Rimmalapudi Subba Rao vs Noony Veeraju And Ors.

on 22 March, 1951 27/06/22, 18:12

Indian Kanoon - http://indiankanoon.org/doc/257092/ Desktop View

Madras High Court

Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951
Equivalent citations: AIR 1951 Mad 969, (1951) 1 MLJ 95
Author: S Rao
Bench: Rajamannar, P Sastri, Somasundaram

ORDER Subba Rao, J.

1. Before we dispose of the application finally we think it is necessary to get an authoritative

decision by a Full Bench on the meaning of the words "substantial question of law"
ocourring in Article 133, Constitution of India. In Mahadeva Royal v. Chikka Royal, 1942-1
M.L.J. 309, Pandrang Row and Abdur Rahman JJ. held that a question is a substantial
question of law if the question of law affects the rights of the parties substantially. At page
310 the learned Judges say :

"Mr. Venkatarama Sastri, the learned counsel for the respondent, contends that the contention
in regard to their admissibility is flimsy and without any force and cannot be said to raise a
substantial question of law. We were of opinion that there was no substance in the contention
advanced by the learned Advocate General; but if the words 'substantial question' are to be
understood in their being of substance to the parties, we must hold that the decision in regard
to the non-admissibility of the documents is a sub-tantial question which would entitle the
petitioner to have a certificate."

With great respect to the learned Judges we cannot agree. If the judgment is correct, it will
lead to this position. Suppose in an appeal a question of limitation is raised and though that
question is disposed of in one way by the Judicial Committee, or the Supreme Court or by a
Full Bench of a High Court, if that question of limitation affects substantially the rights of the
parties, the High Court will be bound to give leave under Article 133 of the Constitution of
India. In our view, the word "substantial" qualifies the expression "question of law" and not
the subject-matter of the appeal. Unless a question of law is one of importance and difficulty
or in regard to which there is a reasonable doubt or difference of opinion, it cannot be a
substantial question of law within the meaning of the Article.
2. Mr Narasaraju relied upon the decision of the Judicial Committee in Raghunath Prasad
Singh v. Deputy Commr. of Partabgarh, 2 Luck. 93, in support of his argument. But in that
judgment the Judicial Committee only decided that a substantial question of law does not
mean a question of general importance but a substantial question of law between the parties.
It did not purport to decide that any question of law, however flimsy and covered by
authority, is a substantial question of law if it substantially affects the rights of parties. To
avoid unnecessary conflict of decisions, we think that this is a fit case for referring the
following question to a Full Bench : "Whether the words 'substantial question of law'
occurriug in Article 133 of the Constitution of India mean an important or difficult question

https://indiankanoon.org/doc/257092/?type=print Page 1 of 8
Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951 27/06/22, 18:12

of law or any question of law affecting the rights of parties?" The matter may be placed
before the Honourable the Chief Justice for the suitable orders. (In pursuance of the afortsaid
Order of Reference, this petition coming on for hearing, the Court expressed the following
opinion) :
OPINION Rajamannar, C.J.
3. The question referred for decision by a Pull Bench runs as follows :
"Whether the words 'substantial question of law' occurring in Article 183 of the Constitution
of India mean an important or difficult question of law or any question of law affecting the
rights of parties ?"
The question as framed appears to contemplate only two alternatives, namely, that either it
should be held that every question of law affecting the rights of parties is a substantial
question of law. or it is only an important or difficult question of law that would come within
that description. It became evident during the course of the argument that tbe two alternatives
are not exhaustive and there may be questions which though they may not be very important
or difficult, could nevertheless be called substantial questions. Actually in the order of
reference there is a third category indicated in the following passage:
Unless a question of law is one of importance and difficulty or in reaard to which there is a
rensonable doubt or difference of opinion it cannot be a substantial question of law within the
meaning of the article."

The condition that, where the judgment, decree or final order appealed from affirms the
decision of the Court immediately below, the High Court should also be satisfied that the
appeal involves some substantial question of law before it can grant leave to appeal against a
decision of the High Court to the Supreme Court, is the identical condition imposed in
respect of an appeal to the Judicial Committee of the Privy Council under Section 110, Civil,
P. C. (hereinafter referred to as the Code). This condition which is found in the Codes from
1877 onwards was for the first time introduced by the Privy Council Appeals Act No. VI of
1874. Section 5 which enacted that :
"Where the decree appealed from affirms the decision of the Court immediately below the
Court passing such decree the appeal must involve some substantial question of law."

In the Code of 1877, Section 596 contained the corresponding provision in exactly similar
terms. I may be not without interest to mention that the validity of this provision was
attacked on the ground that it was ultra vires of the power of the Indian Legislature as being
curtailment of the jurisdiction given to the High Court by the Letters Patent, but it was held
not to be so (Vide in the matter of Feda Hossein and Co. 1 Cal 431). Section 596 of the Code
of 1882 and Section 110 of the Code of 1908 merely reproduced the original provision except
that in the Code of 1908 the words "or final order" were added after "the decree."
4. The question when an appeal could be held to involve some substantial question of law did

https://indiankanoon.org/doc/257092/?type=print Page 2 of 8
Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951 27/06/22, 18:12

come up before the Courts in India soon after the Act of 1874. It was decided as early as
Moran v. Mittu Bibee, 2 Cal. 228, that the substantial question of law need not be restricted
to questions arising on the facts found concurrently by the Courts below but may include a
question arising on the evidence . independently of the finding of the Courts upon such
evidence. It was also recognised from the very beginning that in dealing with an application
for leave to appeal it is not enough to grant a certificate that it appears from the grounds of
appeal that a question of law is involved; the Court must also find that there really is a
substantial question of law raised (See Broughton's Commentaries on the Civil Procedure
Code, 1878, p. 704 citing a decision of Markby J. in 1874).

5. It becomes therefore important to determine what exactly is connoted by the word

"substantial" in the context. Now, the word "substantial" has two distinct shades of meaning.
" It means "essential, material". In legal parlance, it often is understood as "belonging to or
involving an essential right or the merits of a matter" (See Warton's Law Lexicon). The word
also means "having substance; real worth" (See Oxford Dictionary). In Sections 10 and 11 of
the Code the word "substantially" is used in the former sense of "materially" "essentially" i.
e. not incidentally.

6. Obviously, a question of law of general public importance, the decision of which is likely
to affect a large section of the public, will be a substantial question of law. A question of law
on which there is great divergence of judicial opinion will be a substantial question of law. A
view was taken in the Indian Courts that it is only when an appeal to the Privy
Council.involves a question of this nature and it is likely that the appeal may result in the
enunciation of new legal principles or the resolving of the conflict of judicial opinion that
leave should be granted on the ground that there is a substantial question of law. This view is
well represented in an appeal which went up to the Privy Council from the Chief Court of
Oudh. In Raghunath Prasad v. Deputy Commr. of Partabgarh, 2 Luck. 93 (P. C.), the learned
Judges of the Chief Court of Oudh after pointing out that the only question of law arising was
as to the true construction of a will said :

"That, to our minds, is not a 'substantial question of law' though it is a question of law. It is
not alleged that any recognised principle applicable to the construction of a document of the
nature of the present will has been misunderstood or misused by this Court, nor does our
decision lay down any general principle of construction. The construction which we have
placed upon the will in question is of no interest to any person outside the parties to this
litigation. The old Court of the Judicial Commissioner of Oudh, to which the Court has
succeeded, consistently adhered to the view that the words 'substantial question of law' mean
a question of general importance and do not include the construction of a document in which
the parties alone are interested."
7. The learned Judges therefore dismissed the application for leave. There was then a petition
for special leave to appeal in which their Lordships considered whether the matter fell within
the last clause of Section 110 of the Code. Their Lordships ruled that a substantial question of

https://indiankanoon.org/doc/257092/?type=print Page 3 of 8
Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951 27/06/22, 18:12

law did not mean a question of general importance but that it meant "a substantial question of
law as between the parties in the case involved". An attempt was made by the counsel for the
respondent to show that on the merits the decision of the Court below was obviously right,
and therefore there was no substantial question of law, but his attempt did not succeed. Their
Lordships did not think that it would be quite safe in taking that view in a case which
certainly occupied the Court below for a very long time and on which there was a very
elaborate judgment; they thought that upon the face of the matter there was, as between the
parties, a substantial question of law. In Gruran Duta v. Bam Ditta, 55 Cal. 944 (P. C.), the
question was whether a deposit made by a Hindu of his money in a bank in the joint names of
himself and his wife on condition that it was payable to either or the survivor, constituted a
gift by him to his wife. The Judicial Commissioner of North West Frontier Province refused
an application lor leave to appeal, but special leave to appeal was granted by the Board. At p.
949, their Lordshipa refer to what was decided in Raghunath Prasad Singh v.

Deputy Commr. of Partabyarh, 2 Luck. 93 (P. C.) in these terms :

''In the case of Raghunath Prasad Singh v. Deputy Commr. of Partahgarh, 2 Luck. 93 (P. C.),
it was held that a substantial question of law, within the last clause of Section 110, Civil P. C.
does not mean a substantial question of general importance but a substantial question of law
as between the parties in the case involved."
It must therefore be taken as now conclusively settled under the Code (and the same must
hold good in construing Article 133 of the Constitution) that a substantial question of law
need not be a question of general importance. It is sufficient if it arises between the parties.
This, however, does not mean that every question of law as between the parties is a
substantial question of law. In the paraphrase by the Privy Council the word "substantial"
again occurs in addition to the phrase "as between the parties". It has been held time and
again and we have not come across any authority to the contrary, that any question of law is
not as such a substantial question of law if it arises between the parties. Nor did we
understand Mr. Narasaraju who appeared for the petitioner to argue for the contrary though
probably that was his line of argument before the learned referring Jucges. Otherwise, the
question would not have been framed as it has been. It may be argued that a question of law
the decision of which materially affects the rights of the parties is a substantial question of
law. If it is merely incidental and does not affect the merits in essentials, then it will not be a
substantial question. This test is no doubt simple and easy to apply, but we do not think that
this is the correet test. Logically this test would lead to the position that even a palpably
absurd plea raised by a party would involve a substantial question of law simply because the
decision on the merits of the case would be directly affected by it. We have also not come
across any case in which this test has been adopted. But apparently the decision in Mahadeva
Royal v. Chikka Royal 1942-1 M L. J. 309 was understood by the learned Judges who made
the reference as accepting this test as correct. But before we deal with that decision, I think it
will be useful to run over some of the decisions of this Court to find out how far the learned
Judges in that case could be said to have differed from the principles laid down in them. I am

https://indiankanoon.org/doc/257092/?type=print Page 4 of 8
Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951 27/06/22, 18:12

leaving from consideration decisions which dealt with applications for leave on the ground
that Section 109 Clause (c) would apply. In Alakh Narayan v. Chinna Jogudu, A. I. R. (20)
1933 Mad. 221, Ramesam and Madhavan Nair JJ while accepting the proposition that the
existence of a point of law by itself does not give a right of appeal to the Privy Council under
Section 110 of the Code and that there must be a substantial question of law and that there
need not be a question of general importance, held that a fairly arguable question of law, i. e.,
a question of law in respect of which there may be a difference of opinion would be a
substantial question of law. In Karumalaya Valangupally Pandian v. Rev. Pignot, A I. R. (30)
1943 Mad. 67, the learned Judges were inclined to hold that a question as to the starting point
of limitation might be a substantial question of law on the facts; they nevertheless refused to
grant leave, because the decision of this Court was also based on another finding as to the
effect of the resumption by the Government of a service inam and on that question the
decisions were uniform. In Nallathambi Pillai v. Raghunath Bivi, 1948-1-M. L. J. 375, it was
held by Mockett and Kunhi Raman JJ. that as the only question of law raised in the appeal to
the Privy Council was virtually covered by a decision of the Judicial Committee and there
was no conflict of views in India on the question no substantial question of law could be said
to be involved. They adopted the view of Page C. J. expressed in M. C. Patail v. H. G. Ariff,
13 Rang 744, that unless it was fairly open to argument that the decision of the High Court
on a question of law could have been otherwise, there will be no substantial question of law.
In Chinnasami v. Nallappa Reddiar, 1947.2 M. L. J. 194, another Division Bench ruled that
where the principles of law on a point are well settled and the only question is the application
of those legal principles to a particular set of facts, it cannot be said that a substantial
question of law arises. The decision of the Allahabad High Court in Mathurakumari v. Jagdeo
Singh, 50 ALL 208 and that of the Lahore High Court in Mt. Umrao Bibi v. Ramkishen, 13
Lah. 251, were followed.

8. These decisions may be taken to represent the more or less uniform view taken by this
Court. Apparently it was contended before the referring Judges that Mahadeva Royal v.
Chikka Royal, 3942-1 M. L. J. 309, laid down a different test. In that case the only ground on
which leave was granted was that a question was raised as to the correctness of the decision
of this Court that certain material documents were inadmissible in evidence. Undoubtedly,
these documents were of great importance and if they had been held to be admissible, they
might have affected the result of the appeal. It was urged on behalf of the respondent that
there were no merits whatever in the contention in regard to their admiasibility and therefore
could not be a substantial question of law. The learned Judges then said :

"We were of opinion that there was no substance in the contention advanced by the learned
Advocate General; but if the words substantial questions' are to be understood in their being
of substance to the parties we must hold that the decision in regard to the non-admissibility of
the documents is a substantial question which would entitle the petitioner to have a
certificate."

I must confess that I find it difficult to exastly comprehend the significance of this

https://indiankanoon.org/doc/257092/?type=print Page 5 of 8
Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951 27/06/22, 18:12

conclusion. This Court might hold against a particular contentiom on behalf of a party; at the
same time it may be a fairly arguable one. It is not possible to say from what the learned
Judges actually said whether they thought that the contention as to admissibility was arguable
though they themselves found no merits in it. In Ramachandra Rao v. Narayanarao, 1948-2
M. L. J. 109, I had to deal with this decision sitting with Yahya Ali J. and I said :

"We are not aware exactly what sort of objection was raised as regards the admissibility of
documents in that case. But we do not understand that decision to lay down that whenever a
question as to the admissibility of any document is raised in an appeal and that question is
decided in one way, it follows ipso facto that there is a substantial question of law which
would justify the grant of a certificate under Section 110, Civil P. C."

In pursuance of the leave granted the appeal was eventually heard and disposed of by the
Privy Council in Mahadeva Royal v. Chiklca Royal, 1942-1 M. L. J. 309, but apparently no
objection was taken before the Privy Council that leave should not have been granted. In my
opinion the decision in Mahadtva Royal v. Chikka Royal, 1942-1 M. L. J. 309 should not be
taken as an authority for the position that any question of law, a decision on which may affect
materially the rights of the parties, is a substantial question of law within the meaning of
Section 110 of the Code.

9. It is neither possible nor useful to attempt to exactly define terms like "substantial" and
"just and equitable". Ultimately it resolves into itself into their meaning that the Court
considers to be substantial, reasonable or just and equitable. The use of the adjective
"substantial" makes it clear that any question of law as such would not justify the grant of a
certificate under Section 110. It must be a substantial question; that is to say, the question
must have some subatance, i. e , worth or merit. Bearing this in mind in consideration of the
authorities which I have cited leads to the following general principles. When a question of
law is fairly arguable, when there is room for difference of opinion on it, then such a question
would be a substantial question of law. If this Court thought it necessary to deal with a
question of law at some length, and discuss alternative views which can be taken on the
point, then, I think such a question would be a substantial question. When a point of law is
practically covered by a decision of the highest authority Court, say, like the Privy Council or
the Supreme Court, then it would not be a substantial question. If the general principles to be
applied in determining a question are well settled a mere application of such principles would
not involve a substantial question of law. I am inclined to hold that when a particular set of
facts can lead to alternative findings in law, then, a substantial question of law would be
involved. If the principle to be applied or the point of law arising in the case is not well
established, then certainly that would be a substantial question of law. With great respect to
the learned Judges who appear to hold to the contrary, I am of opinion that if there is conflict
of judicial opinion among the High Courts and there is no direct decision of the highest Court
on any question of law, then that would be a substantial question of law, though the decisions
of the particular High Courts of which leave is sought might have been uniform on the
question. That fact may be a very good ground for dismissing a second appeal if the lower

https://indiankanoon.org/doc/257092/?type=print Page 6 of 8
Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951 27/06/22, 18:12

Courts had followed the rulings of the High Court, but for an application for leave to appeal
to the Supreme Court, I think the very fact of divergence of opinion among the High Courts
is conclusive evidence of a the existence of a substantial question of law.
10. I find more or less a similar statement of the principles in the recent decision of the
Bombay High Court in Kaikhushroo Pirojsha v. C. P. Syndicate Ltd., A.I.R. (36) 1949 Bom.
134.
11. The only answer to the question that we can usefully give is that any question of law
affecting the rights of parties would not by itself be a substantial question of law. An
important or difficult question would of course be a substantial question; but even if a
question is not important or difficult, if there is room for reasonable doubt or difference of
opinion on the question, then it would be a substantial question of law within the meaning of
Article 133, Constitution of India.

Panchapagesa Sastry, J.
12. I agree.
Somasundaram, J.

13. I agree.
(After the finding of the Full Bench, the petition came on for hearing before Subba Rao and
Krishnaswami Nayudu JJ. on 6-4-51, and the Court made the following Order) :
Subba Rao J.

14. This application is posted before us after the Full Bench answered the question referred to
it. The Full Bench gave the following answer :
"The only answer to the question that we can usefully give is that any question of law
affecting the rights of parties would not by itself be a substantial question of law. An
important or difficult question would of course be a substantial question; but even if a
question is not important or difficult, if there is room for reasonable doubt or difference of
opinion on the question, then it would be a substantial question of law within the meaning of
Article 133, Constitution of India "
15. The main question we decided in the appeal was whether under the trust deed executed
by the mortgagors the suit properties had been transferred to the trustees. We accepted the
following principles as a guide in construing the trust deed :
"Though to create a valid trust there should be a transfer of interest by the author of the trust,
it is manifest that no particular form of words is necessary. What is essential is a conveyance
of interest and not the particular form of words in which the said transfer was couched."
This principle has been laid down by the Privy Council in Hanuman Persand Pandey v. Mt.
Babooee Munraj Kunwaree, 6 M. I. A. 393. After going through the entire document we held

https://indiankanoon.org/doc/257092/?type=print Page 7 of 8
Rimmalapudi Subba Rao vs Noony Veeraju And Ors. on 22 March, 1951 27/06/22, 18:12

that the words used therein were of sufficient amplitude to convey the properties to the
trustees. The circumstances mentioned by us in our judgment, according to us, clearly
indicated that there was a transfer. We did not feel any reasonable doubt on the question that
arose for consideration. The fact that we dealt with the question at some length does not
show that the question argued before us was either important or difficult, or was one in
regard to which we felt a reasonable doubt. Indeed, we dealt with the question at some length
in order to meet the arguments advanced before us.

16. It is then argued by Mr. Narasaraju that another substantial question of law arises in the
case, namely, whether the decree in O. S. No. 4 of 1940 on the file of the Sub-Court,
Rajahmendrawaram, would operate as res judicata. It is true that in formulating the points
argued before us, we stated that as one of the question that arose for consideration; but in the
course of the judgment we did not consider it, as presumably, it was not seriously pressed
before us. The facts which we stated before wo formulated the points also indicate that there
are absolutely no merits in that point either. In a suit for partition between the mortgagors the
plaintiff who was already on record as defendant 19 in his capacity as a lessee applied to be
made party as a mortgagee. The petition was dismissed by the Court, though with an
observation that he was already on record. But in the judgment it was expressly stated that
the validity of the assignment in favour of the plaintiff was left open. In the circumstances no
question of res judicata arises.

17. In the result the application is dismissed with costs.

https://indiankanoon.org/doc/257092/?type=print Page 8 of 8