JUDGMENT

1. This is a petition for leave to appeal to His Majesty in Council by the appellant, whose appeal was dismissed by us on 28th January 1941, except for a slight modification in respect of the rate of pendente lite and future interest. The learned Government Advocate on behalf the appellant contends that his client is entitled to a certificate for leave to appeal, as a matter of right in the first instance on the ground that the amount or value of the subject-matter of the suit in the Court of first instance as well as the amount or value of the subject-matter in dispute on appeal to His Majesty in Council is admittedly over Rs. 10,000 and the decree of the lower Court has not been affirmed on appeal by this Court. In the second place, he contends that even if the decree of this Court is one of affirmance the appeal involves substantial questions of law.

2. The first question which arises for determination is whether the decree of this Court affirmed the decision of the lower Court or reversed or varied it. A reference to our judgment will show that the decision of the lower Court upon all the points raised by the applicant in the appeal before us was upheld. The only modification that this Court made was that, it altered the rate of pendente lite and future interest from 4J per cent, per annum awarded by the lower Court to 4&frac12 per cent, per annum. It appears that under the statutory provisions of Section 27, U.P. Encumbered Estates Act, (U.P. Act 23 of 1934) read with the rules framed by the Local Government, the learned Special Judge was not competent to award interest at a rate higher than 4 per cent, per annum. Earned Counsel for the respondent readily conceded that this was so and agreed to the modification. This Court, thereupon, altered the rate of pendente lite and future interest to 4J per cent, per annum. In all other respects the decree of the trial Court was affirmed and the appeal was dismissed with costs.

3. Reliance has been placed on behalf of the applicant on a decision of their Lordships of the Privy Council in Annapurnabai v. Ruprao , which was considered and followed in Bisheshwar Bakhsh Singh v. Biswanath Singh, A.I.R. 1935 Oudh 4892 and Jaggo Bai v. Harihar Prasad Singh , AIR1941All66 . In the case before the Privy Council the plaintiff claimed the property by virtue of being the adopted eon by the senior widow of the deceased owner of the property while he denied the adoption of defendant 2 by the junior widow, who was defendant 1 in the case. The junior widow had also put forward the defence that she was entitled to a maintenance allowance of Its. 3000 per annum. The Court of first instance upheld the plaintiff's claim but allowed a maintenance for the junior widow at the rate of Rs. 800 per annum. It negatived the plea of adoption of defendant 2 by the junior widow. In appeal to the Court of the Judicial Commissioner of the Central Provinces by the defendants the decree of the Court of first instance was affirmed except in respect of the amount of maintenance which was increased from Rs. 800 to Rs. 1200 per annum. The defendants thereupon sought leave to appeal to the Privy Council as a matter of right. This was refused on the ground that the decree of the appellate Court was a decree in affirmance of the decree of the trial Court. Their Lordships of the Judicial Committee allowed special leave to appeal and upheld the contention of counsel that the decree was not one of affirmance but one of variance. It may be noted that their Lordships ordered that the special leave to appeal should be limited to the question as to the maintenance allowance. In this connexion it may further be noted that the applicants counsel had intimated to their Lordships that his clients desired to appeal only with regard to the amount of maintenance. The judgment of their Lordships of the Privy Council is a short one, but it shows that the contention of counsel that the decree in that particular case was not a decr