1942 Present: Howard C.J. and Soertsz J.

SETHA v. MUTTUWA.

41- D. C. Kandy, 5,299.

Privy Council-Application for conditional leave-Value of subject-matter-Appreciation in value-Value of appellant's interest-Rule of succession in Kandyan Law-Matter of general or public importance-Privy Council (Appeals) Ordinance (Cap. 85), Rule 1 (a) and 1 (b).

Where, in an application for conditional leave to Appeal to the Privy Council, the property which is the subject-matter of the application has appreciated in value since the institution of proceedings the applicant should be allowed to prove its value at the time of appeal unless there is evidence of a fraudulent under-valuation.

De Alwis v. Appuhamy (30 N. L. R. 421) followed.

In determining the right of appeal the test that should be applied is, how does the judgment affect the interests of the party who is prejudiced by it and who seeks to relieve himself from it by appeal ?

A question of intestate succession arising in Kandyan law in circumstances that are more of uncommon than of common occurrence is not one of great general or public importance within the meaning of Rule (1) (b) of the Rules in the Schedule to the Privy Council (Appeals) Ordinance.

THIS was an application for conditional leave to appeal to the Privy Council.

H. V. Perera, K.C. (with him N. Nadarajah, K.C., and E. B. Wikremanayake), for the applicant.- This application is made under rule 1 (a) of the Schedule to the Privy Council (Appeals) Ordinance (Cap. 85) or. alternatively, under rule 1 (b) of the same Schedule.

Although the subject-matter of the action was valued in the District Court at less than Rs. 5,000 the value of it has now appreciated and, according to the affidavit and report of a recognized assessor, exceeds Rs. 10,000. What is material is the value of the subject-matter at the point of time when application is made for leave to appeal to the Privy Council. Vide de Alwis v. Appuhamy[(1929) 30 N. L. R. 421]

The question involved in the appeal is one which, " by reason of its great general or public importance or otherwise ", ought to be submitted to His Majesty in Council for decision under rule (1) (b). A rule of Kandyan Law which was regarded as finally settled in 1922 in the case of Seneviratne v. Halangoda,2[(1922) 24 N. L. R. 257.] has been disturbed by the decision of the Supreme Court in the present case. In Seneviratne v. Halangoda it was decided that where a Kandyan wife married in diga dies issueless, the husband does not inherit any portion of the wife's landed property acquired before marriage. The ruling in that case was accepted as final in the Report of the Kandyan Law Commission (1935) and has always been acted upon. Titles that are settled would become unsettled in consequence of the present decision.

N. K. Choksy (with him S. R. Wijayatilake) for the respondent. The value put upon the matter in dispute in the District Court is the determining factor and cannot be altered at this stage-Appuhamy v. Victor Corea1[ (1900) 1 Browne 165]. Further, in a testamentary action, the valuation given in the inventory decides the value of the action-Balahamy v. Dinohamy[ (1926) 27 N. L. R. 410 at 414].

Even if the total value of the estate is worth more than Rs. 5,000 the applicant's interest in it is only in respect of one-third and does not amount to Rs. 5,000. The test for determining value for the purpose of the present application is the extent to which the judgment of the Supreme Court affects the interest of the petitioner who is prejudiced by it-Allan v. Pratt[ (1888) 13 A. C. 780.]; Thevagnanasekeram v. Kuppammal et al.[(1934) 36 N. L. R. 404]; Ahamadu Lebbe et al. v. Abdul Coder et al.5[ (1931) 33 N. L. R. 337]; Sathasiva Kurukkal v. Subramaniam Kurukkal [ (1929) 31 N. L. R. 165.]; Pemaratna Thero v. Indasara Thero[ (1938) 13 C. L. w. 9.].

The question involved in this case is not one of great general or