Judgement

Appeal (No. 28 of 1943) from a judgment and decree of the High Court in its appellate jurisdiction (March 17, 1939), affirming a judgment and decree of that court made in its original jurisdiction (January 25, 1939).

The following facts are taken from the judgment of the Judicial Committee. In the suit which gave rise to the present appeal the appellant, as assignee of the purchaser from a member of a joint family of a 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 that part of the suit resulted in a decree in the present appellants favour for a trifling sum, and the only question raised in regard to that part of the case related to a question of costs. The question remaining in controversy was whether the appellants claim was barred by the law of limitation. The value of the interest which the appellant claimed was well under Rs. 10,000, probably about Rs. 3,000. The total value of the joint family property exceeded Rs. 10,000. There was 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.

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, the appellate court dismissed the appeal as well on the question of the present appellants claim to partition, as also on the question of costs.

The appellant in due course applied to the appellate court for the usual certificate for leave to appeal to His Majesty in Council. The power of the appellate court to grant the necessary certificate turned on the true construction, in its application to the present case, of s. no of the Civil Procedure Code which is as follows —" no. In each of the cases " 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, and where the decree or final order appealed 14 from affirms the decision of the court immediately below the " court passing such decree or final order, the appeal must " involve some substantial question of law."

The appellate court took the view that there was no question in this case of such a character as to make it a fit case for the grant of a certificate under s. 109 (c), and dismissed the applica tion on the ground that, the share of the appellant in the property of which she sought partition being less in value than Rs. 10,000, the subject-matter of the appeal was below the minimum value required by s. no.

The present appellant thereupon petitioned His Majesty in Council for special leave to appeal, and leave was so granted, but on 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. On 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.

1944. Jan. 31, Rewcastle K.C. and Khambatta for the respondents. It was said on the hearing of the petition for special leave to appeal, that this case must be regarded as one involving more than Rs. 10,000 because, although the amount involved in the appeal is only about Rs. 3,000, the matter in issue is a share of a joint Hindu family property, and that for the purpo