1. This is an application for leave to appeal to His Majesty in Council from a decree made by this Court on a first appeal. The suit was for partition of certain properties the plaintiff's claiming a half share therein, and also for accounts. The Subordinate Judge made a decree declaring in effect the plaintiffs' share to be one-third, after excluding certain properties which he found had been already partitioned, and also ordering accounts for a certain period. Of the properties in respect of which he decreed partition, he ordered a few items to be kept joint and the others he ordered to be partitioned by metes and bounds. This Court, on an appeal by plaintiff 1 and a cross-objection by plaintiff 2, varied the decree of the trial Court by dismissing the appeal save and except that it ordered a partition by metes and bounds of all the properties found to be joint. Plaintiff 1 is the applicant for leave.
2. The appellant relies upon the decision of the Judicial Committee in Annapurnabai v. Ruprao 1925 PC 60 for his contention that the decree of this Court is not a decree of affirmance and so it is not necessary for him to show that the appeal involves some substantial question of law and that he is entitled to leave as a matter of course inasmuch as the subject-matter of the suit as also of the intended appeal is over Rs. 10,000 in value. There is undoubtedly considerable force in this contention if the arguments of the petitioner's counsel in that case is to be taken as having been accepted by their Lordship in its entirety in the order that was made. This Court however has refused, on the strength of Annapurnabai v. Ruprao 1925 PC 60, to break away from a long course of decisions of Courts in India which have firmly laid down the principle that when the appellate Court modifies the original decree upon a single point and that completely in the applicant's favour so that he has no further grievance in that matter, he cannot, because of that modification, have a right to an appeal on other points on which the Courts have concurred, without showing a substantial question of law. The enormity of the opposite view is so very great that a far more clear and express pronouncement of the Judicial Committee would be necessary to uphold it. Annapurnabai v. Ruprao 1925 PC 60 has been referred to in some of the decisions of the Patna and the Madras High Courts as laying down that unless the decree from which the appeal is sought to be taken is nothing but a decree which in its entirely affirms the decree of the Court immediately below it, leave cannot be withheld if the requirement as to value is satisfied, or in other words that the incident as to affirmance is to be entirely ignored as soon as any variation is found: see Ali Zamin v. Mohammad Akbar Ali Khan 1928 Pat 609, Jamna Prasad v. Jagannath Prasad 1929 Pat 561, Perichiappa Chettiar v. Nachiappan 1932 Mad 46 and Homeshwar Singh v. Kameshwar Singh 1933 Pat 262.
3. Now, in Sreenath Ray Bahadur v. Secy, of State (1904) 8 CWN 294 the Judge below had given an award of compensation at a certain figure and the High Court increased that amount. The applicant for leave wanted to go to the Privy Council so that the amount might be further increased. For this excess which was to be debated before the Privy Council, the two Courts below were at one. It was held that being the position the decree to be appealed from was one of affirmance, or in other words that Section 110 of the Code was to be construed with reference to the subject-matter in dispute in appeal to the Privy Council. In Annapurnabai v. Ruprao 1925 PC 60 the position was that the person claiming to have been adopted by the senior widow brought a suit claiming the property. The junior widow and the person whom she said she had adopted resisted the claim and the former claimed maintenance at Rs. 3,000 per annum. The first Court decided in favour of the plaintiff upon the question of adoption but decreed to the widow maintenance at the rate of Rs. 800 per annum. The appellate Court increased the maintenance to Rs. 1,200 per annum, but in all other respects affirmed the decree of the first Court. The junior widow and her alleged adopted son applied for leave to appeal to the Privy Council. If Sreenath Ray Bahadur v. Secy, of State (1904) 8 CWN 294 was to be applied the only matter of substance in the proposed appeal to the Privy Council, namely the excess amount of maintenance that was being claimed, being one in respect of which both the Court had been in agreement the decree sought to be appealed from was to be regarded as a decree of affirmance. The Privy Council appears to have been of opinion that it was not to be so regarded. The particular application made in Sreenath Ray Bahadur v. Secy, of State (1904) 8 CWN 294 of the principle that in applying Section 110 of the Code you have to have regard to the subject-matter of dispute in the appeal to the Privy Council must be taken to have been overruled. But does Annapurnabai v. Ruprao 1925 PC 60 go any further than that and does it lay down that in every case where the decree of the High Court is not a mere decree dismissing the appeal you are to take it that it is not a decree of affirmance so as to take the case out of para. 3 of that section and bring it within the first? Rankin, C.J., in Narendra Lal v. Gopendra Lal 1927 Cal 543, was not prepared to hold on the authority of Annapurnabai v. Ruprao 1925 PC 60 that such a position could be affirmed. He observed:
It appears to me that the case of Annapurnabai v. Ruprao 1925 PC 60 is not in itself a sufficient authority to justify this Court in abandoning the principle which it has with other High Courts acted upon; that is to say, I do not think that it shows that it is an erroneous view that we have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council.
4. In Annapurnabai v. Ruprao 1925 PC 60 the appeal to be preferred was on the question of maintenance, and the two Courts had differed on the question of the amount of the maintenance, the High Court in favour of the intending appellant. In the case before Rankin, C.J., the original decree gave the applicant a certain share in the property in suit, but the appellate Court while it confirmed the original decree in every other respect modified it in respect of the share giving him the whole share he claimed so that on that point he had no further grievance. The question was whether the appellate decree was nevertheless one varying the original decree and the applicant was entitled to leave to appeal without proving that a substantial question of law was involved. Rankin, C.J., held in the negative and observed:
We may take it, I think, that where the amount is a question in dispute the fact that the Courts differ and the higher Court differs in favour of the applicant does not mean that the decision is one of affirmance but I am not prepared to say that because on a totally different point, namely a point about the share, the applicant has succeeded and succeeded altogether, so that he has no further grievance in that matter; he can without showing a substantial question of law have a right to litigate upon other points upon which the Courts have been in agreement.
5. As regards the cases cited on behalf of the applicant the leave that was granted in them may perhaps be justified upon other grounds than upon the applicant's contention as regards Annapurnabai v. Ruprao 1925 PC 60. But whether that is so or not we need not pause to consider, because it cannot be denied that the cases do support the view which the applicant contends for. On the other hand there have been decisions in which the view taken by Rankin, C.J., as to the true effect of Annapurnabai v. Ruprao 1925 PC 60 has been adopted. For instance in Karimbhoy Shamsuddin v. Rudra Pratap Singh 1932 Nag 118, it has been said:
Where the modification of a decree of a lower Court consists of a modification of a pecuniary nature in the appellant's favour on a matter to be debated before the Privy Council, it amounts to a variation of the decree of the trial Court, and it is immaterial as far as that point is concerned, whether under Section 110 any substantial question of law is involved. But the appellant cannot make that decision a basis of appeal to the Privy Council on grounds unconnected with or dissociable from those on which he has succeeded and on which the Courts were of one mind.
6. In Bansi Lal v. Gopal Lal 1930 Lah 102 the trial Court's decree was for Rs. 13,000 and the appellate Court varied it by ordering, in accordance with the award on which it was founded, that if the defendant did not give possession to the plaintiff within a certain time he would have to pay him that amount. Leave was refused as it was thought that the variation was not a substantial one. A Special Bench of the Allahabad High Court however in Nathu Lal v. Raghubir Singh 1932 All 65 has taken the view that Annapurnabai v. Ruprao 1925 PC 60 is an authority for the proposition that if the decree of the Court below has been varied, no matter to what extent the decree cannot be one of affirmance and there is no reason why words should be read into the section which are not there. The above in short is the position of authorities bearing on the point. We have carefully considered the matter and are inclined to agree in the view of Rankin, C.J., as to the true effect of Annapurnabai v. Ruprao 1925 PC 60 and we would prefer to adhere to it until a more definite and authoritative pronouncement is made by the Judicial Committee to the contrary.
7. We proceed next to consider whether there is a substantial question of law involved in the proposed appeal. The substantial question in controversy between the parties is whether the properties in suit belonged to one Hari Nath or to his wife Jagatmohini; the plaintiffs claimed a half share on the footing that the properties belonged to Hari Nath, while the defendants' case was that the plaintiffs' share amounted to only a third the properties having belonged to Jagatmohini and not to Hari Nath. The applicant for leave takes as his first ground that the onus of proof has been wrongly placed on the plaintiffs, and that in any event such burden as rests on them is not the same in respect of all the properties. In our opinion no two views are possible on the question of onus, and the different items of properties have been separately considered in order to find out to what extent the burden lies on the plaintiffs and to what extent it has been discharged.
8. It is then said that so far as properties standing in Mohendra's name are concerned the plaintiffs as heirs of Mohendra should get a larger share. But this argument overlooks the common case of both parties-a case which has also been found to be true-that Mohendra was not the owner of the properties but only a benamdar either for Hari Nath or for Jagatmohini and that the plaintiffs have never come forward to claim as Mohendra's heirs. Thirdly, it has been argued that the decision overlooks the fact that Jagatmohini having come into possession of some of the properties as guardian under Act 40 of 1858 had assumed a fiduciary character of which she could not divest herself without first making over possession to the beneficial owners and getting herself discharged from that character, and therefore, the defendants who claim through her are estopped from setting up her title to the properties. This contention was never raised at any point of time till now and depends on facts which have never been investigated.
9. Nextly it has been said that from the facts found no inference in the nature of a family arrangement should have been inferred. What is wanting to warrant such inference is said to be this: that a dispute, such as would justify a family arrangement, has not been sufficiently proved by evidence. There is however a finding, rightly or wrongly arrived at, that there was an apprehension of a dispute. We therefore cannot see that any question of law arises. Fifthly it is said that mere acting for a number of years under the said family arrangement could not effect a change of title unless limitation or adverse possession for the statutory period or some doctrine of estoppel intervenes, and it is urged that in the decision there are findings which go to show that these extraneous incidents are absent. The answer to the contention is that part performance has been found. The question though one of law, is not in our judgment a substantial question of law. We accordingly do not see our way to grant the leave asked for. The application is dismissed with costs, hearing-fee 5 gold mohurs.