J.H. Collins Kt., C.J.
1. The point submitted to the Full Bench is what is meant by the phrases 'value of the subject-matter of the suit in the Court of First Instance,' and 'value of the matter in dispute on appeal,' occurring in Section 596 of the Code of Civil Procedure relating to appeals to the Privy Council.
2. It is contended on the one side that the market value is meant and on the other side that it is the value as calculated in the Court of. First Instance.
3. The rules of the Privy Council, dated 1838, declared that no appeal shall lie to the Privy Council unless the value of the matter in dispute in such appeal shall amount to the sum of Rs. 10.000 at least.
4. In Mohanalal Sookul v. Bebee Doss (1860) 7 M.I.A. 428 the Privy Council held that in a case in which the value was laid in the plaint as being under Rs. 10,000, as the calculation was estimated with reference to the stamp-duty only, if satisfactory evidence was produced that the real or market value of the property exceeded Rs. 10,000 leave to appeal would be granted and in Lamb v. Bejoy v. Kishen Dass (1861) 8 M.I.A. 428 the same course was adopted. In Balu Lekeraj Roy v Kanhaya Singh 3 Sir James Colville in the Judgment of the Privy Council says :' The stamp duties imposed for fiscal purposes are calculated on a certain rule fixed by law, but the right of appeal depends on the value which is a matter of fact.'
5. In 1874 the Privy Council Appeals Act was passed and Section 5 enacts that the amount or value of the subject-matter of the suit in the Court of First Instance must be Rs. 10,000 or upwards and the amount or value of the matter in dispute on appeal to Her Majesty in Council must be the same sum or upwards' and these words are incoporated in Section 596, C.P.C.
6. I do not think that the words 'value of the subject-matter in the the Court of First Instance' in any way affect the right of appeal when the real value of the subject-matter is Rs. 10,000--if it was  intended to bind the applicant to the value indicated by the amount paid as stamp duty, the Legislature would surely have said so and it ought not to be assumed that the Legislature intended to take away from the subject or limit, such an important privilege as the right to appeal to the Privy Council without the words being clear and explicit.
7. It has been suggested that these words were added in the Act of 1874 to prevent costs being added to the matter in dispute so as to raise the value by addition of the costs to cover the sum of Rs. 10,000, but this appears to be a mere surmise.
8. I am of opinion, in answer to the reference, that the real market value of the matter in dispute is the test as to whether an appeal to the Privy Council lies.
Muthusami Aiyar, J.
9. I am also of the same opinion. Having regard to Section 696, Clause (b), I do not think that the value of the matter in dispute on appeal to Her Majesty in council and of the subject-matter of the suit in the Court of First Instance is any other than the market value. The only effect that can reasonably be given to the first part of Section 596 is that of excluding costs incurred in the Court of First Instance in fixing the value of the matter in dispute on appeal. Otherwise there would be no necessity for referring to the value of the subject-matter of the suit in the Court of First Instance. I do not consider that the Madras Civil Courts Act (Act III of 1873, Section 14) can be permitted to control the construction to be put upon Section 596 which is applicable to the whole of British India.
10. I agree.
11. I am of the same opinion and agree with Muthusami, Aiyar J., in thinking that the object of the allusion to the of First Instance was to exclude costs.