For the purpose of determining the value of the subject-matter for appeal under Section 110 of the Code of Civil Procedure, the value is determined at the institution of the suit, and mesne profits cannot be added to this value.

Judgement

Appeal (No. 162 of 1927) by special leave from a decree of the High Court at Patna (December 8, 1925) reversing a decree of the Subordinate Judge of Shahabad.

A Hindu widow governed by the Mitakshara transferred certain immovable property, purporting to do so as heir of her husband, whom she alleged had separated from his joint family. The present suit was brought by the appellants! members of the joint family, who claimed that there had been no separation and that they were therefore entitled to the property by survivorship. They claimed possession and a

04 Law. Rep. 57 Ind. App. 279 ( 1929- 1930)

Mukhlal Singh V. Kishuni Singh 105

declaration of the invalidity of the transfer. They valued the property at Rs.6500. The questions arising were questions of fact—namely, whether there had been a separation, also whether two female defendants were daughters of the deceased.

The trial judge decreed the suit and the plaintiffs were put into possession. Subsequently they sued to recover from the defendants Rs.3890 as mesne profits; that suit was pending at the date of an appeal by the respondents to the High Court. The High Court allowed the appeal and dismissed the suit; the suit for mesne profits was thereupon dismissed also.

The High Court on March 23, 1926, dismissed an application by the plaintiffs for a certificate that the case was a fit one for appeal to the Privy Council. The learned judges held that the value of the property in suit being only Rs.6500 there was no right of appeal under s. 110 of the Code of Civil Procedure.

On December 2, 1926, the plaintiffs applied to the Judicial Committee for, and obtained, special leave to appeal. The ground of their application was that they had a right of appeal, as adding the mesne profits to the value of the property the value of the subject-matter exceeded Rs. 10,000.

1930. June 24. Wallach for the respondents. There was no right of appeal under the Code; the special leave should be rescinded and the appeal dismissed as incompetent. It was held by the Board in Gudivada Mangamma v. Maddi Mahalakshmamma (( 1930) L. R. 57 I. A. 56.) that the value of the subject-matter of the suit for the purposes of s. 110 of the Code means the value at the institution of the suit; consequently the mesne profits cannot be added to the value which was only Rs.6500. In Zahid Husain v. Mohammad Ismael (No. 2) (( 1930) L. R. 57 I. A. 186.), although special leave had been granted, the Board dismissed the appeal as incompetent upon its appearing at the hearing that there was no right of appeal under the Code and there had been no other ground for granting it. That course was taken also in Lord Strickland v. Grima . ([ 1930] A. C. 285.) The respondents, it is true, have not, as in Zahid Husains case (2), put forward the present contention in their case upon the appeal, but the appellants have been informed in writing that the contention would be raised at the hearing.

Dunne K.C. and Hyam for the appellants. The appellants have special leave to appeal by Order in Council. That leave should not be rescinded in the circumstances of this case, which differ materially from those in Zahid Husains case. (( 1930) L. R. 57 I. A. 186.) In that case the ground upon which leave was granted was that the title to other properties was indirectly involved. It was only after two days argument of the appeal that the facts were sufficiently elucidated to show that no other property was involved. Further, the respond ents were a very numerous body of small proprietors. In this case the facts relevant to the right of appeal were clear, and leave was granted with full knowledge of them. Lord Strickland v. Grima ([ 1930] A. C. 285.) also is distinguishable, as in that case there was no right of appeal to the Privy Council from the tribunal appealed from. (It was not pointed out that the petition for special leave in the present case being after January 1, 1926, notice of it was given to the respondents or their agents