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PETITIONER: R.   RAMACHANDRAN AYYAR

       Vs.

RESPONDENT: RAMALINGAM CHETTIAR

DATE OF JUDGMENT: 10/08/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS MUDHOLKAR, J.R.

CITATION:  1963 AIR  302            1963 SCR  (3) 604  CITATOR INFO :  R          1963 SC1633  (11)  RF         1974 SC1178  (8)  R          1976 SC2547  (25)  RF         1981 SC 707  (16)  RF         1981 SC1284  (36)  RF         1990 SC 723  (8)

ACT: Second  Appeal-Interference by High Court-Finding  of  fact- Substantial  error  or defect of procedure-What is  Code  of Civil Procedure, 1908 (Act V of 1908), s. 100.

HEADNOTE: There  was a partnership between the two appellants and  the father  of the respondents Nos.  1 and 2 who died  in  1936. In  1938 respondent No. 2 executed a release deed in  favour of  the the appellants whereunder the appellants  agreed  to pay  a sum of money to respondent Nos.  1 and 2 in  lieu  of the  share of their father.  Subsequently, respondent No.  1 filed  a  suit for setting aside the release  deed  and  for accounts.   The main questions that arose for decision  were whether   the.  release  deed  was  justified  by   adequate consideration,  whether  respondent No.  2  had  independent advice  at the time when he signed the deed and  whether  he acted  bonafide  or he was imposed upon.   The  trial  Court decreed  the  suit but on appeal the first  appellate  court dismissed  the suit.  In second appeal the High Court  upset the  findings of the first appellate court and restored  the decree  of the trial court.  The appellants  contended  that the  High Court had no jurisdiction to interfere  in  second appeal  as  the  question involved was  one  of  fact.   The respondents  contended that the High Court was competent  to interfere  as  there was a substantial defect  of  procedure committed  by the first appellate court in that it  did  not deal  with all the reasons given by the trial court  and  it did  not  come to close quarters with the  judgment  of  the trial court. Held,  that the High Court was not justified in  interfering with  the findings of fact recorded by the  first  appellate court in favour of the appellants.  There is no jurisdiction to  entertain a second appeal on the ground of an  erroneous

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finding of fact, however gross or inexcusable the error  may seem  to be. to enable the High Court to interfere under  s. 100(1)(c)  of  the Code of Civil Procedure there must  be  a substantial  error  or  defect in the  procedure  which  may possibly  have produced error or defect in decision  of  the case  upon  the merits; it is not enough that  there  is  an error or defect in the appreciation of evidence.  Even where the appreciation 605 or  evidence made by the first appellate court  is  patently erroneous and the finding of fact recorded in consequence is grossly  erroneous,  it  cannot  be  said  to  introduce   a substantial  error or defect in procedure.  In  the  present case,  the High Court was not entitled to  interfere  merely because  judgment  of the first appellate court was  not  as elaborate as that of the trial court or because some of  the reasons  given  by the trial court had  not  been  expressly reversed by the first appellate court.  The questions  which arose  for  decision were pure questions of fact  and  their decision depended upon the appreciation of the evidence  and circumstances of the case.  The findings on these  questions given by the first appellate court were binding on the  High Court.   The  broad features of the evidence  supported  the conclusions of the first appellate court and it could not be contended that its finding was perverse or was not supported by any evidence. Mst.   Durga Choudhrain v. Jawahir Singh Choudhri (1890)  L. R. 17 I. A. 122, relied on. Rani  Hemanta Kumari Debi v. Brojendra Kishore Rao  Chowdry, (1890)  L.R.  17  I.A.  65,  Shivabasava  Kom  Amingavda  v. Sangappa Bin Amingavda, ( 1904) L. R. 31 1. A. 154 and  Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Boy Bahadur, (1906) XVI M.L.J.R. 272, referred to.  Mangumma v. Paidayya. (1940) 53 L. W. 160, disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTIONS Civil Appeal No. 284/59. Appeal  by special leave from the judgment and decree  dated March 16, 1956, of the Madras High Court in S. A. No. 436 of 1953. A.   V.   Viswanatha  Sastri,  R.  Ganapathy  Iyer  and   G. Gopalakrishnan, for the appellants. N.   C.  Chatterjee, B. N.Kirpal, Bishambar Lal  and  Ganpat Rai, for the respondents. 1962.   August 10.  The Judgment of the court was  delivered by GAJENDRAGADKAR,J.-This  appeal by  special leave raises  the old familiar question about the 606 limits  of the High Court’s jurisdiction to interfere,  with findings of fact in a second appeal under s. 100 of the Code of Civil Procedure.  Defendants 1 & 2 who are the appellants before  us  contend  that the High Court  has  exceeded  its jurisdiction  in  interfering  with  the  findings  of  fact recorded  by  the lower appellate Court in their  favour  in dismissing the suit filed against them by respondent No.  1. Before dealing with this question, it is necessary to  refer to the material facts leading to the present dispute between the parties. It  appears that there was a partnership  between  appellant No.  1 Ramachandra Iyer, his father in-law V. V.  Kuppuswami Ayyar  who  was the father of appellant  No,  2  Vanchinatha Ayyar,   Rams   Ayyar  and   Lakshamanan   Chettier.    This

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partnership   worked   two  mills  in   Kasha   Chidambaram. Lakshmanan  Chattier is the father of respondent No. 1,  the plaintiff, and respondent No. 2, defendant No. 3. After  the death  of V. V. Kuppuswami Ayyar, the second appellant  took his  place in the partnership.  Rama Ayyar retired from  the partnership in September, 1936.  Lakshmanan Chettier died on June  10,1936, so that after the retirement of  Rama  Ayyar, the   partnership  continued  to  be  managed  by  the   two appellants  as partners.  On September 26,  1938,  defendant No.  3  executed  a  release  deed  in  favour  of  the  two appellants.  Under this document Rs. 9,165/- were agreed  to be  paid by the appellants in lieu of the amount due to  the share  of  Lakshmanan  Chettiar. out  of  this  amount,  Rs. 8,165/-  were paid to respondent No. 2 on the date when  the document  was  executed and Rs. 1,000/- were kept  with  the appellants  in order to be paid to respondent No. 1 ’Who  is the   present   plaintiff,  on   his   attaining   majority. Respondent  No. 2 had attained majority on August 12,  1938, whereas respondent No. 1 attained ’.majority on January  17, 1947.  It appears that on June 30, 1944, 607 the  balance  of  Rs.  1,000/-  which  was  kept  with   the appellants  to be paid to respondent No. 1 on his  attaining majority,  was  paid  by them to respondent  No.  2  on  his furnishing  security.   After  respondent  No.  1   attained majority, he gave notice to the appellants calling upon them to satisfy him about the correctness and bonafide  character of  the transaction of settlement reached between  them  and his  brother, respondent No. 2, and in that  connection,  be demanded  an  inspection of the relevant books  of  account. The appellants turned down his request for the inspection of the account books and so, on January 9, 1950, i. e.,  within three years after his attaining majority,. respondent No.  1 filed the present suit. In his suit, respondent No. 1 alleged that at the time  when his elder brother, respondent No.2, executed a release  deed in  favour of the appellants he (respondent No. 2) had  just attained  majority and at the time of the said  transaction, he  had  no independent advice and  was  "literally  imposed upon".   The  plaint further alleged that the  said  release deed  was  executed for a wholly  inadequate  consideration, without full knowledge by the second respondent of the  real facts   of   the  situation  and  only  as   a   provisional arrangement.  According to respondent No. 1, the arrangement was  no more than tentative and it was not  binding  against him.  It is mainly on these allegations that he alleged that the  release deed could not have "validly bartered away  his share in the profits due to his deceased father as a partner of  the  firm", and he claimed a declaration that  the  said release deed was not binding on him; that he was entitled to have an account rendered by the appellants in regard to  the profits  and assets of the partnership as on June 10,  1936, the  date  on  which his father died,  and  that  the  share allotted  to  his  father  should  be  ascertained  and  the appellants directed,to pay him of the same.                             608 In  the  plaint, respondent No. 1 also claimed that  he  was entitled to recover a share of the profits of the two  mills up to the date of the suit, proportions to the sum found due to him. The  material  allegations made by respondent No. 1  in  his plaint in regard to the settlement deed were disputed by the appellants by their Written statement.  They urged that  the said settlement had been arrived at between respondent No. 2 and   themselves  as  a  result  of  the   intervention   of

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respectable people, two of whom were closely related to  the family  of  respondents  1  &  2.  Their  uncle,   Santhonam Chettiar,  and Chekka Chettiar who is the son of the  sister of their father’s mother, took active part in the settlement of the dispute and these two gentlemen consulted Sama Ayyar, a respectable merchant of the place in whom all the  parties had full confidence, and it was virtually as a result of the advice  tended by Sama Ayyar that the terms of  the  release deed  were  settled.  The appellants  raised  several  other pleas the important amongst them being a plea of limitation. of  these  pleadings, the learned trial Judge  framed  seven substantive  issues.   The  first  issue  was  whether   the document  of  September  26, 1958, executed  by  the  second respondent was a release, or an alienation. or a  discharge? The  second issue was in regard to limitation and the  third issue was whether as an alienation, the said document  would bind respondent No. 1 ? By issue No. 6, the question  raised was  whether respondent No. 1 was entitled to  question  the release  deed?  All the issues thus framed answered  by  the trial  Judge in favour of respondent No. 1, and against  the appellants.  In the result, the suit filed by respondent No. 1 was decreed and a Commissioner was appointed to take accounts. 609 It    appears     that    the    learned        trial  Judge held       that  at  the  time when  the  release  deed  was executed  the appellants had suppressed material books  from respondent  No. 2 and his adviser, and the trial  Court  was indignant at the conduct of the appellants in not  producing the  said  books even at the trial.  It  then  proceeded  to examine  the evidence addduced before it by  the  respective parties  and  came to the conclusion that the  release  deed "was   brought   about   under   fraudulent   and   mistaken circumstances  without looking into a11  relevant;  accounts that  it was not effected for the benefit of the family  and hence,  it  was not binding on the plaintiff." It  would  be noticed  that the principal dispute between the  parties  at the  trial was whether the two mills which were operated  by the partnership formed part of the assets of the partnership itself,  or whether they belonged to the  appellants  alone. The trial Court has expressly stated that it did not propose to make any finding on that issue; but, curiously enough, it has  left the decision of that question to the  commissioner whom it appointed to take accounts. Against  this decree, the appellants preferred an appeal  in the  District  Court at South Arcot.   The  lower  appellate Court   examined  the  relevant  evidence  surrounding   the execution  of  the release deed and took  into  account  the admissions  made  by respondent No.2. It held that  all  the circumstances proved in the case show beyond doubt that  the settlements was not done in a hurry or haste and that  there was  no intention on the part of the appellants  to  defraud respondent  No. 2 and his brother.  The learned  Judge  also held,. in the alternative, that the suit filed by respondent No.  1 would be barred by limitation.  In his opinion, a.  7 of  the limitation Act was a bar to the  maintainability  of the suit.  We have already noticed 610 that the lower appellate court has made & definite,  finding that the discharge given by respondent No. 2 was binding  on respondent No. 1. The result of those findings was that  the decree  passed  by  the  trial  Court  was  set  aside   and respondent No. 1 suit was ordered to be dismissed It appears that  in the appellate Court, respondent No.1 field  certain cross-objections  and had also made an application  for  the

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amendment  of  the  plaint.  Both  these  applications  were dismissed. The dismissal of his suit took respondents No.1 to the  High Court  in second appeal and the High Court has  allowed  the appeal,  because it was disposed to accept the find’ of  the trial  Court that the impugned transaction was  not  binding against  respondent No.1. It appears that the learned  Judge who heared the second appeal was taken through the  evidence and though he has not recorded his findings on the  evidence as such, he has indicated his occurence with the conclusions of  the trial Court.  He referred to the dispute  about  the two  mills  and  to the fact that Sama Ayyar  bad  not  been examined.   He  thought the uncle of the respondents  was  a respectable  witness  and  that  there  was  no  reason   to disbelieve  his evidence and he held that accounts  had  not been examined at this time when the impugned settlement  was reached.  It is on these broad grounds that he  allowed  the appeal  and restored the decree passed by the  trial  Court. On  the question of limitation, the learned Judge held  that s.7 of the Limitation Act was not a bar the suit, because by his  present action respondent No-1 was not in terms  asking for accounts as such, but he was claiming a declaration that the document executed by respondent No-2 was not binding  on him.  It is this decree which is challenged before us by Mr. Viswanath Sastri on behalf of the appellants in the  present appeal.   611 Mr.  Sastri contends that the principal question  which  was agitated  before the High Court by respondent No’.  1 was  a question  of  fact  and it was not open to  the  High  Court exercising  its  jurisdiction  under s. 100  Code  of  Civil Procedure  to  interfere with the finding  recorded  by  the lower  appellate  Court on that question of  fact.   On  the other hand,, Mr. Chatterjee for respondent No. 1 has  argued that  the High Court was justified in interfering  with  the decree  passed  by the lower appellate  Court  because  that decree  disclosed  a  substantial error  or  defect  in  the procedure,  and so, the case falls under 9. 100 (1)  (e)  of the  Code, That its how the principal question  which  falls for our decision is whether the High Court was justified  in reversing  the  conclusion  of fact recorded  by  the  lower appellate Court in this case. The  question  about the limits of the jurisdiction  of  the High   Court  in  entertaining  second  appeals   has   been considered  by several High Courts in India as well  as  the Privy  Council  on numerous occasions, and  the  true  legal position in that behalf is not at all in doubt.  In  hearing a  second  appeal, if the High Court is satisfied  that  the decision  is contrary to law or some usage having the  force of  law, or that the decision has failed to  determine  some material  issue of law or usage having the force of law,  or if  there  is substantial error or defect in  the  procedure provided by the code, or by any other Law for the time being in  force  which may have produced error or  defect  in  the decision of the case upon the merits, it can interfere  with the  conclusions  of the lower appellate  Court.   That,  in plain  terms,  is what cls. (a), (b) and (c) of a.  100  (1) provide.  Mr. Chatterjee, however, relies; on cl. (c) of  a. 100  (1) and contends that the High Court found  that  there was a substantial error or defect in the procedure affecting the  decision  on the merits; and he seeks to  support  this contention 612 on the ground that all the reasons given by the trial  Court in support of its finding that respondent No.1 was not bound

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by the agreement, had not been duly considered by the  lower appellate Court, and that is a substantial error and  defect in the procedure.  He says that if the lower appellate Court wanted  to interfere with the trial Court’s  conclusions  of fact,  it  was necessary that all the reasons given  by  the trial  Court should have been examined and the whole of  the evidence  set out by the trial Court in its judgment  should have  been  taken into account.  Since the judgment  of  the lower  appellate  Court  is not elaborate and  some  of  the grounds set out in the trial Court’s judgment have not  been examined,  that  constitutes  an  error  or  defect  in  the procedure  and  so, the High Court was entitled  to  correct that  error  or  defect, because the said  error  or  defect affected  the  decision  of the merits  in  the  ease.   The judgment of the appeal Court, Mr. Chatterjee contends, "Must come  into  close quarters" with the judgment of  the  trial Court ’and meet the reasoning given there in, before it  can be  treated  as  conclusive  between  the  parties  for  the purposes of s. 100. It  is well-known that as early as 1890, the  Privy  Council had  occasion  to  consider this aspect  of  the  matter  in Mussummat Durge Choudhrain V. Jawahir Singh Choudhri.(1). In that  ease, it was urged before the Privy  Council,  relying upon the decision of the Calcutta and Allahabad High  Courts in Futtehma Begum v. Mohamed Ausur, (2) and Nivath Singh, v. Bhikki Singh (3) respectively, that the High Court would  be within  its  jurisdiction in holding that  where  the  lower appellate Court has clearly misapprehended what the evidence before it. was, and has been led to discard or not give (1) (1890) L.R. 17 I.A. 122.  (2) (1882) I.L.R. 9 Cal. 309, (9) (1895) I.L.R. 7 All. 649, 613 sufficient  weight  to  other evidence to which  it  is  not entitled,  the High Court can interfere under s. 100.   This contention  was  rejected by the Privy Council  and  it  was observed  that an erroneous .finding of fact is a  different thing  from an error or defect in procedure, and that  there is  no  jurisdiction  to entertain a second  appeal  on  the ground  of  an erroneous finding of fact, however  gross  or inexcusable  the  error may seem to,  be.   Their  Lordships added  that nothing can be clearer than the  declaration  in the  Code of Civil Procedure that no second appeal will  lie except on the grounds specified in s. 584 (corresponding  to s.  100  of the present Code), and they uttered  a  word  of warning that no Court in India or elsewere has power to  add to or enlarge those grounds.  Since 1890, this decision  has been treated as a leading decision on the question about the jurisdiction of the High Court in dealing with questions  of facts in second appeals. It is necessary to remember that a. 100 (1) (c) refers to  a substantial error or defect in the procedure.  The defect or error must be substantial that is one fact to remember;  and the  substantial  error  or defect should  be  such  as  may possibly  have produced error or defect in the  decision  of the case upon the merits-that is another fact to be borne in mind.   The  error or defect in the procedure to  which  the clause  refers is, as the clause- clearly and  unambiguously indicates,  an error or defect connected with,  or  relating to,  the  procedure;  it is not an error or  defect  in  the appreciation  of  evidence  adduce by  the  parties  on  the merits.   That is why, even if the appreciation of  evidence made by the lower appellate Court is patently erroneous  and the  finding  of  fact recorded in  consequence  is  grossly erroneous,  that cannot be said to introduce  a  substantial error or defect in the procedure.  On the other hand, if  in

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dealing with a question of fact, 614 the  lower  appellate Court had placed the onus on  a  wrong party and its finding of fact is the result,  substantially, of this wrong approach, that may be regarded as a defect  in procedure;  if in dealing with questions of fact, the  lower appellate  Court discards evidence on the ground that it  is inadmissible  and  the  High Court  is  satisfied  that  the evidence  was  admissible, that may introduce  an  error  or defect in procedure.  If the lower appellate Court fails  to consider an issue which had been tried and found upon by the trial  Court  and  proceeds to  reverse  the  trial  Court’s decision  without the consideration of such an  issue,  that may  be regarded as an error or defect in procedure; if  the lower  appellate  Court  allows a new point of  fact  to  be raised  for the first time before it, or permits a party  to adopt  a  new’ plea of fact, or makes out a new case  for  a party, that may, in some cases, be mid to amount to a defect or error in procedure.  But the High Court cannot  interfere with the conclusions of fact recorded by the lower appellate Court, however erroneous the said conclusions may appear  to be  to  the  High  Court,  because,  as  the  Privy  Council observed, however gross or inexcusable the error may seem to be  there  is no jurisdiction under section 100  to  correct that error. Mr.   Chatterjee,  however,  has  purported  to   base   his contentions on certain decisions to which it is necessary to refer.  In Rani Hemant Kumari Debi v. Brojendra Kishore  Roy Chowdry(1),  the  dispute  was  in  regard  to  the  binding character of the compromise between the parties.  The  trial Court had hold that the compromise was binding and dismissed the  suit.   The District Judge reversed the decree  on  the ground that the compromise was not binding.  The matter then went to the High Court in second appeal, and the High  Court held that the compromise was binding and restored the decree of the trial (1)  (1890) L.R. 17 I. A. 65. 615 Court’  When it was urged before the Privy Council that  the High Court had exceeded its jurisdiction in interfering with the  lower  appellate Court’s conclusion on  a  question  of fact,  the Privy Council affirmed the decision of  the  High Court on the ground that the finding of the lower  appellate Court  had been recorded without any evidence; and so.  this decision  merely  shows that if a finding of fact  has  been recorded by the first appellate Court without any  evidence, that  finding  can  be  successfully  challenged  in  second appeal, because a finding of fact which is not supported  by any  evidence  can be questioned under s. 100; and  in  that connection,  it  may be said that the decree  proceeding  on such  a finding discloses a substantial defect or  error  in procedure.   It is true that in dealing with this point  Sir Richard Couch has observed that "when the judgments come  to be looked at, it appears that he (the first appellate Court) has reversed the decree of the first Court in the absence of any  evidence certainly in the absence of any evidence  upon which  he might reasonably come to the conclusion  that  the deed  of compromise was not for the benefit of  the  adopted son."  With respect, we may point out that this  observation should not be literally construed to mean that wherever  the High  Court thinks that the evidence accepted.by  the  lower appellate Court could not have been reasonably accepted. the High  Court  would  be justified  in  interfering  with  the decision  of the lower appellate Court.  All that  the  said observation  means  is that it should be a  case  where  the

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evidence, which is accepted by-the lower appellate Court, no reasonable  person  could  have  accepted  and  that  really amounts  to saying that there is no evidence at all.  It  is in this sense that the said observation should be  construed and  then  it would be consistent with the  Privy  Council’s decision in the case of Mst.  Durga Chodhrain Therefore,  we are inclined to treat this decision (1)  (1890) LR.  I.A. 122. 616 supporting the proposition that the High Court can interfere with the conclusion of fact recorded by the lower  appellate Court  if  the  said  conclusion is  not  supported  by  any evidence. In Shivabasava Kom Amingavda v. Sangappa Bin Amingavda  (1), the Privy Council had occasion to consider the scope of  the expression "substantial defect or error of procedure"  under a. 100.  In that case , the validity of the decision of  the High  Court  in second appeal was challenged on  the  ground that the High Court had interfered with the finding of  fact recorded by the lower appellate Court.  This contention  was rejected by the Privy Council, because it took the view that the  lower appellate Court had disposed of the suit  upon  a case  not raised by the parties,. and to which the  evidence had  not been directed. and so, the course thus  adopted  by the lower appellate Court amounted to a substantial error or defect of procedure within the meaning of s. 584.  The Privy Council has also added that the High Court’s conclusion  was right  that  the  finding  of fact  recorded  by  the  lower appellate  Court  was not supported by any  evidence.   This decision  illustrates  what the  expression  as  substantial error or defect of procedure’ really means. Mr.  Chatterjee  has  then placed  strong  reliance  on  the decision  of the Madras High Court in Mangamma  v.  Paidayya (2).  In that case, Pandrang Row J. has held that where  the first  appellate Court fails in its judgment  reversing  the finding  of the trial Court to come into dose quarters  with the  evidence  in the case or to meet the reasoning  of  the trial  Court in support of its conclusions, the judgment  of the  appellate  Court must be deemed to be  vitiated  by  an error in procedure and so, can be interfered with in  second appeal.    These   observations,  so  doubt,   support   Mr. Chatterjee in (1)  (1904) L.R. 31 I.A. 154. (2) (1940) Ss L.W. 160.                             617 contending  that the High Court was justified  in  reversing the finding of fact recorded by the lower appellate Court in this case.  In ’our opinion, however, the broad observations made  in ’the judgment do not correctly represent  the  true legal  Position  about  the  limits  of  the  High   Court’s jurisdiction  in  dealing with second appeals  under  s.100. This decision shows that the learned Judge thought that  the lower  appellate  Court  was bound not  to  go  against  the opinion of the trial Judge who had an opportunity of  having the  witnesses before him, in deciding upon the  credibility of  the  oral evidence; and he has added  that  unless  good reasons  are given, any interference with The conclusion  of the trial Judge on matters of this kind must be deemed to be erroneous  in law.  It is plain that this statement  of  the law is inconsistent with the provisions of s. 100. In Rani Hemanta Kumari Debi v. Maharaja Janadindra Nath, Boy Bahadur  (1)., the Privy Council has no doubt observed  that it  is better that the appellate Court whenever it  reverses the  judgment of the lower Court, comes into close  quarters within  the,  judgment  of the lower  Court  and  meets  the reasoning  therein.   These observations,  however,  do  not

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assist  us in determining the scope of the provisions of  s. 100.   They  were, made in an appeal which went  before  the ’Privy  Council against the decision of the High Court  when the Appellate Bench was dealing with the first appeal  filed against  the  decision of the Judge of the  first  instance. The High Court had reversed the decision of the first Court; and in considering the proprierty of correctness of the said reversing  in judgment, the Privy Council observed that  the appellate  judgment  did not come into close  quarters  with the judgment which it reversed.  It would thus be seen  that what (1)  (1906) XVI M. L. J. R. 272. 618 the  Privy  Council  has said about the  requirements  of  a proper appellate judgment, cannot assist Mr.’ Chatterjee  in contending  that if a proper judgment is not written by  the lower appellate Court in dealing with questions of fact, its conclusions  of facts can be challenged under s. 100.   That question must be considered in the light of s. 1 00 alone. We must, therefore, hold that Mr. Chatterjee is not right in contending   that,.,because  the  judgment  of   the   lower appellate  Court was not as elaborate as that of  the  trial Judge,  or  because some of the reasons given by  the  trial Judge had not been expressly reversed by the lower appellate Court,  the  High Court was entitled to interfere  with  the conclusions  of  the lower appellate Court.   The  questions which  srose for the decision of the Courts of fact,  was  a simple  question  of fact-was the release deed  executed  by respondent  No. 2 in favour of the appellants  justified  by adequate  consideration ?  Had respondent  No.2  independent advice at the time when he signed the said document I Did he act  bona  fide,  or was he imposed upon ?  these  were  the points  that arose between the parties on  their  pleadings. It would be noticed that these points present pure  question of  fact and their decision depended in the present case  on appreciating  the oral evidenced adduced in support  of  the rival contentions, documents produced by the parties,  their conduct and surrounding circumstances.  In other words, what the  Courts of fact were called upon to consider and  decide were  questions  of  fact  in  the  light  of  all  relevent evidence.  That being so, we do not think the High Court-was justified  in interfering with the finding of fact  recorded by the lower appellate Court in favour of the appellants. On  this  view of the matter, it would not be  necessary  to consider the further question as to                             619 whether the suit filed by respondent No. 1 was within time. Mr.  Chatterjee  has, however, pressed us  to  consider  the material  facts, because he argued that the finding  of  the lower  appellate  Court was patently erroneous  and  can  be regarded even as perverse, for, according to him, it is  not supported by any evidence and is entirely inconsistent  with all  the  evidence  on record.  We  would,  therefore,  very briefly  indicate  our conclusion on this  point.   We  have already noticed that the deed of settlement was executed  by respondent  No. 2 with the advice of his uncle  and  another relative  and  Sama  Ayyar, a respectable  merchant  of  the locality,  played an important part in the proceedings  that led  to the execution of the document.  As was to be  expec- ted,  respondent  No.  2 who has signed  the  document,  has supported respondent No. 1t’s case and. so has the uncle  of the two respondents.  But the evidence given by them clearly proves  that  the conduct of the appellants was not  at  all unfair  or dishonest.  Sama Ayyar considered the matter  and advised the uncle of the respondents.  Respondent No. 2  was

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told to consult his mother who was looking after the  family affairs.  The mother was consulted and she agreed.  In fact, it appears that there were certain amounts credited with the firm  which  were ’Amanat’ and Sama Ayyar told  the  parties that  it  was  because the appellants were  fair  that  they disclosed these amounts and were prepared to pay them to the respondents, and after taking into account the said amounts, Rs.  9,165/- & odd were agreed to be paid, and in fact,  the whole of it has been paid. In  the document it is expressly stated that the  two  mills belonged to the appellants.  The recital is made in the very fore-front  of  the document and yet the document  has  been signed by respondent 620 No.  2  and  has  been attested by  his  uncle  and  another witness.   The trial Court has left this issue open and  had ordered  that  the’  Commissioner should  try  it.   On  the material  as  it  stands, there does not appear  to  be  any justification  for  the  argument that  the  mills  in  fact belonged  to the partnership, and it is  extremely  unlikely that  if  the mills had belonged to  the  partnership,  Sama Ayyar would not have known about it and accounts of  profits of  both  the  mills would not have been  taken  before  the release  deed was signed.  The trial Court was impressed  by the  fact that all the account-books were not  produced  for the inspection of respondent No, 2 or his uncle at the  time when  the release deed was executed, and it has  added  that the  books  were not produced even at the  trial.   Why  and under  what circumstances the appellants refused to  produce the  books at the trial, it is unnecessary to enquire ;  but the assumption that the appellants suppressed the books from respondent  No.  2  and  his  uncle  at  the  time  of   the negotiations in 1938 seems to us to be contrary to the clear admissions   made   by  the  uncle   of   the   respondents. Purushotham Chettiar, the uncle, is a man of substance.   He is worth about Rs. 3 lakhs.  He owns a number of houses  and lands.   He  was  a Municipal  Councillor  and  an  Honorary Magistrate.   He was naturally interested in his nephew  and so,  he  must have done all that was necessary  to  be  done before he asked respondent No. 2 to sign the released  deed. It is easy for him and respondent No. 2 to come forward  now and  make some vague allegations against the  appellants  in supporting the case set up by respondent No. 1. But even  he clearly admitted that appellant No. 1 showed him the  ledger in  which  the  amounts due to the deceased  father  of  the respondents were disclosed and said that the mills  belonged to  them  and  that he would give a letter  if  the  witness wanted to see the books of accounts. 621 It appears that the mills were worked at Chidambaram but the accounts  were  at  Nannilem, and  the  specific  and  clear admission made by Purushotham Chettiar is that appellant No. 1 was prepared to give a letter to enable the witness to see all  the accounts, and so, he has admitted that he  had.  no suspicions  against  appellant  No. 1  at  that  time..  He, however,  did not go to Nannilam or Kumbakonam to look  into the account books.  In other words, these admissions clearly show  that the appellants were prepared to allow  respondent No. 2 and his uncle to inspect all the books of account, but they  did not care to do so, and that is because Sama  Ayyar was  a trusted person and his decision was accepted  by  all the parties.  Therefore, the main reason on which the  trial Court based its conclusion and which presumably appeared  to the High Court to be sound is patently inconsistent with the admissions made by the uncle of respondents 1 & 2.

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There is another point to which the High Court has  referred and  which apparently weighed even with the trial Court  and that is that Sama Ayyar had not been examined.  We were told that  Sama Ayyar had been cited by respondent No. 1 and  was not  examined  by him.  But apart from this  aspect  of  the matter, if respondent No. 1 challenged the validity and  the binding character of the release deed executed by respondent No. 2, the onus was on him to prove his case and sustain the material allegations in support of it; and so, it inevitably follows  that  since  Sama  Ayyar  was  alive,  it  was  for respondent No. 1 to cite him.  That being no, the failure to examine  Sama Ayyar can be legitimately treated as a  ground against  respondent No.1 and cannot be treated as  a  ground against the appellants, and yet, that is precisely what  the High 622 Court appears to have done.  It would thus be clear that the important  question  of  fact on which the  parties  are  at issue,  was  decided  by  the  trial  Court  in  favour   of respondent No. 1 and by the lower appellate Court in  favour of the appellants.  As we have already indicated, the  broad features of the evidence support the conclusion of the lower appellate  Court  and  so,  Mr. Chatterjee  is  not  at  all justified  in  contending  that the  finding  of  the  lower appellate  Court  is  perverse or is not  supported  by  any evidence. In   the result, the appeal must be allowed, the decree passed by the High Court is set, aside and that of  the   appellate Court restored with costs throughout. Appeal allowed. 623