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Krisnabai Vs. Framroz Edulji Dinshaw - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 55 of 1931 and Suit No. 392 of 1931
Judge
Reported inAIR1932Bom543; (1932)34BOMLR834; 140Ind.Cas.254
AppellantKrisnabai
RespondentFramroz Edulji Dinshaw
Excerpt:
.....(act v of 1908), sections 109 and 110-appeal to privy council january 15. -final order- value of subject-matter of appeal.;the applicant, a hindu widow, obtained a decree under which she was entitled to occupy for her residence a portion of premises belonging to her deceased husband. the decree also provided that in case it became necessary for the executors of her husband to sell the premises, they were to pay rs. 400 per month to her in lieu of her right of residence. the executors having received a very advantageous offer for the sale of the premises, called upon the applicant; to vacate the premises and to accept rs. 400 a month, which she refused to do. the executors, thereupon, obtained an order from the appeal court directing her to vacate the premises. the applicant having..........each of the eases mentioned in clauses (a) and (b) of section 109, the amount or value of the subject-matter of the suit in the court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to his majesty in council must be the same sum or upwards,or the decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value.2. those words are not very easy to construe, and the decisions of this court upon them, which appear to me to be somewhat conflicting, do not render the question any easier. it is obvious that difficult questions may arise under the second paragraph of the section in dealing with questions of easement where the test of value may be.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application for a certificate for leave to appeal to the Privy Council and it raises a question not free from difficulty under Section 110 of the Civil Procedure Code. That section provides:-

In each of the eases mentioned in Clauses (a) and (b) of Section 109, the amount or value of the subject-matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council must be the same sum or upwards,

or the decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value.

2. Those words are not very easy to construe, and the decisions of this Court upon them, which appear to me to be somewhat conflicting, do not render the question any easier. It is obvious that difficult questions may arise under the second paragraph of the section in dealing with questions of easement where the test of value may be (a) the value of the easement as was held by this Court in Lallubhai Pragji v. Bhimbhai Dajibhai I.L.R. (1929) Bom. 552 : 31 Bom. L.R. 238 and by the value of easement is meant, I take it, the difference in value between either the dominant or servient tenement as the case may be with or subject to the easement and its value without the easement, or (6) the value of the dominant tenement, or (c) the value of the servient tenement. We are not concerned, however, in this case with a question of easements.

3. In this case the question arises in this way. The suit was commenced by the plaintiff, who was the widow of one Sin-ghanee, and she claimed maintenance and a right of residence from her late husband's estate. The Court decreed her maintenance and it also declared that she should be entitled to occupy certain premises in Narayan Dabholkar Road, and then it was provided by the order of the Court that in case it became necessary for the executors to sell the said premises, they were to pay further maintenance of Rs. 400 per month to the plaintiff in lieu of such residence. Subsequent to that order the executors received an offer for the sale of the premises which they con sidered very advantageous, and they, therefore, called upon the plaintiff to vacate the premises and accept Rs. 400 a month in lieu of her right of residence. The plaintiff refused to vacate and said that no necessity had arisen within the terms of the Court's order. The defendants, thereupon, gave the plaintiff a notice of motion asking that she might be ordered to vacate and deliver over to the defendants peaceful and quiet possession of the premises in Narayan Dabholkar Road in her occupation. On that motion Mr. Justice Kania held that the executors had not made out any necessity for sale. The executors appealed and the Court of Appeal held that a necessity for sale had arisen, and, therefore, made an order on the plaintiff to vacate the premises, and it is from that order that the plaintiff seeks leave to appeal to the Privy Council.

4. The question is, what is the subject-matter of the appeal for the purpose of value under Section 110 The claim on the notice of motion was that the present applicant should vacate these premises. It is not disputed that the whole of the premises in Narayan Dabholkar Road are worth Rs. 1,95,000, that being the price at which the executors are proposing to sell them, and it is also not disputed that the value of part of the premises which the widow was given for her maintenance also exceeds Rs. 10,000.

5. Mr. Coltman on behalf of the applicant says that this in substance is a suit for ejectment and that the subject-matter of the property is the portion of the premises which are in the applicant's occupation, and as they are worth more than Rs. 10,000 she is entitled to appeal to the Privy Council. The Advocate General on the other hand on behalf of the executors says that the subject-matter of the appeal is really only the difference between the premises in the occupation of the widow and Rs. 400 a month which she will get when she vacates these premises. As Mr. Coltman points out, if that really be the test it is difficult to see how in a specific performance action an appeal can ever be brought before the Privy Council. I take it that if a suit is brought for specific performance of a contract to sell or purchase property of the value of over Rs. 10,000, the subject-matter of the suit is property of the value of over Rs. 10000 notwithstanding the fact that the purchase money which the plaintiff is to get in return may be of the same value. It seems to me that the value of the subject-matter of this appeal is really the premises which the applicant is required to vacate. If that is so, then the case falls within the last words of the first paragraph of Section 110 since the amount or value of the subject-matter in dispute is Rs. 10,000 or upwards. I think probably the case also falls within the second paragraph of Section 110 since the order involves directly a claim or question respecting property of the value of over Rs. 10,000.

6. The Advocate General has also contended that the order of this Court from which it is sought to appeal is not a final order within Section 109. But, in my opinion, it is a final order within that section because it finally disposes of the applicant's right to occupy these premises.

7. That being so, I think, we have no option but to give leave to appeal to the Privy Council. Costs costs in the appeal.

Broomfield, J.

8. I agree.


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