Order of the Court was pronounced by

Subba Rao, J.- This is an application for leave to appeal to the Supreme Court of India under Article 133(1) of the Constitution of India. The respondent instituted O.S. No. 43 of 1946 on the file of the Sub-Court, Eluru, for a declaration of his title to the plaint schedule properties. He claimed the properties under a Will, Ex. P-1 alleged to have been executed by one Sambamurthi. The first defendant set up another Will, Ex. D-7 alleged to have been executed by Sambamurthi in his favour. The trial Court held that Ex. P-1 was the last Will and Testament of Kalla Sambamurthi and that Ex. D-7 had not been proved to have been executed by Sambamurthi in a sound disposing state of mind. The High Court confirmed the findings of the Subordinate Judge, except in respect of a relief granted to the plaintiff for an account by the first defendant for certain amounts belonging to Sambamurthi. The High Court deleted that part of the decree. The result was that there was a modification in favour of the defendant.

The first defendant filed this application for leave to appeal against the decree of this Court. In the petition he seeks to question the findings of this Court affirming those of the Subordinate Court to the effect that Ex. P-1 was executed by Sambamurthi, and that Ex. D-7 was not executed by him The value of the subject-matter of the suit as well as that involved in the appeal is more than Rs. 20,000. On these facts, the question is whether the first defendant is entitled to prefer an appeal as of right, even without a substantial question of law being involved. Learned counsel for the respondent contends that the decree of the High Court did not affirm the decree of the Subordinate Court, as it modified the decree, whereas learned counsel for the petitioner argues that as the subject-matter of the appeal now relates only to that part of the judgment or decree which affirmed that of the Subordinate Court, it cannot be held that the decree of the High Court to that extent is not one of affirmance.

In Gangadara v. Subramania1a Full Bench of this Court consisting of Leach, C.J., Lakshmana Rao, J. and Rajamannar, J., held that in a case where the plaintiff claimed eleven items of property, and the first Court gave a decree in respect of some but the appellate Court dismissed the suit in regard to those items also, the decree of the appellate Court was a decree of variance even in regard to the findings affirmed by the appellate Court. After the Full Bench decision, Wardsworth and Yahya Ali, JJ., held in Lakshmanan Chettiar v. Thangam2that where there is a slight variation of the decree which is wholly in favour of the proposed appellant and about which, he has no grievance and in regard to other matters the appellate decree has affirmed the decree of the trial Court, the decree is in the main one of affirmance within the meaning of section no of the Civil Procedure Code. In Viraraghava Rao v. Narasimha Rao Zamindar Garu3the facts were: A suit for ejectment of the defendants from a picture house was decreed and a decree for damages was also passed in favour of the plaintiffs at the rate of Rs. 200 a day from a particular date to the date when defendants might hand over possession. The High Court agreed with the trial Court as regards ejectment, but as regards the quantum of damages the decree of the lower Court was modified in favour of the defendants in certain ways. Both the subject-matter of the suit and appeal exceeded Rs. 10,000. On those facts the learned Judges, relying upon the Full Bench decision and that of the Judicial Committee reported in Annapoorna Bai v. Ruprao4, held that an appeal

† 27th August, 1951, lay to the Judicial Committee - then Raghava Rao, J., in an elaborate judgment, considered the entire case-law on the subject and came to the conclusion, on a strict interpretation of the provisions of section 110, Civil Procedure Code, that an appeal would lie to the Privy Council, even

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