KRISNABAI Vs. FRAMROZ EDULJI DINSHAW

JUDGEMENT

(1.) This is an application for a certificate for leave to appeal to the Privy Council and it raises a question not free from difficulty under Section 110 of the Civil Procedure Code. That section provides:- In each of the eases 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.

(2.) Those words are not very easy to construe, and the decisions of this Court upon them, which appear to me to be somewhat conflicting, do not render the question any easier. It is obvious that difficult questions may arise under the second paragraph of the section in dealing with questions of easement where the test of value may be (a) the value of the easement as was held by this Court in Lallubhai Pragji V/s. Bhimbhai Dajibhai, s.c. 31 Bom. L.R. 238, and by the value of easement is meant, I take it, the difference in value between either the dominant or servient tenement as the case may be with or subject to the easement and its value without the easement, or (6) the value of the dominant tenement, or (c) the value of the servient tenement. We are not concerned, however, in this case with a question of easements.

(3.) In this case the question arises in this way. The suit was commenced by the plaintiff, who was the widow of one Sin-ghanee, and she claimed maintenance and a right of residence from her late husband's estate. The Court decreed her maintenance and it also declared that she should be entitled to occupy certain premises in Narayan Dabholkar Road, and then it was provided by the order of the Court that in case it became necessary for the executors to sell the said premises, they were to pay further maintenance of Rs. 400 per month to the plaintiff in lieu of such residence. Subsequent to that order the executors received an offer for the sale of the premises which they con sidered very advantageous, and they, therefore, called upon the plaintiff to vacate the premises and accept Rs. 400 a month in lieu of her right of residence. The plaintiff refused to vacate and said that no necessity had arisen within the terms of the Court's order. The defendants, thereupon, gave the plaintiff a notice of motion asking that she might be ordered to vacate and deliver over to the defendants peaceful and quiet possession of the premises in Narayan Dabholkar Road in her occupation. On that motion Mr. Justice Kania held that the executors had not made out any necessity for sale. The executors appealed and the Court of Appeal held that a necessity for sale had arisen, and, therefore, made an order on the plaintiff to vacate the premises, and it is from that order that the plaintiff seeks leave to appeal to the Privy Council.