Judgement

Petition for special leave to appeal from a decree of the High Court at Madras (November 1, 1928), reversing a decree of a Subordinate Judge.

The petitioner was plaintiff in a suit against the respondent, his sister, for a declaration of his title to, and for possession of, property which had belonged to their deceased mother. The property included certain promissory notes payable by persons not parties to the suit. For purposes of Court fees the suit was valued at Rs.7200.

The Subordinate Judge decreed the suit, but upon appeal to the High Court it was dismissed.

An application by the petitioner to the High Court for a certificate enabling an appeal to the Privy Council was dismissed on the ground that the value of the subject-matter of the suit in the Court of first instance was not Rs. 10,000 or upwards so as to satisfy the requirements of s. 110 of the Code of Civil Procedure applicable to the case. For the purposes of their decision the learned judges accepted

Law. Rep. 57 Ind. App. 56 ( 1929- 1930) Gudivada Mangamma V. Maddi Mahalakshmamma

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the petitioners contention of fact that if interest upon the promissory notes to the date of the decree of the Subordinate Judge were included the value exceeded Rs. 10,000.

Sect. 110 of the Code is set out in the judgment of the Judicial Committee.

Under the established practice of the Board the petitioner, without appealing from the refusal of the certificate, was entitled to contend upon a petition for special leave to appeal that he had an appeal by right under the provisions of the Code.

1929. Nov. 15. Narasimham for the petitioner. The value of the subject-matter of a suit for the purposes of s. 110 of the Code is what would accrue to the plaintiff if he obtains a decree. That in the present case would include interest upon the promissory notes. The judgment of the Board in Moti Chand v. Ganga Pershad Singh (( 1901) L. R. 29 I. A. 40.) did not reject the view that the value at the date of the decree was the test. It is well established that the valuation for Court fees is not conclusive for the present purpose.

W. Wallach for the respondent. For the purposes of s. 110 the value of the subject-matter of a suit is the value at the date of the plaint Subramanya Ayar v. Sellammal.(( 1915) I. L. R. 39 M. 843.) Although other High Courts have held otherwise, it is submitted that the view of the Madras High Court is correct. That case dealt with mesne profits and the same principle applies here. Moti Chands case (1) does not affect the present question. But in any case the petitioner has not shown that the value was Rs. 10,000 even at the date of the decree. The value of the promissory notes to the holder is purely problematic. The petitioner by his plaint claimed only possession.

Narasimham in reply. Subramanya Ayar v. Sellammal (( 1915) I. L. R. 39 M. 843.) is distinguishable, as in that case mesne profits were not recoverable from the defendant but from others.

Dec. 3. The judgment of their Lordships was delivered by

VISCOUNT DUNEDIN. The case turned upon whether the widow, whose heir the respondent is, took an absolute interest in certain properties of the husband or only a life estate. If the latter, the respondent had no right. The Subordinate Judge held that the widow had only a life estate. The High Court reversed. The losing parties then applied for leave to appeal to the King in Council, which was refused upon the ground that the amount or value of the subject-matter of the suit was less than Rs. 10,000.

The appellant now asks for special leave to appeal on the ground that the decision of the High Court was wrong in the respect that the amount or value of the subject-matter of the suit was more than Rs. 10,000. The point arises in this way. Part of the property in question consisted of promissory notes. The promissory notes in the plaint were described as of their face value, and, so valued together with the other subjects in dispute, the amount of Rs. 10,000 can