The decision of the case by the District Munsif was not on a preliminary point. An appeal lies only against an order passed under Rule 23, Order 41. The error committed by the lower Court is one which clearly falls within Clause (c), Section 115.

Madhavan Nair, J.

1. This appeal is preferred by the defendant against the order of the District Judge of Kurnool remanding O.S. No. 486 of 1924 to the District Munsif for disposal on the merits. The respondents, viz., the plaintiffs have taken the preliminary objection that under Order 43, Rule 1 Clause (u) read with Order 41, Rule 23, no appeal lies against the order of the District Judge on the ground that the case was disposed of by the District Munsif on the merits and not on a "preliminary point." The plaintiffs suit was for the recovery of the amount of a policy in the Oriental Life Assurance Company, Bombay, held by the deceased husband of the defendant, who was their brother. They alleged that their brother was educated up to the Intermediate class at the family expense and that his earnings as a teacher Which he was able to make result of this education and which he had invested in the Life Assurance Company became property that was partible against the members of this family. The defendant contended amongst other things that assuming that her husband was educated at the expense of the family he was given only "a general education," by the family and consequently his earnings became his self-acquisition and should not be regarded as partible. On these contentions the District Munsif framed issues:

1. Whether the defendants husband was not educated at the family expense?

2. Is the plaintiff entitled to the declaration sought for?

3. What relief?

2. On the first issue, as no evidence was adduced by either side at the trial, he found that the defendants husband was educated at the family expense.

3. As regards the second issue he pointed out that the parties went to trial on the footing that

the defendants husband was given a general education at the expense of the joint fumily

and he also remarked in the course of the judgment that

in this case there is no question of specialised education

and that

it is admitted by both sides that the defendants husband was given a general education at the family expense.

4. On these admissions he decided having regard to the wellknown decisions of the Privy Council, that since the education given to the defendants husband was not a specialised education which involved a detriment to the family estate, his earnings became his self-acquisitions and were not partible and so dismissed the plaintiffs suit.

5. On appeal, the learned District Judge thought that the District Munsif did not approach the question from a proper standpoint. He therefore framed the following questions for the Munsifs consideration.

1. Whether the defendants husbands family was in such affluent position as would require it to give him education up to the Intermediate standard without expecting a return from it?

2. Whether the education of the defendants husband up to the Intermediate standard caused a detriment to the family estate regard being had to its financial state?

3. Whether the defendants husband acquired the money contributed to the Life Assurance Company by his personal qualities as the District Munsif states and not owing to the education imparted to him at the expense of the family.

6. The learned Judge then pointed out that the District Munsif did not call for evidence to arrive at an answer to the said questions but merely assumed that education imparted to the defendants husband was of such a kind as would not render the wealth acquired by it partible. He therefore remanded the suit for fresh disposal. (See para. 3 of the appellate Judgment).

7. From what we have stated above, it is clear that the decision of the case by the District Munsif was not on a preliminary point as explained by the decisions of this Court in the Full Bench judgment. In Rama Nair v. Krishna Nambudripad A.I.R. 1922 Mad. 505 the learned Chief Justice pointed out that a preliminary point under Order 41, Rule 23, is any point, the decision of which avoids the necessity for the full hearing of the suit, and he gave various instances of th