(Kidambi) Tayamma and Others vs (Kidambi) Varadacharyulu and Others

Venkatasubba Rao, J.—In dealing with this matter, we labour under some disadvantage as neither of us was a member of the Bench that

disposed of the appeal.

The petitioners are defendants 27 to 29. The petition is for leave to appeal to His Majesty in Council. The suit was brought by a reversioner

questioning certain alienations made by the widow of the last male holder. The alienation in question is of the year 1875. The widow sold certain

lands to the father of defendant 27. The High Court agreeing with the Subordinate Judge held that no necessity for the alienation was proved and

on that ground the sale was set aside. The first question that arises is, is the judgment of the High Court an affirming judgment? The petitioners

contend that in regard to certain other alienations, the High Court took a different view from that taken by the trial Judge and it is therefore argued

that the decree of the High Court must be taken to have varied that of the lower Court, The fallacy of this argument consists in ignoring that, though

the decree of the first Court is a composite one, it comprises in fact as many decrees as there are alienees. The present petitioners are not

interested in the parts of the decree relating to the other alienees; nor have the latter any concern with that portion of the decree which affects the

petitioners. This view is in accordance with Vaithilinga Mudaliar v. Srirangathanni [1919] 42 Mad. 228.

As therefore in our opinion the judgment of the High Court affirms that of the lower Court, we have to decide: does the appeal involve some

substantial question of law? The petitioners complain that the learned Judges gave a finding against them in respect of the existence of necessity for

the alienation, without advertance to the rule regarding recitals in ancient documents, laid down by the Judicial Committee. Venkata Reddi v. Rani

Saheba of Wadhavan AIR 1920 P.C. 64, Bangachandra Dhur Biswas v. Jagat Kishore Acharyya AIR 1916 P.C. 110 : see also Somayya v.

Venkayya AIR 1925 Mad. 673, and Aukula Sanyasi v. Rarnachandra Rao AIR 1926 Mad. 692. The transaction the validity of which was in

question, happened 45 years before the date of the trial, and both the alienor and the alienee were dead when the suit was tried. What the learned

Judges would have decided had they borne in mind the principle referred to, we are not in a position to say; but, in our opinion, the point raised is

one of law. We are further satisfied that a substantial question of law is involved in the appeal.

The learned advocate for the petitioners says that ho confines his appeal to the validity of the sale and does not propose to reopen any other

question; such as that relating to the pedigree or the will.

It is not disputed that the subject matter is of the requisite value. We therefore certify that as regards the value and nature, the case fulfills the

requirements of Sections 110 and 109 (a) and (b), Civil P.C.