judgement:
Appeal No. 92 of 1961.
Appeal by special leave from the judgment and decree dated January 9, 1958, of the Andhra Pradesh High Court in Appeal No. 211 of 1949.
K. R. Choudhry, for the appellant.
T. V. R. Tatachari, for respondents Nos. 2, 3 and 24 to 27.
R. Thiagarajan and P. Ram Reddy, for respondents Nos. 4 to 7 and 17.
April 27.
The Judgment of the Court was delivered by J.
GAJENDRAGADKAR, J.
If the appellate decree passed by the High Court makes a variation in the decision of the trial Court under appeal in favour of a party who intends to prefer an appeal against the said appellate decree, can the said decree be said to affirm the decision of the trial court or not under article 133(1) of the Constitution? That is the short question Which arises for our decision in the present appeal.
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 alienees 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 court 's 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 item,% did not bind the appellant 's share and so a preliminary decree for partition was passed in his favour in respect of the said 455 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 article 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 vs Vela Mankanni Chilamayya (1).
The appellant then applied for and obtained special leave from this Court, and on his behalf it is urged that the view taken by the Madras High Court in the case of Chittam Subba Rao (1) proceeds on a misconstruction of the relevant clause in article 133(1).
That is how the short question which falls to be considered in the present appeal relates to the construction of the said relevant clause in article 133(1).
It is common ground that the test of valuation prescribed by article 133(1)(a) is satisfied in this case.
Article 133(1) which corresponds to section 110 of the Code of Civil Procedure reads thus: "133(1).
An appeal shall lie to the Supreme Court from 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 be specified in that behalf by Parliament by law; or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub clause (c), if the High Court further certifies that the appeal involves some substantial question of law." (i) I.L.R.[1953] Mad.
i. 456 In the present case we are concerned with the clause "where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub.
clause (c)".
It is common ground that if the appellate a decree of the High Court makes a variation in the decision of the trial court against the intending appellant the appellate decree is not a decree of affirmance but variation, and this position is not affected even if the variation in question is to a very small extent and may be of very minor significance.
The decisions of the High Courts, however, show a sharp conflict in regard to the question as to the character of the appellate decree where it makes a variation in favour of the intending appellant.
Broadly stated the majority of the High Courts have taken the view that an appellate decree which makes a variation in favour of the intending appellant is a decree of affirmance and it is only the Punjab High Court and the majority decision of the Patna High Court which have taken a contrary view.
The decisions of different High Courts bearing on this point show that the learned Judges did not always try so much to construe the terms of the relevant constitutional provision as to reconcile their earlier decisions which disclosed a different approach and a tendency to reach different conclusions.
Indeed, on occasions some judgments have expressed the hope that the sharp conflict of judicial opinion resulting from the difference in approach adopted in dealing with the problem can be effectively resolved only when this Court considers the matter and makes its authoritative pronouncement.
Thus it would be clear that though this important question lies within a narrow compass it is not free from difficulty.
In dealing with this question we think the best course to adopt would be to consider the problem of construction without reference to the previous decisions on the point, and in construing the relevant clause it is obviously necessary to bear in mind that the clause under discussion deals with the constitutional right of the litigant to make an appeal to this Court; and so it would be inappropriate to adopt a 457 technical or pedantic approach in interpreting the material words used in the relevant clause.
Reading the clause as a whole and giving the material words their plain grammatical meaning it seems prima facie to show that the test of affirmance prescribed by the clause can best be satisfied if we take the appellate decree in its entirety and enquire whether the said decree affirms the decision of the trial court considered, in its entirety.
It is a matter of comparing the appellate decree with the decision of the trial court under appeal.
If the appellate decree affirms the decree of the trial court it is a decree of affirmance; if there is a variation made by the appellate decree in the decision of the trial court the appellate decree is not a decree of affirmance and this position would not be affected whether the variation is made in favour of the intending appellant or against him and whether the variation made is minor or major.
It is, however, urged that the words "judgment, decree or final order appealed from" denote that part of the judgment, decree or final order in appeal which is intended to be challenged in the proposed appeal to this Court.
In other words, the word "decree" it is suggested, refers to the part of the decree under appeal.
On this construction a decree has to be split up into different parts and the words "appealed from" have to be treated as words of limitation.
The argument in a slightly different form has also been pressed before us.
It is suggested that in cases where different causes of action and different claims and reliefs have been combined different decrees are in fact passed though in form there may be one paper on which one decree is drawn; and so it is argued that the decree appealed from must mean the decree under appeal dealing with the subject matter or matter in dispute proposed to be brought to this Court by the intending appellant.
For one thing this argument may not be available where there is only one cause of action, and it is quite clear that the word "decree" must have one meaning applicable to all cases.
Besides, in our opinion, this construction on which the argument is based is far too technical and artificial and cannot be 458 regarded as reasonable.
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 "appealed 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 deter mining 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 or not.
In support of the argument that there can be more decrees than one in a suit which combines different causes of action and different claims made against different defendants in respect of different subject matters Mr. Tatachari, for the respondent, has relied on the decision of the Calcutta High Court in Dhirendra Nath Sarkar vs Nischintapore Company (1).
In that case the Court was dealing with a decree which was made in favour of the plaintiffs for the recovery of arrears of rent in respect of three tenancies held by three different tenants and the question raised was one of limitation under article 182, cl.
(5) of the Limitation Act (IX of 1908).
The court held that although the decree was passed in one suit and was set out on one sheet of paper the position was precisely the same as if the plaintiffs had brought three distinct suits against the defendants and had obtained three different decrees.
It appears that the decree holder 's claim for execution was in time in respect of one of the tenants but not in respect of the two others; but he urged that since the decree was one it was not open to the two other tenants to plead limitation by splitting up the decree into three different decrees and by seeking to 459 invoke the provisions of article 182, cl.
(5) severally as against each one of the said decrees.
This argument was rejected and it was held that under explanation (1) to article 182 the decree holder 's application for execution was barred by limitation in respect of the said two tenancies.
It would thus be clear that the discussion about the character of the decree and the conclusion that though in form there was one decree in fact and law the decrees were three are based on the provisions of explanation (1) and so must be confined to the said explanation.
Explanation (1) provides that where the decree or order has been passed severally in favour of more persons than one distinguishing portions of the subject matter as payable or deliverable to each, the application mentioned in cl.
(5) of article 182 shall take effect in favour only of such of the said persons or their representatives as it may be made by.
But where the decree or order has been passed jointly in favour of more persons than one, such application, if made by any one or more of them, or by his or their representative, shall take effect in favour of them all.
The facts in the case of Dhirendra Nath Sarkar (1) were converse of the case contemplated by the first part of explanation (1), and so the principle laid down by the said part of explanation (1) was applied and it was held that in respect of the two tenancies the decree holder 's application for execution was barred by article 182, cl.
It would be idle to contend that considerations which are relevant and material under explanation (1) are of such a general application as to support the plea that in a suit where different causes of action are included and different reliefs are claimed against different individuals several decrees are passed and not one.
There are cases in which more than one decree can be and are passed under the Code of Civil Procedure, for 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 article 133(1) should be read on the basis that every decree passed in a suit should be held to be a (1) ; 22 C.W.N. 192.
460 composite decree made up of several decrees in respect of several claims or reliefs and that the decree appealed from is only that particular decree which is proposed to be brought in appeal to this Court.
The next question to consider is: what is the denotation of the word "decision" used in the said clause.
The argument for the respondent is that the word "decision" does not mean the whole of the decision but the decision on that part of the controversy between the parties which is brought to this Court in appeal.
In support of the argument that the decision does not mean the entire decision of the trial court reliance is placed on the provisions of O. 20, rr. 4 and 5.
Rule 4 of O. 20 deals with the judgments of Small Cause Courts and judgments of other Courts, and it provides that the judgments falling under the first clause need not contain more than the points for determination and decision thereon, whereas the judgments falling under the latter class should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.
There is 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 of it.
Then it is urged that O. 41, r. 33 seems to contemplate that there can be an appeal against a part only of the decree and so the word "decree" in the first part of the relevant clause may well mean a part of the decree under appeal.
It is true that under the interpretation clause in section 2 the word "decree" means, 461 inter alia, the formal expression of an adjudication, which conclusively determines the rights of parties with regard to all or any of the matters in controversy in suit, and it is also true that a party aggrieved by a decree may appeal only against a part of it and is not bound to file an appeal against the whole of the decree; but we do not see how this can assist the respondent in contending that the word "decree" must,, mean a part of the decree when the context clearly speaks to the contrary.
Therefore, we are inclined to hold that both "the decree" and "the decision" referred to in the clause mean the decree and the decision respectively taken as a whole and not in part.
The question as to the meaning of the word "decision" in the corresponding provision of the Code of 1882 (section 596) was considered by the Privy Council in Rajah Tasadduq Rasul Khan vs Manik Chand (1).
The question which arose for the decision of the Privy Council was whether the appellate decree in that case was one of affirmance or not.
Tile appellate decree had confirmed the trial court 's decision though on different grounds, and so it was urged that the appellate decree was not one of affirmance.
In rejecting this argument the Privy Council stated that "the natural, obvious and prima facie meaning of the word "decision" is decision of the suit by the Court, and that meaning should be given to it in the section" (section 596).
The Privy Council examined the definition of the word "judgment" in the Code of 1882 and came to the conclusion that the word "decision" meant the decision of the suit by the trial court and not the grounds stated in support of the said decision; in the result it was held that the appellate decree which confirmed the decision of the trial court though on different grounds was in law a decree of affirmance.
It would thus be seen that this decision undoubtedly supports the conclusion that the word "decision" in article 133(1) should mean not a part of the decision or the grounds given for it but the decision of the suit as a whole; and if that be so, the clause could be harmoniously construed to mean that in determining the character of the appellate decree we have to look at the appellate decree as (1) [1902] L.R. 30 I.A. 35. 162 a whole, 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 enquiry the nature of the variation made whether it is in favour of the intending appellant or otherwise would not be relevant.
It is then argued that this construction is inconsistent with the provision made by article 133(1)(a) in regard to the value of the subject matter of the dispute.
There is no doubt that in applying the test of the value of the subject matter of the dispute what we have to consider is the dispute in the Court of First Instance and the dispute on appeal.
In other words, the value of the subject matter has to be determined by reference to the subject matter which is actually the subject matter of the proposed appeal to this Court.
The argument 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 article 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 article 133(1)(a) is not well founded.
The same comment falls to be made in regard to the other argument based on the provision which requires the High Court further to certify that the 463 appeal involves some substantial question of law.
It is urged that this requirement has to be satisfied by reference to that portion of the decree which is proposed to be brought to this Court under appeal and that would suggest that even the test of affirmance should be applied by reference to the part of the decree under appeal and not by reference to the whole of the appellate decree.
Here again, the words used are that the appeal involves some substantial question of law which must necessarily mean the appeal as it is proposed to be brought and that must refer only to the decree brought under appeal.
Therefore, even this argument does not afford material assistance in construing the relevant clause with which we are concerned.
There is yet another argument which must be examined, It is contended that the adoption of the literal construction of the relevant clause relating to affirmance would lead to anamolous and unreasonable consequences.
It is pointed out that if the decision of the trial court is wholly confirmed the intending appellant would not be entitled to come to this Court as a matter of right unless there is a substantial question of law.
On the literal construction, however, he would be entitled to come to this Court even if there is a very minor and slight modification in the decision of the trial court and that too in his favour.
Prima facie it may no doubt seem somewhat unreasonable that even a slight modification made in the decision should give the intending appellant the right to come to this Court; but, on the other hand, even this position cannot be regarded as unreasonable because it would really be found to be consistent with the principle underlying the doctrine of affirmance.
What is the basic idea underlying the relevant provision? If two 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 464 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 go 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 consequence of the view we are inclined to take can be reasonably charac terised as opposed to common sense.
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 hypothetical considerations.
Then it is urged that the majority of the High Courts in India have taken the same view which the Madras High Court has taken in the present case and so we should be slow to interfere with the majority decision.
In support of this conclusion the principle of stare decisis is pressed into service.
We are not impressed by this argument.
It is 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 inappropriate 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 465 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 much assistance.
At this stage we may deal with another argument urged by Mr. Rama Reddy who appeared for some of the respondents.
He contends that in construing the relevant clause we may have regard to the fact that, the Constitution intended to restrict the right of the ' appellant to come to this Court and not to widen it.
In support of this argument be relies on the fact that the value of the subject matter prescribed by article 133(1)(a) is now made Rs. 20,000 whereas formerly it was Rs. 10,000, and he also relies on the provisions of article 133(3) under which no appeal shall lie to the Supreme Court from the judgment, decree or final order of one judge of a High Court.
In our opinion, there is no substance in this contention.
It is well known that in raising the amount of the value of the subject matter article 133 (1) (a) has merely partially recognised the fall in the price of the rupee and so it cannot be read as showing the intention to restrict the appellant 's right in any manner.
In regard to the provisions of article 133(3) there is no material change made by the Constitution since the position under section III of the Code of 1908 as well as section 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 against him.
In this connection it would be interesting to refer to three decisions which afford judicial background for 466 the controversy that has been agitated in the several High Courts for so many years past.
In Raja Sree Nath Roy Bahadur vs The Secretary of State for India in Council (1) a Full Bench of the Calcutta High Court had occasion to consider the effect of the relevant provisions of section 596 of the Code of 1882.
In a land acquisition case the applicant had claimed a sum of Rs. 77,000 odd as the value of his land.
The Collector had assessed the value at Rs. 28,287.
On a reference the judge upheld the Collector 's award.
The applicant then moved the High Court by appeal and in his appeal he valued his claim at Rs. 49,000.
The High Court partially allowed the appeal and granted him an additional sum of Rs. 7,000.
The applicant then applied for leave to appeal to the Privy Council and urged that the decree passed by the High Court on appeal was not a decree of affirmance and since the test of the value of the subject matter was satisfied be was entitled to go to the Privy Council.
This application was rejected by the High Court.
"The appellant desires", observed Maclean, C. J., "to appeal only against the decision of this Court so far as it affirmed the decision of the court below, nothing else.
This seems to be, in substance, as far as the subject of the appeal goes, a decree of affirmance".
The learned Chief Justice also added that whilst the decree of the High Court modified in the petitioner 's favour the original decree, as regards the subject matter of the proposed appeal to His Majesty in Council it most certainly affirmed the decree of the first court.
This judgment was pronounced in 1904; and the construction which it put on the relevant clause of section 596 is in conformity with the views for which the respondents contend in the present appeal.
The same point was raised before the Privy Council in Annapurnabai vs Ruprao (2).
In that case the plaintiff who claimed to have been adopted by the senior widow of Shanker Rao sued the junior widow of Shanker Rao (defendant 1) as well as the person who claimed to have been adopted by her (defendant 2) for possession of half the property of Shanker Rao.
(1) (2) (1924) L.R. 51 I.A. 319.
467 Both the defendants denied the plaintiff 's adoption land set up the adoption of defendant 2.
The trial court held that the plaintiff 's adoption had been proved and that the alleged adoption of defendant 2 had not been proved.
It, however, found that the plaintiff was bound to provide maintenance for defendant I at the rate of Rs. 800 per annum.
Defendant I had in that behalf claimed Rs., 3,000 per annum for( her maintenance out of the estate.
Upon appeal by the defendants to the Court of the Judicial Commissioner the trial court 's decree was modified by increasing the maintenance from Rs. 800 to Rs. 1,200 per annum.
In other respects the decree was affirmed.
The defendants then applied to the Court of the Judicial Commissioner for leave to appeal to the Privy Council.
Their argument that they were entitled to appeal to the Privy Council was rejected on the ground that the appellate decree was one of affirmance, and that a small change made by it in favour of the defendants did not affect that position.
It was this decision which was challenged before the Privy Council.
Lord Dunedin, who delivered a very short judgment on behalf of the Board, stated that in the opinion of their Lordships the contention of the petitioners ' coun sel as to the effect of section 110 of the Code of Civil Proce dure is correct, and the petitioners had a right of appeal.
In other words, this decision clearly shows that though the trial court 's decision had been varied to some extent in favour of the intending appellants it was held that the appellate decree was not one of affirmance and so the intending appellants were entitled to obtain leave to appeal to the Privy Council.
It does appear that the appellants in that case confined their appeal only to the amount of maintenance having regard to the concurrent findings made by the courts below in respect of other matters; and so the special leave granted to them was limited to the question of the said maintenance allowance.
That, however, had nothing to do with the decision of the Privy Council as to the character of the appellate decree.
The appellants did not want to agitate the other points and asked for permission to limit their appeal only to 468 the question of their maintenance; that is about all.
Thus it is clear that the decision of the Privy Council in that case construed the relevant provisions of section 110 literally and held that if the appellate decree makes any variation in the decision of the trial court may be in favour of the intending appellant it is not a decree of affirmance and the intending appellant was entitled to go to the Privy Council in appeal.
It is true that the judgment does not purport to discuss the question of construction but the conclusion has been emphatically recorded and there can be no doubt that conclusion proceeds on the literal construction of section 110 of the Code.
This judgment was pronounced in 1924.
Three years later the same question arose before the Calcutta High Court in Narendra Lal Das Chaudhury vs Gopendra Lal Das Chaudhury (1).
In that case the intending appellant had brought a suit for partition of the joint family property valued at Rs. 10,00,000.
A preliminary decree was passed against which an appeal was brought to the High Court.
It appeared that the first question which the plaintiff appellant raised was that the preliminary decree had given him a smaller share in the property than what he was entitled to get.
This contention was upheld by the High Court and in consequence his share was increased.
In that respect the High Court reversed the finding of the trial Court.
On other points raised by the plaintiff appellant the High Court confirmed the judgment of the trial court.
It was against this appellate decision that an application was made for leave to go to the Privy Council; and it was urged that as a result of the decision of the Privy Council in Annapurnabai 's case (2) the appellant was entitled to obtain leave; and that squarely raised the question about the effect of the decision in Annapurnabai 's case (2).
Chief Justice Rankin took the view that the only effect of the said decision was to reverse the conclusion of the Calcutta High Court in Raja Sree Nath Roy 's case (3) and nothing more.
"It appears to me", observed the learned Chief (1) A.I.R. 1927 Cal. 543.
(2) (1924) L.R. 51 I.A. 319.
(3) 469 Justice, "that the case of Annapurnabai (1) is not in itself a sufficient authority to justify this Court in abandoning the principle which it has with other High Courts acted upon; that is to say, I do not think that it 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".
The learned Judge then proceeded to express his 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 he added, "this Court and other High Courts have for many years acted upon that principle and I am not prepared to accept the case of Annapurnabai a,; going further than this that where there is a dispute as to the amount of decree or as to the amount of damages the reasoning of Raja Sree Nath Roy 's case (2) is not a correct application of that principle".
"We may take it", said the learned Chief Justice, "that where the amount is a question in dispute the fact that the courts differ and that the higher court differs in favour of the applicant does not mean that the decision is one of affirmance, but I am not, in a case of this kind, prepared to say that because on a totally different point, namely, a point about the share, the applicant has succeeded and succeeded altogether so that he has no further grievance in that matter, he can without showing a substantial question of law have a right to litigate upon other points upon which both the courts have been in agreement".
It is the interpretation thus put by Chief Justice Rankin on the decision in the case of Annapurnabai (1) that subsequently became the starting point of elaborate discussion in which legal subtlety was pressed into service and distinction was made between action arising on a single cause of action and giving rise to a single claim and actions in which different causes of actions were combined against different persons and different reliefs were claimed.
As we have just indicated, the learned Chief Justice undoubtedly entertained a doubt as to the correctness of the test of substance which was then applied by some of the High (1) (1924) L.R. 51 I.A. 319 (2) 60 417O Courts in interpreting the provisions of section 110 of the Code.
One feels tempted to observe with respect that if the learned Chief Justice had examined the question of construction afresh without reference to the prevailing practice or the decisions already pronounced by Indian High Courts he might have adopted the literal construction of section 110 and in that event perhaps all controversies that subsequently arose may have 'been avoided.
It now remains to indicate very briefly the position taken by different High Courts in this controversy.
In Chittam Subba Rao vs Vela Mankanni Chelamayya (1) a Full Bench of the Madras High Court was constituted to deal with this point because reported decisions of the said Court showed a difference of approach and a conflict of opinion.
Rajamannar, C.J., who delivered the judgment of the Full Bench, carefully examined the previous decisions of the Court and evolved three principles to govern the decision of the point.
These principles have been stated in the judgment thus (i) If the judgment or decree of the High Court varies the decision of the lower court in respect of a matter in controversy in the proposed appeal to the Privy Council, then there is a right of appeal not only to the person against whom the variation has been made, but even to the party in whose favour the variation has been made.
But it is necessary that the matter in respect of which there has been a variation should be the subject matter of the proposed appeal to the Privy Council.
(ii) A matter in controversy cannot be split up or analysed or dissected into component parts or arbitrary divisions.
The true test will be to determine the nature of the dispute or controversy.
(iii) If the matter in respect of which there has been a variation is not the subject matter of the proposed appeal, then such variation would not confer a right of appeal as regards matters unconnected with the matter in respect of which there has been a variation.
Ex hypothesi, this will be the case when the variation has been completely in favour of the applicant.
(1) I.L.R. [1953] mad.
1. 471 Having evolved 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 article 133 itself.
In regard to the said Article the lear ned 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 letter of the provision along with its substance".
Assuming that this principle can be legitimately invoked in construing a con stitutional 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 article 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 article 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 decisions 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 472 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.
This Madras view has been applied by the Andhra High Court in V. Lakshminarayana Sastry vs V. Sitaramma Sastry (1).
The majority 'judgment of the Allahabad High Court in Rani Fateh Kunwar vs Raja Durbijai Singh( ') which in fact preceded the Madras decision has adopted substantially the same approach and has come to the same conclusion.
Mr. Justice Bhargava, who agreed with the majority decision, has, however, placed his conclusions on grounds similar to those which we have adopted.
To the same effect are the decisions of the Assam, Bombay, Mysore and Nagpur High Courts (vide: G. C. Bardoloi vs Collector of Kamrup (3), Kapurji Magniram vs Pannaji Debichand (4), Govind Dhondu Kulkarni vs Vishnu Keshav Kulkarni(5) Kanakarathnammal vs V. section Loganatha Mudaliar(6) Ramchandra vs Ganpati (7).
The Calcutta High Court has generally adopted the view taken by vs Rankin, C. J., but as its decision in Probodh Chandra Roy vs Hara Hari Roy (8), shows the practice in the Calcutta High Court appears to be to treat the point as one of doubt and as Chief Justice Chakravarti has observed "where there is a doubt I would resolve it by deciding in favour of the applicant and granting him leave".
On the other hand, the Full Bench decision of the Punjab High Court in Union of India vs Kanahaya Lal Sham Lal (9) and the majority decision of the Patna High Court in Kanak Sunder vs Ram Lakhan have taken the view which we have adopted.
Before we part with this appeal we would like to 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 (1) A.I.R. 1959 Andh.
(2) I.L.R. [1952] 2 All.
(3) A.I.R. 1952 Ass.
(4) 31 B.L.R. 619, S.C.; A.I.R. 1929 Bom.
(5) I.L.R. (6) A.I.R. 1959 MYS.
(7) I.L.R. (8) A.I.R. 1954 Cal.
(9) I.L.R. [1957] Punj.
(10) I.L.R, [1956] 35 Pat.
499. 473 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 section 35 of the Code of Civil Procedure an order as to interest which the Court can make under section 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.
The result is the appeal must be allowed, the order passed by the High Court by which the appellant 's application for certificate has been refused must be set aside and the matter sent back to the High Court for disposal in accordance with law.
Parties to bear their own hearing costs but the respondent to pay the cost of court fees which the appellant would have had to pay if he had not been allowed to appeal as a pauper.
Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant brought a suit for the recovery of his moiety share of the joint family properties against his father and alienees from the latter and his case was that the alienations made by the father were not binding on his share of the properties.
The trial court dismissed the suit but the High Court on appeal reversed the decision of the trial court in respect of some of the properties, passed a preliminary decree for partition of those properties and confirmed the rest of the decree of the trial court.
The appellant applied for a certificate under article 133(1) Of the Constitution but the High Court rejected the same holding that the decree was one of affirmance and involved no substantial 453 question of law, following a decision of the Full Bench of that Court in Chittam Subba Rao vs Vela Mankanni Chellamayya.
The case admittedly satisfied the test of valuation prescribed by article 133(1)(a).
Held, that in construing the relevant clause of article 133(1) of the Constitution, which gives a constitutional right to the litigant to appeal to this Court, it would be inappropriate to adopt a technical or pendantic approach and the clause must be read as a whole and its material words given their plain grammatical meaning.
So construed, the correct test to determine whether an appellate decree affirmed the decision of the court below would be to compare the appellate decree, taken in its entirety, with the decision of the trial court taken as a whole.
If on such comparison it was found to do so, it was a decree of affirmance; but if it made a variation, whether for or against the appellant, it would be a decree of variation, the extent of the variation being wholly immaterial.
Chittam Subba Rao vs Vela Mankanni Chelamayya, I.L.R. [1953] Mad.
i, disapproved.
The words "appealed from" in the last part of article 133(1) are not words of limitation, and they do not refer to a part of the decree, that may be under appeal, but simply describe the decree viewed as a whole.
So also the word "decision" therein means the decision of the trial court as a whole and not the decision on any point falling for determination.
Rajah Tasadduq Rasul Khan vs Manik Chand, (1902) L.R. 30 I.A. 35, referred to.
Dhirendra Nath Sarkar vs Nischintapore Company, , held inapplicable.
The test in respect of value laid down by article 133(1)(a) is an independent condition that cannot control the meaning of the word 'decree ' in the last part of article 133(1), which provides for another additional and independent condition.
Raja Sree Nath Roy Bahadur vs The Secretary of State for India in Council, , Annapurnabai vs Ruprao (1924) L.R. 51 I.A. 319 and Narendra Lal Das Chaudhury vs Gopendya Lal Das Chaudhury, A.I.R. 1927 Cal.
543, considered.
Case law reviewed.
While any variation of the order as to costs, which is in the discretion of the Court under section 35 of the Code of Civil Procedure, cannot change the character of the appellate decree which is otherwise one of affirmance, variation of the order as to interest under section 34 of the Code must affect its character.
Any variation by concession or consent of parties or withdrawal of part of the subject matter of the decree cannot, however, affect its character.
58 454


judgement:
Appeal No. 104 of 1959.
Appeal by special leave from the judgment and decree dated December 19, 1956, of the Patna High Court in Appeal from the Appellate Decree No. 632 of 1949.
M. C. Setalvad, Attorney General of India and R. C. Prasad, for the appellants.
section P. Varma, for respondent No. 1.
N. section Bindra and D. Gupta, for Intervener.
April 27.
The Judgment of Sinha, C. J., Sarkar and Mudholkar, JJ., was delivered by Sarkar, J.
The judgment of Das Gupta and Ayyangar, JJ., was delivered by Ayyangar, J. SARKAR, J.
The parties to this litigation are all Hindus but it is not in dispute that the Mohammedan law of preemption is applicable to them by custom, nor that the appellants had a right of preemption.
The only question is whether the first demand called talab i mowasibat which has to be made after the completion of the sale in order that the right may be enforced, was made before or after such completion.
The making of the demand is not in dispute but the dispute is as to when the sale was completed.
The appellants had their residential house contiguous to the house owned by certain persons whom we may call Pandeys.
On January 31, 1946, the Pandeys executed a deed of sale in favour of the respondent purchaser in respect of their aforesaid house.
The appellants claim a right of are emption on account of this sale.
The consideration mentioned in the deed was Rs. 2,000.
There was a subsisting mortgage on that house and the deed provided that out of the consideration a sum of Rs. 200 would be left with 476 the respondent purchaser for clearing off that mortgage.
The deed also recited that the Pandeys had received Rs. 400 and "the remaining Rs 1,400 (Rupees fourteen hundred) in cash at the time of exchange of equivalents, (that is) at the time of (handing over) of the receipt of this deed. . .
On receipt of the whole and entire amount of consideration money we have put the said claimant into possession and occupation of this vended property as absolute owner in place of us, the executants and our heirs and representatives.
" The deed further stated, "this sale deed becomes operative from the date when we the executants affixed our signatures thereon.
Whatever title, we, the executants and our heirs had. . . with respect to this vended property, has become extinct, inoperative and null and void and the same has now been transferred to and acquired by the claimant.
" By the word "claimant", the respondent purchaser was referred to.
The deed was presented at the registration office for registration by the Pandeys on the day it was executed and it was left with the Registrar in the Registration Office for the necessary entries and copies being made, a receipt being given to the Pandeys.
On February 2, 1946, the appellants on coming to hear of the execution of the deed of sale made the talab imowasibat.
On February 7, 1946, the receipt granted by the Registration Office to the Pandeys was made over by them to the respondent purchaser who there upon paid the balance of the price as stipulated in the deed.
On February 9, 1946, the documents were copied in the Registrar 's books and thereupon the registration became complete as provided in B. 61 of the .
The respondent purchaser thereafter received the deed of sale from the Registrar 's Office on February 13, 1946.
The appellants filed their suit for preemption on September 9, 1946.
The suit was decreed by the trial court and this decision was maintained by the first Appellate Court.
The High Court, however, in second appeal set aside the decisions of the Courts below with the result that the suit stood dismissed and 477 the appellants have now come to this Court in further appeal.
The Mohammedan law of preemption is stated in Mulla 's Principles of Mohammedan law in these terms: "The right of preemption arises only out of a valid, complete and bona fide sale.
" This statement of the law is accepted by both the parties and there is no question that it is not correct.
There is furthermore no dispute that the sale to the respondent purchaser was valid and bona fide.
It is also agreed that one of the requisites before the right of pre emption can be exercised is the preliminary demand by the preemptor and that such demand must be made after the completion of the sale.
The case has been argued before us on behalf of the appellants on the basis that the sale was governed by the .
We will also proceed on that basis.
Section 54 of the provides that sale of tangible immovable property of the value of rupees 100 and upwards, which the house with which we are concerned is, can be made only by a registered instrument.
Section 3 of this Act defines " registered" as registered under the law for the time being in force regulating the registration of documents.
This, in the present case, means the Regis tration Act of 1908.
It is not in dispute that the registration under the is not complete till the document to be registered has been, copied out in the records of the Registration Office as provided in section 61 of that Act.
It was therefore con.
tended in the High Court that when a sale had to be made by a registered instrument it became complete only on the instrument of sale being copied in the books of the Registration Office.
The High Court accepted this view and held that the sale in the pre sent case, therefore, became complete on the completion of the registration of the instrument of sale which was done on February 9, 1946 when the instrument was copied out in the books of the Registration Office.
In this view of the matter, the High Court 61 478 came to the conclusion that the appellants were not entitled to enforce their right of preemption because they had not made the preliminary demand after the completion of the sale as the law required them to do, but before, that is, on February 2, 1946.
In answer to this view of the High Court, the learned Attorney General appearing for the appellants says that the High Court overlooked section 47 of the the effect of which was to make a registered document operate from the time from which it would have commenced to operate if no registration thereof had been required and not from the time of its registration.
His contention is that once a document is registered, as the deed of sale in this case was, it begins to operate from the time it would have otherwise operated and therefore, the position in this case is that the sale became operative and hence complete on January 31, 1946.
The learned Attorney General further contends that the proper construction of the deed of sale was that it became operative from the day it was executed and that if it was not so, it was not a sale but could only be an agreement to sell in which latter case his clients, though this present suit might fail, would be entitled, if they so desired, to enforce their right of preemption when the sale was completed in pursuance of that agreement.
As authority in support of his contention that in view of section 47 of the the sale in the present case must be deemed to have been completed on the day the instrument was executed, the learned Attorney General relied on Bindeshri vs Somnath Bhadry (1) and Gopal Ram vs Lachmi Misir (2).
We do not think that the learned Attorney General 's contention is well founded.
We will assume that the learned Attorney General 's construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct.
Section 47 of the does not, however, say when a sale would be deemed to be complete.
It only permits a document when registered, to operate (1) A.I.R. (1916) All. 199.
(2) A.I.R. (1926) All. 549.
479 from a certain date which may be earlier than the date when it was registered.
The object of this section is to decide which of two or more registered instruments in respect of the same property is to have A effect.
The section applies to a document only after it has been registered.
It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale, when the instrument is one of sale.
A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date.
Therefore we do not think that the sale in this case can be said, in view of section 47, to have been completed on January 31, 1946.
The view that we have taken of section 47 of the seems to have been taken in Tilakdhari Singh vs Gour Narain (1).
We believe that the same view was expressed in Nareshchandra Datta vs Gireeshchandra Das (2) and Gobardhan Bar vs Guna Dhar Bar (3).
With regard to the two cases on which the Attorney General has relied, it has to be observed that they were not concerned with a right of pre emption arising on a sale of property.
Bindeshri Prasad 's case (4) was concerned with a suit for zar i chaharum.
It does not appear from the report what that right was or when it arose.
It is not possible therefore to derive much assistance from it.
Gopal Ram 's case( ') was concerned with a right of pre emption arising on the grant of a lease and the question was whether the suit for the enforcement of such a right was barred by limitation.
It appears that article 120 was applied to that suit and it was held that the cause of action for the excrcise of the right of pre emption arose as soon as the lease was executed and even before it was registered though before the actual registration the suit for pre emption could not have been maintained.
(1) A.I.R (1921) Pat, 150.
(2) Cal.
979 (3) I.L.R. (1940) II Cal.
270 (4) A.I.R. (1916) All. 199.
(5) A.I.R. (1926) All 549.
480 This view was taken in reliance upon section 47 of the .
We are not aware whether the law of pre emption applicable to the case required that there should be a completed lease before the right to pre empt could be enforced.
If that law did so require, then we do not think that the case was rightly decided.
It was said in that case that "When the law has given to a transaction a retrospective effect, it must have that effect.
" We do not think that a transaction which when completed has a retros pective operation can be said for that reason to have been completed on the date from which it has that operation.
In the view that we have taken, it is not necessary to discuss the question of the construction of the instrument of sale in this case, that is, to decide whether on its proper reading the transfer was intended to take immediate effect on its execution or later on after the balance of the purchase money had been paid.
Nor do we think it necessary to pronounce on the other argument of the learned Attorney General that a transfer which does not convey the property immediately can only be an agreement to transfer.
We think that for these reasons this appeal must be dismissed and we order accordingly.
The appellants will pay the costs of this appeal.
AYYANGAR, J. We regret that we are unable to agree to the order dismissing this appeal.
The facts have been very fully set out in the judgment of Sarkar, J. and it is therefore unnecessary to repeat them.
The following matters are beyond dispute: (1) that the law that is applicable to govern the right of the appellant before us is the law of pre emption as understood in Mohammedan law, (2) that according to the principles of Mohammedan law, the right of pre emption arises and the 2 talabs have to be performed immediately on the completion of a valid, and bona fide sale, and (3) that the two talabs which are required to be performed by a person claiming the right of pre emption have been performed by the appellant.
There being further no dispute that a sale did take 481 place, the only point in controversy in the appeal is as to whether the talabs which were performed on February 2,1946 were performed by the appellant after the right of pre emption accrued to her, viz.,, after the sale in favour of the respondent was effected or were they premature.
At one time there was a controversy as to whether it was the principle of the Muslim law that would determine the point of time when a sale should be taken to be complete (under which system crucial significance was attached to two of the ingredients of a sale, viz., payment of consideration and delivery of possession) or whether after the enactment of the it was to the statute and to the creteria laid down by it that one has to turn to determine when a sale should be held to have taken place.
The former view found favour with the majority of the Full Bench of the Allahabad High Court in Begam vs Muhammad (1), Justice Banerjee dissenting from the majority.
This controversy, however, is long past and it has now been decided by this Court in Radha Kishan vs Shri Dhar Ram Chandra (2) that the provisions of the supersede the principles of the.
Mohammedan law as to sale and it was to the statute that one should look to find out whether, and if so when, a sale was complete in order to give rise to a right of pre emption.
Turning now to the provisions of the , in the case of a sale of immovable property of the value of Rs. 100 or over (as in the case before us) section 54 of the Act enacts that it could be effected only by a registered instrument; sale itself being defined as "transfer of ownership in exchange for a price paid or promised or part paid and part promised".
In other words, the essence of a transaction of sale consists in the transfer of ownership and this transfer has to be effected by "a registered instrument".
The while prescribing the formalities of writing and Registration, does not itself determine the point of time when a sale becomes complete.
"Registered" under the Transfer (1) I.L.R. 16 All. 344.
(2) ; 482 of Property Act means: "registered under the law for the time being in force regulating the registration of documents" (section 3).
When one turns to the , provision is made, inter alia for the time within which after its execution a document could be presented for registration, the persons who could so present, the office in which the document could validly be presented and registration effected and sub Part B of starting from section 58 deals with the procedure on admitting documents to registration.
Section 60(1) enacts: "After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word registered ', together with the number and page of the book in which the document has been copied." and section 61 which follows makes provision for the copying of documents in Public registers from which the word "registration" is derived and enacts: "61.
The endorsements and certificate referred to and mentioned in sections 59 and 60 shall thereupon be copied into the margin of the Register book, and the copy of the map or plan (if any) mentioned in section 21 shall be filed in Book No. 1.
(2)The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52.
" Much reliance has been placed by learned Counsel for the respondent and, indeed, in the judgment of the High Court, on the words the "registration of the document shall thereupon be deemed complete" occurring in sub section
(2) of section 61.
But in the context of the fasciculus of sections in which it appears it is clear that it refers to the fact that the registering officer had completed his duty and had no more to do with the document presented to him, beyond returning the original to the party entitled to receive the same.
In 483 our opinion, these words have nothing to do with the time from which the transaction covered by the registered document operates or with reference to the present context, when the sale evidenced by the deed, becomes complete.
Specific provision is made for these in section 47 of the which reads: "A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.
" The principles underlying sections 61(2) and 47 are not divergent.
It is not as if, that any delay by the regis tering officer which might take place owing to the pressure of work in his office or for other reason, has any effect on the rights of parties, quod their property or the time from when the deed operates, or as regards the effectiveness of the transaction, or the priority of transactions inter se.
It is not as if, documents executed on different dates, the parties intending them to operate at different times, have their intentions modified, if not nullified by the action or inaction of the registering officer, or any delay that might take place in his office.
A contention that though the Muslim law of sale is superseded by the and the , but yet the provision contained in section 47 of the is inapplicable to determine when a sale effected by a registered instrument should be complete could not be sustained on any principle or logic, or of course on any rule of interpretation of statutes.
In our opinion no distinction is possible to be drawn between a sale which is effective and one which is complete since they are merely different forms of expressing the same concept and for the same reason between the time from when a sale becomes effective and when it should be held to be complete.
As under Muslim law the talabs have to be performed only immediately after the preemptor receives information of the sale, the view we take of the applicability of section 47 of the , introduces no element of hardship in the exercise of the option.
We are, therefore, clearly of the opinion that the time when the sale becomes complete so as to 484 entitle the preemptor to perform the talabs should be determined by the application of the principle of intention laid down in section 47 of the Which is as much a part of the positive law governing the right of preemption as the provision of section 54 of the which, requires a registered instrument to effect a sale which gives rise to a right of preemption.
If, therefore, B. 47 of the should apply to determine the time from which the registered document should have effect or, in other words, the time from which the sale should be held to be complete, the intention of the parties would be the crucial and only test.
That has to be gathered by reference to the document itself read in the light of the surrounding circumstances, with however a proviso that if the document were clear and its terms explicit, no evidence to contradict them would be admissible.
Paragraph 4 of this document of the sale deed exhibit 'A ' dated January 31, 1946 recites the consideration for the same.
This was to consist of Rs. 2,000.
Out of this, it states that the vendors had received Rs. 400 in cash at the time of the execution of the document, and that Rs. 200 had been left with the purchaser for payment to a previous possessory mortgagee.
In regard to the balance of Rs. 1,400 the recital reads: "and received the remaining sum of Rs. 1,400 in cash at the time of exchange of equivalents, (that is) at the time of handing over of the receipt of this deed.
In this manner we have received the entire amount of consideration money for this vended property from the claimant and brought the same to our possession and use.
" It is, no doubt, true that the sum of Rs. 1,400 had not been received on January 31, 1946, the date of the execution of the document and that it was agreed that sum would be paid in exchange for the delivery of the receipt obtained from the Registrar in respect of the sale deed presented for registration.
But the use of the past tense clearly indicates that the vendor agreed to the promise to pay the balance of Rs. 1,400 as the consideration for the execution of the 485 document on January 31, 1946, as tantamount to an actual payment.
In other words, in terms of section 54 of the it was a transaction under which the property in the house was to be transferred in exchange for a price "part paid and part promised".
Paragraph 4 and the recital there do not indicate any intention that the title to the property was to be conveyed only on the payment of Rs. 1,400 on the surrender of the registration receipt.
If, however, there was any doubt as to what the intention of the parties was, it is made clear by the other stipulations and recitals which follow.
Paragraph 5 opens with the words: "On receipt of the whole and entire amount of consideration money we have put the said claimant into possession and occupation of this vended property as absolute owner in place of us the executants and our heirs and representatives.
" The reference to the receipt here is obviously based upon treating the entire consideration of Rs. 2,000 as having been received on the day of the execution of the document.
In other words, part of the consideration was paid and part promised and the promise was treated as the consideration in respect of the balance unpaid.
Besides and as if to reinforce their intention the deed goes on to state after the words of conveyance "I have executed the deed of absolute sale and jointly received Rs. 2,000 as per recitals in the body.
" That the title of the vendee was not to be postponed to any date beyond the date of the execution of the document is made clear by the further words in para 5 "It is desired that the said claimant should enter into and remain in possession and occupation of the vended property as an absolute owner" which was to be from and after the date of the execution of the deed.
Turning next to paragraph 6, there is an express stipulation as regards when the transfer should be deemed effective.
It says: "This sale deed becomes operative from the date when we, the executants affixed our signatures thereon" a recital which is repeated and reinforced by paragraph 7 in which dealing 62 486 with the title of the vendors, it is stated that the said title with respect to the vended property "has become extinct, inoperative and null and void and the same has now been transferred to and acquired by the claimant".
In the face of these recitals, covenants and stipulations which clearly express the intention of the parties that the deed should have effect from the date of its execution it seems to us that the argument that it could be postponed to a later date either the date when the registration was complete under the terms of section 61 of the Indian or to February 7, 1947 when on the registration receipt having been handed over to the vendee, the vendor received the balance of Rs. 1,400 is hardly tenable.
If this were the true legal effect of the deed and if by virtue of the provisions of the read in conjunction with those of the Indian , the title to the property was transferred to the vendee immediately on the execution of the document on January 31, 1946 the performance of the two talabs by the appellant on February 2, 1946 would be in time, legal, proper and effective to clothe her with a right to demand a conveyance in her favour.
It is only necessary to add that learned Counsel for the respondent did not contest the position that if on a proper construction of the sale deed exhibit 'A ' read in the light of its recitals and the relative statutory provisions there was a sale effective on January '31, 1946 the talabs performed by the appellant would not suffice to clothe her with the right which she claimed in the suit out of which this appeal arises.
We would accordingly allow the appeal and decree her suit with costs throughout.
By COURT.
In accordance with the opinion of the majority, the appeal is dismissed with costs.

summary:
P executed a sale deed on January 31, 1946, in respect of a house in favour of D and presented it for registration on the same day.
On coming to know of the execution of the sale deed, the appellant who had a right of preemption, made the talab i mowasibat on February 2, 1946.
The deed was copied out in the Registrar 's books on February 9, 1946, and thereupon the registration became complete as provided in section 61 of the .
The appellant filed a suit for preemption.
D resisted the suit on the ground that the sale was completed on February 9, 1946, and the talab had been made prematurely.
The appellant contended that in view Of section 47 a registered document operated from the time it would have otherwise operated and the sale was completed on the date of its execution.
Held (per Sinha, C. J., Sarkar and Mudholkar, jj.) that the sale was completed only on February 9, 1946, when the registration was complete, that the talab was made prematurely and that the suit must fail.
Section 47 merely permitted a document when registered to operate from a date which may be earlier than the date on which it was registered, it did not say when the sale would be deemed to be complete.
A sale which was required to be registered was not completed until the registration of the deed was completed.
Tilakdhari Singh vs Gour Narain, A.I.R. (1921) Pat. 150, Nareshchandra Datta vs Gireeshchandra Das, Cal. 979, and Gobardhan Bar vs Guna Dhar Bar, I.L.R. (1940) II Cal.
270, approved.
Bindeshri vs Somnath Bhadry, A.I.R. (1916) All. 199 and Gopal Ram vs Lachmi Himir, A.I.R. (1926) All. 549, distin guished.
Per Das Gupta and Ayyangar, jj.
The sale was completed on the day of execution and the talab was made at the right time.
Section 61 had nothing to do with the time when the sale evidenced by the registered deed became complete; it refers merely to the fact that the registering officer had completed his duty.
Section 47 provided when a sale was deemed to be completed.
There was no difference between the time when a sale 475 became effective and the time it could be held to be completed.
Under section 47 the crucial test for determining the time from which the registered document was to have effect or be deemed to be completed was the intention of the parties.
The sale deed shows that the parties intended that the deed should be effective from the date of execution.


judgement:
Nos. 232,233, 286, 309, 320, 351, 319, 350, 354 and 490 of 1951.
Applications under article 32 of the Constitution for writs to enforce the fundamental rights of the petitioners.
C. K. Daphtar (R. M. Hajarnavis, with him) for the petitioner in Petition No. 232.
M. C. Setalvad (G. N. Joshi and B. M. Hajarnavis, with him) for the petitioner: in Petition No. 233.
B. M. Hajarnavis for the petitioners in Petitions Nos. 286, 309 and 320.
V. N. Swami for the petitioners in Petitions Nos., 350 and 351.
N. section Bindra (B. section Narula with him) for the petitioners in Petitions Nos. '319, 354 and 490.
T. L. Shivde, Advocate General of Madhya Pradesh, for the respondent in all the petitions, the State of Madhya Pradesh.
December 22.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
These are petitions under article 32 of the Constitution of India for directions or orders or writs to enforce the fundaments rights, of the petitioners to property by prohibiting, the respondent, the State of Madhya Pradesh, from enforcing their alleged rights under the Madhya Pradesh Abolition of Proprietary Rights Act, 1950.
The several petitioners entered into contracts and agreements with the previous proprietors of certain estates and mahals in the State under which it is said they acquired the rights to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac and to cut and carry away teak and timber and miscellaneous special of trees called hardwood and 478 bamboos.
The contracts and agreements are in 'writing some of them are registered.
There is no dispute about their genuineness, and it has not been alleged that they are 'collusive or fraudulent transactions.
Their dates and the several sums of money paid as consideration are set out in the petitions.
The petitioners allege that they have spent large sums of money in the exercise of their rights, and his fact too is not controverted.
Petitions Nos. 232, 233, 286, 309 and 320 of 1951 relate to tendu leaves which grow in shrub jungles and which are used in the manufacture of beedis or country made cigarettes, a very extensive and competitive business carried on by some of the petitioners involving an outlay of one to two lakhs of rupees in some cases.
For instance, 406 contracts are involved in Petition No. 232 of 1951 ; the consideration paid comes to Rs. 1,65,385 and the expenses are alleged to be in the region of Rs. 1,90,000.
In Petition No. 233 of 1951 there are 785 contracts; the purchase money is Rs. 1,10,605 and the outlay byway of 'expenses is said to be Rs. 50,000.
Petition No. 319 of 1951 relates to the culture and cultivation of lac, and there are several lease deeds of different dates enuring for different periods; two of them go up to the years 1966 and 1967.
Teak,, timber and hardwood form the subject matter of the rights involved in Petition No. 350 of 1951 and the registered lease deed is dated 8th October, 1949, and it is for a term of ten years.
Petition No. 351 of 1952 involves tendu leaves and miscellaneous forest produce and timber.
Petition No. 354 of 1951 relates to bamboo forests, and Petition No. 490 of 1951 to hardwood and bamboo.
The contentions of the petitioners are mainly three in number.
They say that the rights acquired by them under these contracts and agreements were got before the passing of the Madhya Pradesh Abolition 479 of Proprietary Rights Act, 1950, and that the legislation therefore does not affect them.
It is urged next that they are not proprietors within the meaning of the Act and consequently the Act does not apply to them.
Lastly, the question is raised that the Act itself is ultra vires, as many of its material provisions offend their fundamental rights guaranteed under the Constitution.
The full title of the Act is the " Madhya Pradesh, Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 ", and it is Madhya Pradesh Act I of 1951.
It came into force on 26th January, 1951.
On the very next day, there was a notification under section 3 of the Act putting an end to all proprietary rights in estates, mahals and alienated villages and vesting the same in the State for the purposes of the State free of all encumbrances with effect from 31st March, 1952.
The validity of the Act was questioned by the affected proprietors in Visheshwar Rao vs The State of Madhya Pradesh (1) before this Court, and the Act was held to be valid.
The petitioners are concluded.
We have to consider only the other two points raised on behalf of the petitioners.
It is clear from the provisions in the impugned Act that only those rights of the proprietor vest in the State which the proprietor had on the specified date.
Section 3 provides that on and from a date to be specified by a notification by the State Government, all proprietary rights in an estate or mahal vesting in a proprietor shall pass from him to and vest in the State.
The consequences of vesting are given in section 4 of the Act, and it is provided that the vesting will take place, notwithstanding anything.
contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in this Act.
But this again deals only with the rights existing on the date of the notification the section is not retrospective.
(1) 480 Clause (a) speaks of all rights,title and interest vesting in the proprietor or any person having interest in such propreitory right through the proprietor.
Clause (b) is to this effect "all grants and confirmation Of title of or to land in the property so vesting Or Of or, to any right or privilege in respect of such property orland revenue in respect thereof shall, whether liable to resumption or not, determine;" The right or privilege referred to is the right or privilege of the proprietor or any person having interest in the proprietary right through the proprietor.
Clause (c) is quite clear on the subject; it runs thus: "all rents and cossesi in respect of any holding in the property so vesting for any period after the date of vesting and which.
but for the vesting, would be payable to the proprietor shall vest in and be payable to the State Government. ." The words " after the date of vesting " are important.
Sub section (3) of section 4 says Nothing contained in subsection (1) shall operate as a bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting by virtue of his proprietary rights and any such sum shall be recoverable by him by any process of law which but for this Act would be available to him.
" If the outgoing proprietor is entitled to, recover any sums as quid pro quo for what he has parted with under the transfer, it can only be on the basis that the transfer is a good and valid transaction unaffected by the Act.
Section 6 is very material, and it is in these terms ' (1) Except as provided in sub section (2), the transfer of any right in the property 'Which is liable 481 to vest in the state under this Act made by the proprietor at any time after the 16th March, 1950, shall,.
as from the date of vesting, be void.
(2) Where on the.
application of the transferor or the transferee, the Deputy Commissioner is satisfied that any transfer of property referred to in subsection (1) was made by a proprietor in good faith and in the ordinary course of village management, he may declare that the transfer shall, not be void* after the date of vesting.
" The date, 16th March, 1950, is probably the date when legislation on these lines was actively thought of, and sub section (1) hits at transfers made after this date.
This means that transfers before that date are not to be regarded as void.
Even in the case of transfers after the said date, sub section (2).
provides that the Deputy Commissioner may declare that they .are not void after the date of vesting, provided they were made in good faith and in the ordinary course of management.
, The scheme of the Act as can be gathered from the provisions referred to above makes it reasonably clear that whatever was done before 16th March, 1950, by the proprietors by way of transfer of rights is not to, be disturbed or affected, and that what vests in the State is what the proprietors had oil the vesting date.
If the proprietor had any rights after the date of vesting which he could enforce against the transferee such as a lessee or a licensee, those rights would no doubt vest in the State.
In all these petitions, the several contracts and, agreements were before the date of vesting, and many of them were prior even to the 16th March, 1950.
The petitioners had taken possession of the subject matter of the contracts, namely, tendu leaves, lac palsadies, teak, timber and hardwood, bamboos and miscellaneous forest produce.
Under the Indian Sale of Goods Act, "goods" include growing crops, grass and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale 482 notwithstanding the definition of "immovable property " in section 3 (25) of the General Clauses Act of 1897.
In Petition No. 232 of 1951 two sample agreements relating to tendu leaves are given as annexures A and B to the petitions.
They may be quoted in extenso for a clear understanding of the nature of the right created.
Exhibit A dated 16th November, 1950, is in these terms: " Receipt written in favour of Seth Chhotabhai Jethbai Patel Company shop Gondia, and written by Shri Madhavrao Gangadhar Rao Chitnavis shop Itan receipt is written that we are owners of forests of Tendu leaves of Monza Sawarla 0 12 0 Mauza Khatkheda 0 5 0 Mouza Nati Kheda 0 16 0 and Monza Welwa 0 16 0.
We have given contract (Theka) of cutting Tendu leaves from these four villages for one year that is till the end of June for Rs. 2,500 out of this we had received Rs. 300 on 21st September, 1950, at Bhandara and the balance Rs. 2,200 was received from your Bhandara shop through Balubhai.
Nothing remains to be paid to us.
You have a right to coppice the trees.
" The terms of Exhibit B dated 12th July, 1948, Emitting unnecessary portions are as follows: In the year 1948 A.D. theka patra is executed that in consideration of the amount received as detailed above I had given the full tendu leaves jungle for taking out tendu leaves for five years from 1949 A.D. to 1053 A.D.
I have immediately given possession.
Now you can take tendu leaves of the tendu leaves forests described above every year for five years till the end of June, 1953.
You may coppice the plants and take leaves.
At the end of June, 1953, you should return my jungle without damage or loss to me.
After the end of the period it depends upon my will whether or not I give you the forests on theka (again).
If any one obstructs you in coppicing or taking away leaves, I will be responsible for the damages.
Hence I have executed 483 this theka pathi for five years for consideration after reading and understanding.
I agree with it.
Dated 12th July, 1948, by pen of Waman Sadeshic Amte Petition Writer Bhandara.
" The contracts and agreements appear to be in essence and effect licenses granted to the transferees to cut, gather and carry away the produce in the shape of tendu leaves, or lac, or timber, or wood.
A similar agreement came up for consideration by the Judicial Committee of the Privy Council in Mohanlal Hargovind of Jubbulpore vs Commissioner of Income tax, Central Provinces and Berar, Nagpur (1) in connection with a question arising out of the Income tax Act.
Some of the observations contained in the judgment dealing with the nature of such an agreement are useful and may be quoted here : " The contracts grant no interest in land and no interest in the trees or plants themselves.
They are simply and solely contracts giving to the grantees the right to pick and carry away leaves, which, of course, implies the right to appropriate them as their own property.
The small right of cultivation given in the first of the two contracts is merely ancillary and is of no more significance than would be e.g., a right to spray a fruit tree en to the person who has bought the crop of apples.
The contracts are short term contracts.
The picking of the leaves under them has to start at once or practically at once and to proceed continuously.
" There is nothing in the Act to affect the validity of the several contracts and agreements.
The petitioner are neither proprietors within the meaning of the Act nor persons having any interest in the proprietary right through the proprietors.
There is no provision in the Act which extinguishes their rights in favour of the State. 'What exactly is meant by a ,proprietary right " under the revenue laws has been (1).I.L.R. , 63 484 pointed out at page 217 of Volume I of Baden Powell 's Land Systems of British India, where he says: The first thing that will strike the student is the .use of the term ' proprietary right ' in these pages and in Indian Revenue Books generally.
It does not occur in text books on English law or jurisprudence.
I presume that the use of such a phrase is due to the ad feeling that we rarely acknowledge anything like a complete unfettered right vested in any one person.
The interest in the soil has come to be virtually shared between two or even more grades, the cause of which we just now discussed.
It is true that, in many cases, only one person is called ' landlord ' or ' actual proprietor ' but his right is limited; the rest of the right, so to speak, is in the hands of the other grades, even though they are called 'tenants ' or by some vague title such as ' tenure holders. ' In many cases, as we have seen, this division of right is accentuated by the use of terms like sub proprietor ' or proprietor.
of his holding '.
The 'proprietary right seems then a natural expression for the interest held by a landlord, when that interest is not the entire 'bundle of rights ' (which in the aggregate make up an absolute or complete estate) but only some of them, the re mainder being enjoyed by other persons.
" The definitions given in the Act do not abrogate or vary this meaning.
The respondent State cannot invoke in its aid section 3, sub clause (1) of the Act which speaks of the vestina of proprietary rights free of all encumbrances, because the rights of the petitioners either as buyers or lessees or licensees are not encumbrances as ordinarily understood.
The last part of clause (a) of section 4 (1) indicates that mortgage debts and charges on the proprietary right are meant by encumbrances.
In this view, it becomes unnecessary to consider the question as to when title in the property passes to the transferee.
Section 4, sub section (3) of the Indian Sale of Goods Act which lays down that in the case of sale of future goods the contract amounts 485 only to an agreement to sell does not seem to be applicable to the contracts and agreements here, as the goods are not " future goods " as defined in subclause (6) of the Act which states that they mean goods to be manufactured or produced or acquired by the seller after the making of the contract of sale.
Benjamin says in his treatise on Sale (8th Edition) at page 136: " Things not yet existing which may be sold (that is to say, a right to which may be immediately granted) are those which are said to have a potential existence, that is, things which are the natural produce, or expected increase of some thing already owned or possessed by the seller.
A man may sell the crop of hay to be grown in his field, the wool to be clipped from his sheep at a future time, the milk that his cows will yield in the coming month, and similar things.
Of such things there could be, according to the authorities, an immediate grant or assignment, whereas there could only be an agreement to sell where the subject of the contract is something to be afterwards acquired; as the wool of any sheep, or the milk of any cows, which the seller might buy within the year, or any goods to which he might obtain title within the next six months.
" The goods covered by the present petitions are goods which have a potential existence, and according to the decisions discussed by the learned author, there can be a sale of a present right to the goods as soon as they come into existence.
Whether title passes on the date of the contract itself or later is really dependent on the intention of the parties, and as already stated, in these petitions the stipulated consideration has passed from the transferees to the proprietors, and possession also has been taken.
We hold that the respondent has no right to interfere with the rights of the several petitioners under the contracts and agreements in their favour set out in their petitions, and we hereby issue a writ prohibiting the State from interfering in any manner whatsoever with the enjoyment of those rights by the 486 petitioners.
In cases where the periods under the contracts have expired, or where the proprietors have ill to recover anything from the transferees after he date of vesting, the State will be at perfect liberty to assert and enforce its rights standing in the shoes of the proprietors.
The respondent will pay the petitioners their respective costs.
Petition allowed.
Agent for the petitioners in Petitions Nos.
232, 233, 286, 309 and 320 : Bajinder Narain.
Agent for the petitioners in Petitions Nos. 360 and 351: M. section H. Sastri.
Agent for the petitioners in Petitions Nos. 319, 354 and 490: Harbans Singh.
Agent for the respondents in all petitions: G. H. Rajadhyaksha.

summary:
The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act of 1950 put an end to all proprietary rights in estates, mahals and alienated villages situated in the State and vested them in the State for the purposes of the State, free from all encumbrances.
The petitioners, who had entered into various contracts and agreements with the proprietors of the estates before the date on which the estates vested in the State under the Act (and,some of them even before the 16th March, 1950) under which they were entitled to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac, and to out and carry away teak and timber and other species of trees, applied for writs under art 32 of the Constitution prohibiting the State from interfering with the rights they had, acquired under the contracts with the proprietors: Held, (i) On construction of the contracts in a question, that the contracts were in essence and effect licenses granted to the petitioners to cut, gather and carry away produce in the shape of tendu leaves, lac, timber, or wood and the petitioners were neither proprietors nor persons having any interest in the proprietary rights through the proprietors, within the meaning of the Act; (ii) The rights of the petitioners were not encumbrances within the meaning of the expression "free from encumbrances in section 3 . 1) of the Act and the petitioners were entitled to a writ against the State prohibiting the State from interfering with the rights of the petitioners under the contracts which they had entered into with the proprietors.
Mohanlal Hargovind vs Commissioner of Income tax, C.P,& Berar (I.L.R. [19491 Nag. 892) referred to.
Held also, that section 4 (3) of the Indian Sale of Goods Act which lays flown that in the case of sale of future goods the contract 477 amounts only to an agreement to sell did not apply to the contracts in the present case as "future goods" are defined in the Act as meaning goods to be manufactured or produced or acquired by the seller after making the contract of sale.