GOVIND DHONDO KULKARNI Vs. VISHNU KESHAV KULKARNI

JUDGEMENT

(1.) THIS is an application for leave to appeal to His Majesty in Council and the facts giving rise to the application are briefly these.

(2.) THE applicant claiming to be the adopted son of one Dhondo Govind Kulkarni filed a suit to recover by partition possession of his half share in the suit property. THE plaintiff's claim was opposed on several grounds. It was contended that the plaintiff was not adopted in fact, that the plaintiff's adoption was invalid and that in any case the suit property, with the exception of two houses and two lands, was not joint family property. THE plaintiff valued his claim in the Court of first instance at Rs. 12,012-8-0. THE trial Court held that the plaintiff had proved his adoption but his adoption was invalid. THE trial Court also held that the whole of the property in suit was joint family property. But since the plaintiff's adoption was invalid, the trial Court dismissed the plaintiff's suit. From that decision the plaintiff filed F. A. No.169 of 1941 in this Court and this Court set aside the decree of the Court below and declared that the plaintiff's adoption by defendant No.1 was proved and was valid. This Court further held that out of the immoveable properties described in the plaint, only the first house in paragraph 1, Clause A, and the two kulkarni watan lands R. S. Nos. 256/5 and 311/7 at Kudnur described in paragraph 1, Clause C, were joint family properties. THE result was that the plaintiff's claim was allowed with respect to some of the properties and that his claim in respect of the remaining properties was rejected. THE plaintiff how applies for leave to appeal to His Majesty in Council and the question is whether we should grant him the certificate he has applied for.

(3.) THE next question is whether it is necessary for the applicant to show that the appeal involves some substantial question of law. It is urged on behalf of the applicant that it is not necessary for him to show that the appeal involves a substantial question of law, because it is contended that the decree appealed from did not affirm the decision of the Court immediately below the Court passing such decree. THE expression "the decision" occurring in Section 110 means "the decree. " See Rajah Tasadduq Rasul Khan v. Manik Chand (1902) L. R. 30 I. A. 35, s. c. 5 Bom. L. R. 100. A simple case of affirmance would be where the decree appealed from confirms the decree of the Court immediately below the Court passing such decree. A case in the opposite sense would be where the decree appealed from reverses the decree of the Court immediately below the Court passing such decree; Another case may arise where the decree appealed from varies or modifies the decision of the Court immediately below the Court passing such decree, and the question is whether in such a case it is necessary for the applicant to show that the appeal involves some substantial question of law.