1. C.M.P. No. 89 of 1938. - This is an application for leave to appeal to His Majesty in Council against the decree passed by this Court in Appeals Nos. 571 of 1931 and 260 of 1932. The application is opposed.
2. The appeals arose out of a suit filed by a reversioner for recovery of possession of the suit properties on the footing that as reversioner to the estate of the last male holder he is entitled to possession. There were two sets of alienees in the case, one set of people who traced their title to the mother of the last male owner and another set of alienees who traced their title to the widow of the last male owner. The lower Court dismissed the suit so far as it related to the properties claimed through the mother but it decreed the suit in respect of properties alienated by the widow of the last male owner. Appeal No. 260 of 1932 was filed by the plaintiff against so much of the lower Court's decree as dismissed the suit in respect of pertain properties. Appeal No. 571 of 1931 was filed by such of the defendants as had been directed by the decree of the lower Court to surrender possession. In this Court Appeal No. 260 of 1932 was in the main allowed but Appeal No. 571 of 1931 was dismissed.
3. It is not disputed that even taking the two appeals separately, the properties involved in each of them exceed Rs. 10,000 in value. So far as Appeal No. 260 of 1932 is concerned, the decision of this Court undoubtedly reversed the decision of the lower Court. The petitioners are therefore entitled to an order granting them leave to appeal in Appeal No. 260 of 1932. But as the decision in A.S. No. 571 of 1931 confirmed the decree of the lower Court in respect of the properties therein involved and as against the parties concerned therein, it seems to us that the petitioners are not entitled to a certificate in that appeal unless they also satisfy the Court that there is a substantial question of law involved.
4. Mr. T.M. Krishnaswami Aiyar, the earned Counsel for the petitioners, contended that as both the appeal arose out of the same suit, the decree of this Court must be regarded as a single decree and as it at least in part modified the decree of the lower Court, the petitioners are entitled to appeal against the whole decree taking the appeals together. This contention is opposed to several decisions of this Court, the latest being Venkitaswami Chettiar v. Sekkutti Pillai : (1936)71MLJ580 . It has generally been held in this Court that in cases of this kind where parties claiming under various alienations are brought before the Court, the mere fact that the rules of procedure permit the claims to be joined in one suit does not justify the decree being treated as single and inseparable when the appellate Court confirms the lower Court's decree in respect of some of the parties and reverses it as against other parties.
5. Mr. Krishnaswami Aiyar next contended that even in Appeal No. 571 of 1931 the appellants proposed to raise the question arising in the appeal against Appeal No. 260 of 1932, namely, that Bangaramma had perfected her title by prescription before the new Act came into force. But the alienees interested in Appeal No. 571 of 1931 claimed under Achamma the widow of the last male holder who admittedly came into possession of these properties even before twelve years from her husband's death had expired and whose possession cannot be held to be adverse to the estate. We therefore see no substance in the proposed contention so far as Appeal No. 571 of 1931 is concerned. We are accordingly unable to grant a certificate in respect of Appeal No. 571 of 1931.
6. A certificate will issue in respect of Appeal No. 260 of 1932 that the case satisfies the requirements of Section 110, Civil Procedure Code. There will be no order as to costs on this petition, as the parties have succeeded in part and failed in part.