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Appa Trimbak Deshpande Vs. Vaman Govind Deshpande - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 88 of 1936
Judge
Reported inAIR1937Bom181; (1937)39BOMLR156
AppellantAppa Trimbak Deshpande
RespondentVaman Govind Deshpande
Excerpt:
.....procedure code (act v of 1908), section 110-leave to appeal to his majesty in council-value of subject-matter less than rs. 10,000-suit for partition-a decree of trial court in favour of applicant and his brother-decree reversed by high court-decree of high court affecting interests of applicant and his brother-total value of subject-matter above rs. 10,000-applicant entitled to leave.;in a suit for partition the plaintiff valued his claim at rs. 5,500 for jurisdiction. the trial court allowed the suit and provided in its decree that defendant no. 4, a brother of the plaintiff, should also recover his share with mesne profits equal to that of the plaintiff. there was an appeal to the high court by 'defendants nos. 1 to 3 and they valued the appeal at rs. 5,500 for jurisdiction. the..........plaintiff's suit.2. there has been some argument however on the question whether the value of the subject-matter within the meaning of section 110 of the civil procedure code is rupees ten thousand or upwards. the suit was brought by the plaintiff to recover his one-sixth share in certain properties by partition. the trial court allowed the suit and provided in its decree that defendant no. 4, a brother of the plaintiff, should also recover his one-sixth share, with mesne profits equal to those which the plaintiff would get, on payment of the necessary stamp duty. the plaintiff valued his claim at rs. 5,410 for court-fees and rs. 5,500 for jurisdiction. there was an appeal to this court by defendants nos. 1 to 3. they valued the appeal at rs. 4,279 for court-fees and rs. 5,500 for.....
Judgment:

Broomfield, J.

1. This is an application for leave to appeal to the Privy Council. It was a case which involved several difficult questions of law and this Court disagreed with the trial Court and dismissed the plaintiff's suit.

2. There has been some argument however on the question whether the value of the subject-matter within the meaning of Section 110 of the Civil Procedure Code is rupees ten thousand or upwards. The suit was brought by the plaintiff to recover his one-sixth share in certain properties by partition. The trial Court allowed the suit and provided in its decree that defendant No. 4, a brother of the plaintiff, should also recover his one-sixth share, with mesne profits equal to those which the plaintiff would get, on payment of the necessary stamp duty. The plaintiff valued his claim at Rs. 5,410 for Court-fees and Rs. 5,500 for jurisdiction. There was an appeal to this Court by defendants Nos. 1 to 3. They valued the appeal at Rs. 4,279 for Court-fees and Rs. 5,500 for jurisdiction. Thus both in the trial Court and in the appeal the value of the subject-matter was stated to be less than Rs. 10,000, But Mr. Rao who appears for the applicants (plaintiff and defendant No. 4) contends that as the decree of this Court dismissing, the suit and setting aside the trial Court's decree has the effect of depriving, defendant No. 4 of his share also, the value of the subject-matter is really twice Rs. 5,500, that is, Rs. 11,000.

3. Mr. Thakor who appears to oppose the application for leave argues that A in a partition suit the value of the subject-matter is the value of the share;, claimed by the plaintiff and not the value of the whole property. He relies on Lakshman Bhatkar v. Babaji Bhatkar I.L.R. (1883) 8 Bom. 31, and De Silva v. De Silva (1904) 6 Bom. L.R. 403. In the former case it was held that what prima facie determines the jurisdiction of a Court is the claim, or subject-matter of the claim, as estimated by the plaintiff, and that the subject-matter of a claim is the specific thing sought by the plaintiff. So in a partition suit, where the plaintiff seeks for a division and separate possession of his share in joint property, it is the share so claimed which is the subject-matter of the claim, and not the whole of the joint property which is sought to be divided. In the latter case it was held that to determine the value prescribed by Section 596 of the Civil Procedure Code (which corresponds to the present Section 110) the decree is to be looked at as it affects the interests of the party prejudiced by it. Where the detriment to the party seeking relief is estimated at less than Rs. 10,000 the value of the matter in dispute in appeal is not of the prescribed value, the decree itself does not involve any claim or question to or respecting property of the prescribed value, and the case does not fulfil the requirements of Section 596 of the Code.

4. In neither of these cases, however, was there any order made in favour of a party other than the plaintiff. Applying the principle laid down in the latter of the two cases, viz., that the decree is to be looked at as it affects the interests of the party (or parties) prejudiced by it, it would appear that the decree of this Court has affected the interests of both the applicants, viz., the plaintiff and defendant No. 4, and that the decree of this Court does involve a question respecting property of the value of Rs. 10,000 or upwards. It is true that the share of defendant No. 4 is only involved indirectly, but for the purpose of the second paragraph of Section 110 that is sufficient. We certify, therefore, that the decree of this Court in the appeal involves a question respecting property of the value of Rs. 10,000 or upwards.

5. That being so the applicants are entitled to leave irrespective of the question whether there is a substantial question of law because this Court reversed the decree of the trial Court. We may say, however, that there are substantial questions of law also involved.

6. We grant leave accordingly. Costs will be costs in the appeal.


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