Sukkira Goundan and Others vs Palani Goundan

Alfred Henry Lionel Leach, C.J.—This is an application for a certificate for leave to appeal to His Majesty in Council. The suit out of which

this petition arises was filed by the respondent in the Court of the Subordinate Judge of Dindigul for the partition of the estate of a joint family of

which he claimed to be a member. He valued the estate as a whole at Rs. 25,987 and his own share at Rs. 8,662-5-4. The petitioners who were

defendants denied that the respondent was a coparcener, and their defence prevailed in the trial Court. On appeal to this Court, however, it was

held that the respondent was a coparcener and was entitled to have delivered to him property of the value of Rs. 5,162-5-4. The petitioners

challenge the correctness of this Court''s judgment and wish to appeal to the Privy Council. The only question which falls for decision is whether

the case falls within the second clause of Section 110 of the Code of Civil Procedure. The section reads as follows:

In each of the cases mentioned in Clauses (a) and (b) of Section 109, the amount or value of the subject-matter of the suit in the Court of first

instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council

must be the same sum or upwards, or the decree or final order must involve, directly or indirectly, some claim or question to or respecting property

of like amount or value.

and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final

order, the appeal must involve some substantial question of law.

The learned advocate for the petitioners rightly concedes that the subject-matter of this suit does not amount to Rs. 10,000 the subject-matter

being merely the share of the respondent in the estate. Therefore the case does not fall within the first clause. But he says that the decision of this

Court on appeal does involve some question respecting property worth more than Rs. 10,000 and therefore the case comes within the second

clause. The value of the estate, taken as a whole is far more than Rs. 10,000, and the contention is that as the decree has directed a partition of this

estate it affects property of the required value.

The learned advocate relies on the judgment of the Calcutta High Court in Lala Bhugwat Sahay v. Rai Pashupati Nath Bose 10 C.W.N. 564

and the judgment of the Allahabad High Court in Muhammad Asghar v. Abida Begam I.L.R.(1932) 54 All. 858. Lala Bhugwat Sahay v. Rai

Pashupati Nath Bose 10 C.W.N. 564 was also a suit for the partition of a joint family estate, and Maclean, C.J., and Mookherjee, J., held that it

was the whole estate which had to be looked at and not merely a particular share which one of the parties might claim. This construction was

accepted by the Allahabad High Court in Muhammad Asghar v. Abida Begam I.L.R.(1932) 54 All. 859. The Bombay High Court has, however,

interpreted the second clause of Section 110 differently and this Court has agreed with it. The opinion of the Bombay High Court is expressed in

the case of De Silva v. De Silva (1904) 6 Bom. L.R. 403 which was decided by Jenkins, C.J. and Russell, J. It was there held that, where the

relief is at less than Rs. 10,000 the value of the matter in dispute in appeal is not of the prescribed value. In such circumstances the decree itself

does not involve any claim or question to or respecting property of the prescribed value and consequently the case does not fulfil the requirements

of the section. The learned Chief Justice pointed out that, if the Court were to give effect to the contention that regard must be had only to the value

of the whole estate, it would follow that, if the sole subject-matter in dispute, were an easement of trifling value, but affecting property worth Rs.

10,000 or more, a right to appeal to the Privy Council would exist, which would be giving to the words of the section a meaning which was not

justified. This decision was followed by the Bombay High Court in Manilal v. Banubai (1920) 23 Bom. L.R. 374 and in Nariman Rustomji v.

Hasham Ismayal I.L.R.(1924) 49 Bom. 149. It has been suggested in the course of the argument that the Bombay High Court gave expression to

a contrary opinion in Appaya v. Lakhamgowda (1922) 25 Bom. L.R. 77 but we do not regard the judgment there as repudiating the decision in

De Silva v. De Silva (1904) 6 Bom. L.R. 403 which was again followed in Nariman Rustomji v. Hasham Ismayal I.L.R.(1924) 49 Bom. 149.

This Court considered the question in Appala Raja and Others Vs. Rangappa Naicker and Others, , which was an application for leave to

appeal to His Majesty in Council heard by Sadasiva Aiyar and Spencer, JJ. Sadasiva Aiyar, J., expressed the opinion that in order to satisfy the

conditions of Section 110 the suit must involve rights and claims to property which rights and claims are worth Rs. 10,000 or upwards, and he

quoted with approval the decision in De Silva v. De Silva (1904) 6 Bom. L.R. 403. Spencer, J., delivered a judgment to the same effect. This

decision is binding on us and disposes of the application. I may add that De Silva v. De Silva (1904) 6 Bom. L.R. 403 was also followed by the

Patna High Court in Gosain Bhaunath Gir v. Bihari Lal (1919) 4 Pat. L.J. 415. That was a case where a puisne mortgagee whose interest in the

property which was worth only Rs. 4,000 was applying for leave to appeal to the Privy Council from an order refusing to set aside the sale of the

property ordered in a mortgage suit, the property being valued at over Rs. 10,000.

The application for leave to appeal will be dismissed with costs.