BAI SHEVANTIBAI Vs. JANARDHAN RAGHUNATH WARICK

JUDGEMENT

(1.) IN the suit which gives rise to the present appeal the appellant, as assignee of the purchaser from a member of a joint family of one-sixth share in the joint family property, sued for partition of the family property and to have her one-sixth share allotted to her. She also sought, as assignee of a mortgage on another sixth share, to have her mortgage enforced ; but this part of the suit resulted in a decree in the present appellant's favour for a trifling sum and the only question raised in regard to this part of the case relates to a question of costs. The question remaining in controversy is whether the appellant's claim is barred by the law of limitation. The value of the interest which the appellant claims is well under Rs. 10,000 probably about Rs. 3,000. The total value of the joint family property exceeds Rs. 10,000. There is no controversy as to the identity or extent of the family property, or as to the right of partition to which the appellant would be entitled if the law of limitation were not a bar to her claim.

(2.) IN the Court of first instance the claim was held to be barred by the law of limitation and the suit, so far as it related to the claim for partition, was dismissed. On appeal to the appellate Court, that Court dismissed the appeal as well on the question of the present appellant's claim to partition, as also on the question of costs.

(3.) THE present appellant thereupon petitioned His Majesty in Council for special leave to appeal, and leave was so granted, but upon the terms that liberty should be reserved to the respondents to contend that such leave to appeal ought not in the circumstances of the case to have been granted. Upon the appeal coming before their Lordships, the respondents, in exercise of the liberty so reserved, contended, by way of preliminary point, that leave to appeal ought not in the circumstances of the case to have been granted. THEy contended that the High Court had correctly taken as the "value of the subject-matter in dispute on appeal" the value of the interest claimed by appellant. THEy pointed out that this view of the matter accorded with that taken by the Bombay High Court in De Silva v. De Silva (1904) 6 Bom. L. R. 403 followed by the same High Court Raoji Bhikaji v. Laxmibai (1919) I. L. R. 44 Bom. 104 : s. c. 22 Bom. L. R. 243 and in Nariman Rustomji v. Hasham Ismayal (1924) I. L. R. 49 Bom. 149 : s. c. 26 Bom. L. R. 1261