PETITIONER: MANAGEMENT COMMITTEE T. K. GHOSH'S ACADEMY Vs. RESPONDENT: T. C. PALIT & ORS. DATE OF JUDGMENT09/04/1974 BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ REDDY, P. JAGANMOHAN CITATION: 1974 AIR 1495 1974 SCR (3) 872 1974 SCC (2) 354 ACT: Constitution of India, 1950--Art. 133(1)(a) & (b)--Distinction between clause (a) and (b). HEADNOTE: The plaintiff-respondents filed a suit for the ejectment of the defendant appellant from the premises in dispute and for recovery of certain amount on account of arrears of rent. The defendant-appellant on the other hand claimed that-under the deed of trust they were entitled to occupy the said premises without payment of rent. The lower court decreed the suit in favour of the plaintiffs-respondents. On appeal the High Court set aside the decree for ejectment and reduced the amount for recovery. The High Court granted certificate of fitness under clauses (a) and (b) of Art. 133(1) of the Constitution. On appeal it was contended by the respondents that the High Court was wrong in granting the certificate of fitness and that it should be cancelled. Dismissing the application for cancellation of certificate of fitness, HELD : The appeal is maintainable under Art. 133 (1) (b) of the Constitution. To attract the application of Art. 133(1)(b) it is essential that there must be a judgment involving directly or indirectly some claim or question respecting property of an amount or value not less than rupees twenty thousand. The variation in the language used in clauses (a) and (b) of Art. 133(1) pointedly highlights the conditions which attract the application of the two clauses. Under clause (a) what is decisive is the amount or value of the subject matter in the court of first instance and "still in dispute" in appeal to the Supreme Court : under clause (b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from. The expression "property" is not defined but having regard to the use of the expression "amount" it would apparently include money. But the property respecting which the claim or question arises must be property in addition to or other than the subject matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject matter, clause (a) will apply : if there is involved in the appeal a claim or question respecting property of an amount or value not less than rupee twenty thousand in addition to or other than the subject matter of the dispute clause (b) will apply. [878 F-H] Chhitarmal v. M/s. Shah Pannalal Chandulal, [1965] 2 S.C.R. 751, referred to. The judgment of the High Court in the present case plainly did not affirm the decision of the trial court because the High Court set aside the decree for ejectment and also reduced the amount for the recovery of which decree for ejectment and also reduced the amount for the recovery of which decree had been awarded by the trial court. The variation of the decree of the trial court was in favour of the defendants-appellants but that circumstance would not detract from the fact that the judgment of the High Court was not one of affirmance of the decision of the trial court. In determining the character of the appellate decree what has to be looked into is the appellate decree taken in its entirety and compare it with the decision of the trial- court as a whole and decide whether the appellate decree is one of affirmance or not. In this enquiry the nature of the variation made whether it is in favour of the intending appellant or otherwise would not be relevant. [877 G-H] Tirumalachetti Rajaram v. Tirumalachetti Radhakrishnayya Chetty, [1962] 2 S.C.R. 452, followed. In the instant case the said premises were admittedly of the value of more than rupees twenty thousand. The school premises were plainly not the subject 873 matter of the dispute because if that had been so the case would have fallen under clause (a). On the contrary the present was a case relating to a claim respecting property of the value of more than rupees twenty thousand. The case as such would fall within the ambit of clause (b). [879 C] Surapati Roy & Ors. v. Rant Narayan Mukherji & Ors., 50 Indian Appeals 155, relied on. Bombay Gas Co. Ltd. v. Jagan Nath Pandurang & Anr. [1972] 3 S.C.R. 929 held inapplicable. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 570 of 1969.
From the Judgment and decree dated the 29th September, 1967
of the Patna High Court in Appeal from Original Decree No.
459 of 1961.
D. P. Uniyal and S. N. Singh, for the appellant.
S.C. Agarwala, V. J. Francis and S. S. Bhatnagar, for
respondent nos. 1 and 2.
The Judgment of the Court was delivered by
KHANNA, J. A decree for ejectment from the premises in
dispute and for recovery of Rs. 7,163/12/3 was awarded by
learned Additional Sub Judge Patna in favour of the two
plaintiff-respondents, against the Board of Trustees T. K.
Ghosh’s Academy Patna and other defendants. On appeal filed
by some of the defendants the Patna High Court set aside the
decree for ejectment. The amount for the recovery of which
decree had been awarded by the trial court was also reduced
to Rs. 3,725/2/-. The present appeal has been filed on
certificate by the Managing Committee T. K. Ghosh’s Academy
and other defendants against the decision of the High Court.
The two plaintiff-respondents are the sons of Shri Jadu Nath
Palit who founded in 1876 a school known as T. K. Ghosh’s
Academy. The school attracted some of. the best students
and Dr. Rajendra Prasad, Dr. B. C. Roy, Mr. Hasan Imam and
Mr. Sachidanand Sinha received their education in this
school. The school was run in premises which originally
belonged to one Mr. Boilard. Shri Jadu Nath died in 1901
leaving behind three minor sons, two of’ whom were the
plaintiff-respondents and the third was their brother Dr. K.
L. Palit. After Jadu Nath’s death, the management of the
school was looked after by the sons of Shri T. K. Ghosh in
whose memory the school had been founded. Shri T. K. Ghosh
was them brother-in-law of Shri Jadu Nath. A Managing
Committee was formed by the sons of T. K. Ghosh for the
management of the school in 1905 or 1906. Nearabout 1914
the management of the school was taken over by Shri Jadu
Nath’s sons. In 1918-19 them Managing Committee of the
school was reformed under the directions of the Board of
Secondary Education. On September 11, 1919 the school
building was purchased by the three sons of Shri Jadu Nath
from Mr. Boilarld as per sale deed Ex.C. On July 28, 1930
Dr. K. L Palit sold his share in the school building in
favour of his two brothers, viz-, the plaintiff-respondents,
as per sale deed Ex.Cl.
874
On August 13, 1950 the two plaintiff-respondents executed
Deed of Trust. Ex.P appointing Rai Bahadur Nirmal Chandra
Ghosh, Retired District and Sessions Judge and six others as
trustees of the school. The object and the subject matter
of the trust would be clear from the following :
“Whereas the settlors are the proprietors of
the High English School named T. K. Ghosh’s
Academy, new located in a building owned and
possessed by the settlors situated in Mahalla
Chowahatta thana Pirbahore district Patna.
And whereas the settlors being desirous of the
continuance of the school and the perpetuation
of the memory of the person after whom it is
named and the association of same with the
name of the institution, of the retention in
it of Bengali as a subject of instruction and
also as a medium of instruction as far as
possible and also of the improvement,
extension or alteration as regards the
standard and subjects of instruction in the
institution as may be considered suitable for
the benefit of students, have decided to
settle in trust for this purpose the said
school consisting of its name good will
together ‘with its funds, furniture, library
and other educational appliances and
equipments as a functioning institution
affiliated to the Patna University in the
manner and on the condition hereinafter
following.
Now this Deed witnesses as follows
1.In pursuance of_the said desire of the
settlors the settlors do hereby transfer and
assign unto the trustees the ,,aid High School
T. K. Ghosh’s Academy with all that property
consisting of the funds, furniture, library
and equipments described and detailed in the
schedule hereto to hold the same upon trust to
fulfil the object of the settlors and on the
conditions and with and subject to the powers
provisions and agreements herein contained.”
Clauses 4, 6 9, 10, 11 and 15 of the trust
read as under
“(4) The trustees will be entitled to nominate
2 (two) members out of themselves, to the
managing committee of the school in addition
to the Headmaster who will ex-officio be a
member.
(6)At least one male descendant of Babu
Jadu Nath Palit deceased shall, if available,
be always a member of the body of trustees.
(9)The trustees shall find other premises
for the location of the school and shift the
school there within 5 (five) years of the date
of the deed and vacate the present premises to
the settlors.
(10)The trustees shall forthwith start a
building fund for the school.
875
(11)The settlors will receive a house rent
of Rs. 250/per month for the said period of 5
(five) years for the premises now occupied by
the school as owners of the premises. the
settlors have agreed that any surplus left
over therefrom, after deducting-the amount
spent on necessary repairs of the house and on
taxes, ground rent and other necessary out-
goings in respect of the premises for the said
period of 5 (five) years will go as the
contribution of the settlors to the building
fund as provided in the preceding paragraph,
and the trustees will be entitled to receive
directly from the school such surplus and
deposit it in the said building fund.
(15) All matters and questions relating to the
proprietary rights in the school (exclusive of
the land and buildings where in the school, is
at present located, which does not from part
of the trust property) and its properties will
be disposed of by the trustees.”
It may be stated that the school building initially stood on
holding No. 20. In 1951 the building was extended to holding
No. 22 also. The upper portion of the building on holding
No. 22 is used for the headmaster’s residence and the lower
portion for running the classes. According to the plaintiff-
respondents, it was agreed that they would be paid a rent of
Rs. 37/8/- for the building on holding No. 22. The total
rent thus came to Rs. 287/8/- i.e. Rs. 250 for the building
on holding No. 20 and Rs. 3718/- for the building on holding
No. 22. It is further the case of the plaintiffs that in or
about June 1956 it was settled by the trustees and the
Managing Committee of the school with the consent of the
plaintiffs that out of the monthly rent of Rs. 287/8/- a
cash amount of Rs. 190/- would be paid directly to the
plaintiffs and the balance,of Rs. 97/8/- could be paid by
the Managing Committee of the school to the trustees for
payment of latrine and water taxes of the municipality and
for meeting costs of periodical repairs. As the premises
were not vacated within five years of the execution of the
Deed of Trust, the plaintiff-respondents after serving
notice of demand filed the present suit on July 28, 1959
against the Board of Trustees r. K. Ghosh’s Academy and
other defendants. One of the reliefs claimed was for
ejectment of the defendants from the premises in dispute.
The other relief claimed was for recovery of Rs. 7,163/12/3
on account of arrears of rent from August, 1956 till July,
1959 and other items, the details of which were given in
Schedule I to the plaint.
The suit was contested by defendants No. 2, 3, 7 and 12
in-their capacity as members of the Managing Committee. The
other defendants, including the trustees, did not contest
the suit. According to the contesting defendants, there was
no relationship of landlord and tenant between the
plaintiffs and T. K. Ghosh’s Academy and its Managing
Committee. It was also stated that there was no contract to
pay the rent of Rs. 287/8/- per month. The Deed of Trust was
stated by the contesting defendants to be fraudulent,
illusory and void document. According further to the
contesting defendants, the school was founded by the father
of plaintiffs for the uplift of education and for public
good with no motive to derive any personal benefit. The
building was
876
also stated to have been dedicated by the founder for the
use of the public.
The trial court, as mentioned earlier, decreed the suit. It
was held that the Deed of Trust was a genuine and valid
document and was binding on the school and its Managing
Committee. As regards the existence of the relationship of
landlord and tenant, the trial court held that the contract
of tenancy was evidenced by the Deed of Trust and was
binding upon the parties.
In appeal before the High Court contention was advanced on
behalf of the contesting defendants that there had been a
dedication of the school building in favour of the school by
the father of the plaintiff-respondents who had founded the
school. Argument was further advanced that there was no
relationship of landlord and tenant between the parties and
the Deed of, Trust was not binding upon the contesting
defendants. Contention was also raised that the suit for
ejectment was not maintainable unless the tenancy had been
determined by the giving of a notice under section 106 of
the Transfer of Property Act. The High Court rejected the
contention that there had been dedication of the school
building. Likewise, the contention that there did not arise
the relationship of landlord and tenant between the parties
was rejected. The High Court set aside the decree for
ejectment because it was of the view that such decree could
be awarded only after determination of the tenancy by giving
a notice under section 106 of the Transfer of Property Act.
The High Court further reduced the amount for the recovery
of which the decree had been awarded, because it was of the
view that certain deductions were permissible out of the
amounts claimed by the plaintiffs. In the result the amount
for which decree had been awarded was reduced to Rs.
3,725/2/-.
At the hearing of the appeal Mr. Agarwal on behalf of the
plaintiff-respondents has contended that the High Court was
in error in granting a certificate of fitness for appeal to
this Court in favour of the defendant-appellants. An
application has also been filed on behalf of the plaintiff-
respondents for canceling the certificate of fitness granted
by the High Court. This application has been resisted by
the appellants.
We may state at the outset that the High Court granted the
certificate of fitness under clauses (a) and (b) of article
133(1) of the Constitution. Mr. Uniyal on behalf of the
appellants has frankly stated that the certificate could be
granted only under clause (b) and not under clause (a). We
agree with Mr. Uniyal in this respect, and are of the
opinion that there is no sufficient ground for canceling the
certificate of fitness.
The plaintiff-respondents, as would appear from the resume
of facts given above, had prayed for a decree of ejectment
from the premises in dispute and for recovery of Rs.
7,163/76,/-. The jurisdictional value of the suit was
mentioned to be Rs. 10,613/76/- consisting of the amount of
Rs. 7,163/76 and Rs. 3450 representing 12 months rent at the
rate of Rs. 287/50. The present case did not fall under
clause (a) of article 133(1) because it could not be
said that the amount or
877
value of the subject-matter of the dispute was not less than
twenty thousand rupees. Question then arises whether the
defendant-appellants were entitled to certificate under
clause (b) of article 133(1). Article 133(1) at the
relevant time read as under :
“133 (1) An appeal shall lie to the Supreme
Court 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 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 ,my 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.”
It may be stated that there has been a subsequent amendment
of article 133(1) by the Constitution (Thirtieth Amendment)
Act, 1973. We are, however, in the present case concerned
with the article as it stood before the amendment. Perusal
of clause (b) of article 133(1) shows that an appeal shall
lie to this Court from any judgment, decree or final order
in a civil proceeding of a High Court if the High Court
certifies that the judgment, decree or final order involves
directly or indirectly some claim or question respecting
property of the value of not less than twenty thousand
rupees. It is further necessary that where the judgment,
decree or final order appealed from affirms the decision of
the court immediately below, the High Court should certify
that the appeal involves some substantial question of law.
The judgment of the High Court in the present case plainly
did not affirm the decision of the trial court because the
High Court set aside the decree for ejectment and also
reduced the amount for the recovery of which decree had been
awarded by the trial court. It is no doubt true that the
variation of the decree of the trial court was in favour of
the defendant-appellants but that circumstance would not
detract from the fact that the judgment of the High Court
was not one of affirmance of the decision of the trial
court. As observed by the Constitution Bench of this Court
in the case of Tirumalachetti Rajaram v. Tirumalachetti
Radhakrishnayya Chetty(1), in determining the character of
the appellate decree; we have to look at the appellate
decree taken in its entirety and compare it with the
decision of the trial court
(1) [1962] 2 SCR 452.
878
as a whole and decide whether the appellate decree is one of
affirmance or not. In this enquiry the nature of the
variation made whether it is in favour of the intending
appellant or otherwise, would not be relevant.
As regards the applicability of clause (b) of article
133(1), we may observe that there is a vital distinction
between clauses (a) and (b) of article 133(1) and the
areas covered by the two clauses are clearly demarcated.
Clause (a) speaks of the subject-matter of the dispute and
what is required by the clause to bring a case within its
ambit is that the amount or value of the subject-matter of
the dispute in the court of first instance and still in
dispute was and is not less than twenty thousand rupees or
such other sum as may be specified in that behalf by
Parliament by law. As against that, clause (b) of Article
133(1) makes no mention of the subject-matter of the dispute
and it is immaterial for this clause as to what is the
amount or value of the subject-matter in dispute. What is
essential to invoke clause (b) is that the judgment, decree
or final order should involve directly or indirectly some
claim or question respecting property of the amount or value
of not less than twenty thousand rupees or such other sum as
may be specified in that behalf by Parliament by law.
Clause (b) thus deals with a claim or question respecting
property. If a judgment, decree or final order involves
claim or question respecting property and it is shown that
the property is of the amount or value of not less than
twenty thousand rupees, the clause would be attracted. It
is plain from the language of clause (b) that the property
respecting which claim or question is involved in the
judgment, decree or final order is not the subject matter of
the dispute, for if that property were the subject matter of
the dispute the case would fall not under clause (b) but
under clause (a) of article 133(1). It may also be
mentioned that the requirement of clause (b) would be
satisfied if the judgment, decree or final order involves,
not directly but even indirectly, some claim or question
respecting property of the amount or value of not less than
twenty thousand rupees.
To attract the application of article 133 (1) (b) it is
essential that there must be-omitting from consideration
other conditions not material a judgment involving directly
or indirectly some claim or question respecting property of
an amount or value not less than Rs.20,000. The variation in
the language used in clauses (a) and (b)of article 133
pointedly highlights the conditions which attract the
application of the two clauses. Under clause (a) what is
decisive is the amount or value of the subject-matter in the
court of first instance and “stilt in dispute” appeal to the
Supreme Court : under clause (b) it is the amount or value
of the property respecting which a claim or question is
involved in the judgment sought to be appealed from The
expression ‘property” is not defined in the Code, but having
regard to the use of the expression “amount” it would
apparently include money. ‘But the property respecting
which the claim or question arises must be property in
addition to or other than the subject-matter of the dispute.
If in a proposed appeal there is no claim or question raised
respecting property other than the subject-matter, clause
(a) will apply : if there is involved in the appeal a claim
or question respecting property of
879
an amount or value not less than Rs. 20,000 in addition to
or other than the subject-matter of the dispute clause (b)
will apply (see Chhitarmal v. M/s Shah Pannalal
Chandulal(1).
Keeping the above principles in view, we have no doubt that
the ,case of the appellant falls under clause (b) of article
133(1). As would appear from the resume of facts given
earlier, the case of the plaintiffs was that the defendants
were liable to pay rent for being in occupation of the
school premises. As against that, the case of the
defendant-appellants was that they were entitled to occupy
the said premises for carrying on the school without payment
of rent. It is manifest that the judgment and decree of the
High Court as well as the trial court involved a claim or
question respecting the school premises. The said premises
are admittedly of the value of more than rupees twenty
thousand. The school premises were plainly not the subject-
matter of the dispute because if that had been so, the case
would have, fallen under clause (a). On the contrary, the
present was a case relating to a claim respecting property
of the value of more than rupees twenty thousand. The case
as such would fall within the admit of clause (b). We may
in this context refer to a decision of the Judicial
Committee in the case of Surapati Roy & Ors. v. Ram Narayan
Mukherji & Ors.(2). Question which arose in that case was
regarding the validity of a certificate granted by the High
Court under section 110 of the Code of Civil Procedure.
Though the rent claimed in the suits was less than Rs.
10,000 the High Court granted a certificate of fitness.
Objection was taken before the Judicial Committee regarding
the validity of the certificate, on the ground that the
subject-matter was of a value of less than, Rs. 10,000. The
objection was repelled by the Judicial Committee in the
following words :
“The subject matter in dispute relates to a recurring
liability and is in respect of a property considerably above
the appealable value. The certificate in the circumstances
is quite in order.”
Reference has been made by Mr. Agarwal to the decision of
this Court in the case of Bombay Gay Co. Ltd. v. Jagan Nath
Pandurang & Anr.(3). The respondent in that case filed
applications under the Payment of Wages Act claiming
overtime wages for the period 1957 to 1958 and wages for
weekly off days for the period 1962 to 1963, The appellant
filed appeal to this Court against the judgment of the High
Court setting aside the order of the appellate authority
holding the claim to be time-barred. The appeal was filed
on the basis of a certificate under article 133(1)(b). It
was held that the certificate issued by the High Court under
article 133(1)(b) was not proper. Question was posed in
that case that the, certificate could be granted under the
above clause as there was a recurring liability which if
calculated for subsequent years would come to Rs. 20,000 or
more. This Court was not impressed with the above argument.
The said case
(1) [1965] 2 SCR 751.
(2) 50 Indian Appeals 155.
(3) [1972] 3 SCR 929.
3-84SuPCI/75
880
cannot be of much assistance to the plaintiff-respondents
because in that case there was no claim or question
respecting property of the value of more than Rs. 20,000.
In he present case we have both the elements, namely, of a
recurring claim and of a claim in respect of property of the
value of more than Rs. 20,000. We, therefore, hold that the
appeal is maintainable under article 133(1)(b) of the
Constitution. The application for cancellation of the
certificate of fitness granted by the High Court is
dismissed.
Coming to the merits of the appeal, we find that till the
execution of the Deed of Trust on August 13, 1950, the
school in question was treated as a proprietary school.
This is clear from the inspection note dated December 10,
1947 of the Inspector of Schools. According to the
inspection note, this institution was a proprietary school
and the proprietors made good any deficit that accrued in
running the school efficiently. In the annual statement
dated January 8, 1950 relating to the school which had to be
furnished by the school authorities to the Board of
Secondary Education, it was mentioned that the proprietors
of the school were the plaintiff-respondents. It was by
Deed of Trust dated August 13, 1950 that the plaintiff-
respondents transferred and assigned to the trustees
property consisting of the funds, furniture, library and
equipment described and detailed in the Schedule to the
Trust Deed. The Trust Deed, however, made it clear that the
land and building wherein the school was located did not
form part of the trust property. As the school did not own
any building of its own and was being run in the building
belonging to the plaintiff-respondents, it was resolved by
the trustees that efforts be made for acquiring land for the
school building and for collecting and depositing funds for
the construction of the building. This is clear from the
resolutions passed in the meetings of the trustees held on
May 21, 1951 and April 20, 1952.
It has been argued on behalf of the appellants that no
liability for payment of rent can be fastened upon the
defendants and that the High Court was in error in holding
to the contrary. There is, in our opinion, no force in this
contention. It has been proved upon the material on record
that the Managing Committee has been receiving deficit
grants from the Government on the basis of statements
showing house rent payable by it for school building to be
Rs. 250 plus Rs. 37.50 per month. In view of the fact that
the school receives grant from the Government on the
representation that an amount of Rs. 287.50 has to be paid
on account of house rent, it hardly lies in the mouth of the
appellants to assert that there is no liability for the
payment of rent for the school building. In addition to
that, we find that the Managing
881
Committee in its resolution passed in the meeting held on
December 23, 1954 admitted that an amount of Rs. 287.50 was
to be paid as rent to the proprietors for the school
premises including the portion in the occupation of the
headmaster. The fact that rent of Rs. 287.50 was agreed to
be paid for the school buildings was also mentioned in the
audit report relating to the school for the period April
1956 to October 1956.
In view of the above material, we find no cogent ground to
interfere with the judgment of the High Court maintaining
decree for recovery of money to the extent of Rs. 3,725/2/-
in favour of the plaintiff-respondents. The appeal
consequently fails and is dismissed, but in the
circumstances without costs.
P.B.R Appeal dismissed.
882