The main legal point established in the judgment is the interpretation of the term 'judgment' in the context of the Letters Patent and its applicability to the order in question. The court emphasized the meaning of 'final order' and 'judgment' as per judicial interpretations and highlighted the discretionary nature of granting permission to appeal to the Privy Council.

Sen, J—This is an application by Rao Bahadur Kunwarlalsingh for leave to appeal to His Majesty in Council against the order dated the 10th November 1944 passed by the Divisional Bench in Letters Patent Appeal no. 13 of 1944, reported in Kunwarlalsingh v. Shrimati Umadevi, 1945 ILR(Nag) 286.

2. In order to decide whether the leave should be granted it is necessary to set out briefly a few relevant facts.

3. One Tilaksingh filed a suit for partition of a large estate in the Bhandara district in 1933 against his two brothers Rao Bahadur Kunwarlalsingh, the applicant, and Diwakar Rao. The defence in that suit was that the estate was impartible and descended to the eldest brother Kunwarlalsingh and in the alternative, that Tilaksingh was not entitled to claim a partition as he had agreed to accept 17 villages as maintenance under a family arrangement which was binding on him. The defence did not succeed and a preliminary decree for partition was passed in 1939 in favour of Tilaksingh. The defendants filed First Appeal no. 71 of 1939 in this Court, and subsequently Diwakar Rao who was a co-appellant was transposed as a respondent. During the pendency of the appeal Tilaksingh died on the 28th October 1941. His widow Umadevi and son Kunwar Rana Pratapsingh filed an application for being brought on the record as the legal representatives of the deceased in his place. This application was opposed by Rao Bahadur Kunwarlalsingh on the ground that Umadevi was not a legally married wife of Tilaksingh and Kunwar Rana Pratapsingh was not a legitimate son. Niyogi J. by the order dated the 26th October 1943 determined that Umadevi and Kunwar Rana Pratapsingh were the legal representatives of Tilaksingh, the deceased, and brought them on record in his place as respondents. Against this order Letters Patent Appeal no. 13 of 1944 was filed. The Divisional Bench by the order dated the 10th November 1944 held that the order of Niyogi J. was not a ''judgment'' within clause 10 of the Letters Patent of our Court and that no Letters Patent appeal under that clause lay against the order.

4. The application for leave has been made under sections 109 (c) and 110 of the Civil Procedure Code, 1908, and clauses 29 and 30 of the Letters Patent of our Court. Section 110 of the Code has obviously no application as it does not confer any right of appeal but merely lays down further conditions as regards the value of the subject-matter of the suit in the Court of first instance and the value of the subject-matter in dispute on appeal to the Privy Council and the nature of the decree or the final order in the case of appeals mentioned in clauses (a) and (b) of section 109. The application for leave has not been made either under clause (a) or clause (b) of section 109, and section 110 has thus no application.

5. Clause 29 of the Letters Patent confers a right of appeal to the Privy Council from any final judgment, decree or order of this Court. The expression ''final order'' also occurs in section 109 (a) and (b) of the Civil Procedure Code and has been interpreted judicially. The expression used in the Letters Patent must also be interpreted in the same sense.

6. In Ramchand Manjimal v. Goverdhandas Vishandas Ratanchand,1920 47 ILR(Cal) 918 their Lordships of the Judicial Committee stated:

An order is final if it finally disposes of the rights of the parties. The orders now under appeal do not finally dispose of those rights, but leave them to be determined by the Courts in the ordinary way.

7. In Abdul Rahman v. D.K. Cassim & Sons,1932 11 ILR(Rang) 58 their Lordships of the Judicial Committee after referring to the above case observed the finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under section 109 (a) of the Code.

And later, the effect of the order was not to dispose finally of the rights of the parties. It no do