GANGADARA AYYAR Vs. SUBRAMANIA SASTRIGAL

JUDGEMENT

(1.) The petitioners seek a certificate permitting an appeal to His Majesty in Council. They were the second, third and fourth defendants in the suit. The plaintiff (the first respondent) sued for a declaration that the eleven items of property described in the schedules annexed to his plaint belonged to the the estate of one Sundaram Ayyar, who died on the 14th September, 1937 and that a deed of settlement executed by Sundaram Ayyar's mother on the 3 November, 1938 in respect of these properties was void. The plaintiff was the reversioner to the estate and he claimed to be entitled to all the properties. The trial Court gave him a declaration in respect of six of the eleven items of property but dismissed the rest of the claim. The petitioners appealed to this Court on the ground that the trial Court had erred in giving the plaintiff a declaration in respect of the six items. The plaintiff filed a memorandum of cross objections in which he said that the Subordinate Judge should have declared him to be entitled to four of the remaining five items. The appeal was dismissed, but the memorandum of cross objections was allowed. The petitioners wish to appeal to the Privy Council in respect of all the ten properties awarded to the plaintiff. In the trial Court the total value of the eleven properties in suit was stated to be Rs. Rs. 31,304. The value of the six properties in respect of which the Subordinate Judge gave the plaintiff a decree was Rs. 21,214. The value of the four properties referred to in the memorandum of cross objections was Rs. 9,190.

(2.) The application is opposed by the plaintiff. He says that as there were concurrent findings so far as six of the properties are concerned, the petitioners can only appeal with regard to the four items awarded to the plaintiff by this Court on appeal and that they in themselves do not fulfil the requirements of the Civil P. C. with regard to value. The petitioners say that the value of the four items is immaterial, because the subject matter of the proposed appeal will be the ten items of property in respect of which the plaintiff has succeeded and their value is and has been at all material times far in excess of Rs. 10,000. The application has been placed before a Full Bench because there is a conflict of authority in this Court on the question whether there is a right of appeal in circumstances such as we have here.

(3.) Appeals to the Privy Council are governed by the provisions of Secs.109 and no of the Civil P. C.. Where the case fulfils the requirements of the Code with regard to value, a party has a right of appeal if the decree of the appellate Court varies the decree of the trial Court. Where the appellate Court affirms the decision of the Court below, an appeal lies only when it involves some substantial question of law. In this case it is admitted that there is no substantial question of law. Undoubtedly the decree of this Court varied the decree of the trial Court in an important respect, because it gave four more items of property to the plaintiff.