1972] 3 SCR 929.

I l-84SupCi/75

(2) 50 Indian Appeuls 155.

cannot be. of much assistance to, the. plaintiff-respondents _because in that case there was .no claim' or question respecting property of the A value of more than Rs.' 20;000 .. in he preSent case we have both the elements, namely, of a recurring claim and of a claim in respect of property of the value of more than Rs. 20,000. We, therefore, hold that the appeal is maintainable under article l33(1J(b) of the Constitu- . tion. The application for cancellation ct. the certificate of fitness granted by the High Court is dismissed. _

Coming to the merits of the appeal, we find that till the execution of the Deed of Trust on August 13, 1950, the school in question was treated as a proprietary school. This is clear from the inspection note dated December 10, 1947 of the Inspector of Schools. According to the inspection note, this institution was a proprietary school and the proprietors made good any deficit that accrued in running the school efficiently. In the annual statement dated January 8, 195Q relating to the school which had to be furnished by the school authorities to the Board of Secondary Education, it was mentioned that the proprietors of the school were the plaintiff-respondents. It was by Deed .of Trust dated August 13, 1950 that the plaintiff-respondents transferred and assigned to the trustees property consisting of the funds, furniture, library and equipment described and detailed in the Schedule to the Trust Deed. The Trust Deed, however, made it clear that the land and building wherein the school was located did not form part of the trust property. As the school did not own any building of its own and was being run in the building belonging to the plaintiff-respondents, it was reSolved by the trustees that efforts be made for acquiring land for the school building and for collecting and depositing funds for the . co!l!truction of the building. This is clear from the resolutions passed in the meetings of the trustees held on May 21, 1951 and April 20, 1952.

It has been argued on behalf of the appellants that no liability for . payment of rent call. be fastened upon the defendants and that the High Court was in error in holding to the con(!:ary. There is, in our opinion, no force iti this contention. It has been proved upon the material on record that the Managing Committee has been receiving deficit grants from the Government on the basis of statements showing house rent payable by it for school building to be Rs. 250 plus .. Rs. 37.50 per

month. In view of the fact that the school receives grant from the Government on the representation that an amount of Rs. 287.50 has to be paid on account of house rent, it hardly lies in the mouth of the appellants to assert that there is no liability for the payment of rent for the school building. Jn. addition to that, we find that the Managing

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MANAGEMENT GHOSH ACADEMY "· T. c. PALIT (Khanna, /.) 881

Committee in its resolution'/passed in the meeting held on December 23, 1954 admitted that an amount of Rs. 287.50 was to be paid as rent to the proprietors for the school premises including the portion in the occupation o.f the headmaster. The fact that rent of Rs. 287.50 wns agreed to be paid for the school buildings was also ment:oned in the audit report relating to the school for ihc period April 1956 to October 1956.

Jn view of the above material, we find no cogent ground to interfere with the judgment of the High Court maintaining decree for recovery of money to the extent of Rs. 3,725/2/· in favour of the plaintiff-respondents. The appeal consequently fails and is dismissed, C but in tl1c circumstances \Vithout osts.

P.B.R.

Appeal dis111iset1.