1. This is art application for leave to appeal to His Majesty in Council from the decree of this Court in First Appeal No. 130 of 1916 on the ground that the requirements of Section 110 of the Civil Procedure Code are satisfied.
2. In the suit as originally brought the plaintiff claimed one-half share in the family property and valued it at Es. 12,000. The defendant No. 1, his uncle, and defendant No. 2, his grand-mother, pleaded that he was entitled only to one-third share. A decree was passed in his favour to the extent of one-third share in the property. After the preliminary decree was passed the defendant No. 2 died and the plaintiff then made an application to have the decree amended by claiming a moiety in the one-third share of his grand-mother. The trial Court held that on her death that share became equally divisible between the plaintiff and defendant No. 1. The defendant No. 1 preferred an appeal to this Court which related to the one-sixth share which the plaintiff claimed after the death of defendant No. 2 over and above the one-third share already awarded to him, This Court confirmed the decree of the trial Court holding that the plaintiff was entitled to divide equally with the defendant No. 1 the share which defendant No. 2 could have claimed in her life-time.
3. As the decree of the lower Court is confirmed by this Court, under Section 110 it is essential that the appeal must involve some substantial question of law. This condition, in my opinion, is satisfied in the present case. The appeal raises the question as to whether on the death of Yeshodabai the plaintiff became en-titled to a moiety of her share in the property or whether the defendant No. 1 was exclusively entitled to that share.
4. As to the value of the subject-matter of the suit in the Court of first instance it is clearly over Rs. 10,000. But the subject-matter in dispute on appeal to His Majesty in Council would be the one-sixth share of the whole estate. If the value of this one-sixth share is Rs. 10,000 or upwards, the applicant would be entitled to the certificate. But if the value of that share is less than Rs. 10,000, he cannot succeed.
5. It is urged on behalf of the applicant that even if the value of the one-sixth share be less than Rs. 10,000 under the second paragraph of Section 110 the decree sought to be appealed from in this case involves, directly or indirectly, a claim to or question respecting property of the value exceeding Rs. 10,000. It is contended that under this paragraph of the section the property referred to must be taken to be the whole property of the family sought to be partitioned and not only the one-sixth share. I am of opinion that this contention is not sound. In this case the decree from which the applicant seeks to appeal to His Majesty in Council involves, directly or indirectly, a claim to or question respecting one-sixth share of the property only. It is not suggested that by that decree any property outside the one-sixth share to which the appeal to this Court related would be affected. A similar contention as to the true meaning of the second paragraph of Section 110, Civil Procedure Code, in relation to a partition suit was considered and negatived by Jenkins C. J. and Russell J. in De Silva v. Be Silva (1904) 6 Bom. L. R. 403.
6. The applicant, therefore, can succeed only if he is able to satisfy this Court that the one-sixth share of the family property including the mesne profits is worth Rs. 10,000 or upwards. The value of the share according to the value of the family property estimated by the plaintiff in the plaint would be only Rs. 4,000 exclusive of the mesne profits. But the applicant asserts through his son, who has made an affidavit, that the whole property during the year 1918-1919 has considerably increased in value and is worth nearly Rs. 66,000, and that on that calculation the value of the one-sixth would exceed Rs. 10,000. The opponent has filed a counter affidavit made by her father Bapuji Atmaram Tendulkar in which the correctness of the allegation made on behalf of the applicant is questioned. Thus there is a dispute between the parties as to the value of this property. Where such wide fluctuations in the value of the property are asserted, it is essential to fix the date, with reference to which the value of the property should be estimated for the purpose of this application. Having regard to the terms of Section 110 it seems to me that the value of the one-sixth share on the date of the decree from which the applicant seeks to appeal to His Majesty in Council must be determined and must be taken into account in determining whether the requirements of Section 110 are satisfied. This view is supported by the decision in Surendra Nath Roy v. Dwarka Nath Chakravarti ILR (1916) Cal. 119.
7. It is necessary, therefore, to know the market-value of the one-sixth share of the property in suit at the date of the decree of this Court, i. e., on or about the 30th of January 1918. As the parties are not agreed as to the value of the property, under rule 5 of Order XLV we refer the dispute as to the value of the one-sixth share in the whole property, which is the subject-matter in dispute on appeal to His Majesty in Council, for report to the trial Court.
8. The lower Court will also report as to the value of the one-sixth share of the mesne profits from the date of the suit to the date of the High Court decree. Apparently the mesne profits have not been ascertained yet. For the purpose of this application it is necessary that they should be estimated, as the one-sixth share in the mesne profits forms part of the subject-matter of the appeal to His Majesty in Council. The report to be made to this Court in one month.
9. I agree. The plaintiffs one-half share was the subject-matter of the suit and was valued at Rs. 12,000 in the Court of first instance. The defendant No. l's claim in appeal is for one-half of the one-third share of defendant No. 2 which would be at the previous rates only Rs. 2,000. But it has been contended that the value of the property has risen and that the value of the claim in appeal would now be Rs. 11,000, being one-sixth of the total value now estimated to be Rs. 66,000, and affidavits have been put in by the parties on either side affirming and contesting this position. There must, therefore, in my opinion, be an inquiry as to the real value under rule 5 of Order XLV of the Schedule to the Civil Procedure Code.
10. It has been urged that in any case the value of the share only ought not to be regarded, but the value of the whole property. But it seems to me that we ought in this matter to follow the decision of De Silva v. De Silva (1904) 6 Bom. L.R. 403 and not the contrary decision of Lala Bhugwat Sahay v. Rai Pashupati Nath 10 C.W.N. 564 of the Calcutta High Court, On the other hand the value of the subject-matter of the appeal ought, in my opinion, to be the value at the date of the decree of the High Court as held in the case of Surendra Nath Roy v. Dwarka Nath Chakravarti ILR (1916) Cal. 119
11. There is, in my opinion, a substantial question of law involved, viz., the exact effect of the proceedings in the litigation as regards the share of the deceased defendant No. 2 and the legal effect of that position under the rules of Hindu law.