(KIDAMBI) TAYAMMA Vs. (KIDAMBI) VARADACHARYULU

JUDGEMENT

(1.) In dealing with this matter, we labour under some disadvantage as neither of us was a member of the Bench that disposed of the appeal.

(2.) The petitioners are defendants 27 to 29. The petition is for leave to appeal to His Majesty in Council. The suit was brought by a reversioner questioning certain alienations made by the widow of the last male holder. The alienation in question is of the year 1875. The widow sold certain lands to the father of defendant 27. The High Court agreeing with the Subordinate Judge held that no necessity for the alienation was proved and on that ground the sale was set aside. The first question that arises is, is the judgment of the High Court an affirming judgment? The petitioners contend that in regard to certain other alienations, the High Court took a different view from that taken by the trial Judge and it is therefore argued that the decree of the High Court must be taken to have varied that of the lower Court, The fallacy of this argument consists in ignoring that, though the decree of the first Court is a composite one, it comprises in fact as many decrees as there are alienees. The present petitioners are not interested in the parts of the decree relating to the other alienees; nor have the latter any concern with that portion of the decree which affects the petitioners. This view is in accordance with Vaithilinga Mudaliar V/s. Srirangathanni [1919] 42 Mad. 228.

(3.) As therefore in our opinion the judgment of the High Court affirms that of the lower Court, we have to decide: does the appeal involve some substantial question of law? The petitioners complain that the learned Judges gave a finding against them in respect of the existence of necessity for the alienation, without advertance to the rule regarding recitals in ancient documents, laid down by the Judicial Committee. Venkata Reddi V/s. Rani Saheba of Wadhavan A.I.R. 1920 P.C. 64, Bangachandra Dhur Biswas V/s. Jagat Kishore Acharyya A.I.R. 1916 P.C. 110 : see also Somayya V/s. Venkayya A.I.R. 1925 Mad. 673, and Aukula Sanyasi v. Rarnachandra Rao A.I.R. 1926 Mad. 692. The transaction the validity of which was in question, happened 45 years before the date of the trial, and both the alienor and the alienee were dead when the suit was tried. What the learned Judges would have decided had they borne in mind the principle referred to, we are not in a position to say; but, in our opinion, the point raised is one of law. We are further satisfied that a substantial question of law is involved in the appeal.