1. This is an application by Uma Charan Sett and Annoda Prosad Sett for a Certificate that this is a fit and proper case for appeal to the Judicial Committe of the Privy Council. The relationship of the parties appears in the judgment of my learned brother Mr. Justice Mookerjee. After stating that the appeal was by the first three defendants in a suit for partition and accounts of a joint family property, he went on to say; 'The founder of the family was one Bhola Nath Sett who died in or about Agrahan 1284, that is, towards the end of the year 1877. He left three sons Uma Charan (defendant No. 1), Annoda (defendant No. 2) and Nogen who died in 1279, He also left a widow Nritya Moyi, who is the third defendant, The fourth defendant in the suit is Rajendra who is the son of the first defendant Uma Charan. The plaintiffs in the suit are Kauai and Jyotindra---the two sons of Nogen. The second plaintiff was, at the date of the institution of the suit and is even now, an infant represented by his mother Hari Priya.'
2. The appellants to this Court were the first three defendants, Uma Charan, Annoda and Nritya Moyi, and they were represented by the same learned Vakil, Baba Ram Chander Mozamdar, and the plaintiffs were, represented by Dr. Dwarka Nath Mitter.
3. The real issue in the case was, whether certain premises had been bought by the widow out of her own separate estate so as to make the premises her own property, or whether the premises had bean bought by the deceased man Bhola Nath in the name of his wife.
4. The appellants in this Court were basing their title upon a deed of gift by Nritya Moyi to the two appellants Uma Charan and Annoda. The First Court held that the property had been bought by Bhola Nath in the name of his wife, and this Court tame to the same conclusion and held that the decree made by the Subordinate Judge must be affirmed subject to one variation; as to this variation the learned Judge said : 'On behalf of Nritya Moyi the third defendant, Babu Bam Charan Mozumdar has pointed out that if it is established that the shop was not purchased by her in 1868 but was in reality purchased by her husband Bhola Nath the question arises whether she is not entitled to a share of the properties on partition. This aspect of the case does not appear to have been raised in the Court below nor pressed before the Subordinate Judge. The point is also not taken in the grounds of appeal presented to this Court for the reason that if such a ground were taken it might weaken the defence that the property belonged not to Bhola Nath but to Nritya Moyi. But, in the circumstances of this case, we of opinion that when the properties come to be divided one-fourth share should be allowed to Nritya Moyi in lieu of her right to maintenance to be held by her during her lifetime.'
5. 'Subject to this variation the decree of the Subordinate Judge is affirmed,'
6. The result, therefore, was that, instead of getting one-third of the property in accordance with the judgment of the First Court, the effect of the judgment of this Court Was that Uma Charan and Annoda would each get a quarter of the property and Nritya Moyi would get one-quarter during her life-time. The question, therefore, is whether the judgment of this Court is one of affirmance or reversal. In my judgment, it is one of affirmance except in so far as it was varied with the consent of the appellants to this Court.
7. It is dear that the decree of the lower Court was varied at the instance of Babu Ram Chunder Mozumdar acting on behalf of the appellant Nritya Moyi. But for his application the judgment of the First Court would have been affirmed, without any variation. The learned Vakil appeared not only for Nritya Moyi but also for the other two appellants, and inasmuch as it is suggested that the learned Vakil in making that application made any reservation as to the rights or position of the first two defendants, who now desire to appeal to the Privy Council, in my judgment, the conclusion mast be that, when the learned Vakil made that application on behalf of Nritya Moyi he must be taken to have made it with the consent of his other two clients, namely, the present appellants to England. Consequently, the position is, that this Court affirmed the decision of the lower Court except as regards the variation which was made at the request of Nritya Moyi and with the consent of the other appellants. The decree of this Court, therefore, was one of affirmance and, under these circumstances, it is necessary for the appellants who desire to appeal to the Judicial Committee of the Privy Council to show that there is some substantial question of law involved. This, they have failed to do, and consequently the application must be refused with costs, five gold mohurs.