Sinha, J.:— This is an application for leave to appeal to His Majesty in Council under section 110 of the Code of Civil Procedure on the ground that the decree of this Court involves,

“directly or indirectly, some claim or question to or respecting property”

of the value of Rs. 10,000 or even upwards. The facts, which are, for the purposes of this application, not in dispute, are briefly these.

The applicant, Mst. Ram Devi, brought a suit for a declaration that she was the sole owner of a certain enclosure and the defendants were not entitled to proceed against it in execution of the decree in suit No. 183 of 1938, Badlu Ram v. Mool Chand and of the decree in suit No. 4336 of 1934 of the court of small causes at Cawnpore nor in the execution case No. 205 of 1937, passed by the Munsif of Cawnpore, in the suit brought by Ambey Prasad against her husband, Mool Chand. There was a further prayer that the defendant No. 2, Mool Chand., be restrained from realising the rents from the tenants of the said enclosure. Her case, in substance, was that she was the owner of the property and not her husband, who had no right to deal with it. The value of the subject-matter of the suit for the purposes of jurisdiction, was laid at Rs. 17,500 and the same was the value for the purposes of court-fee.

Mool Chand entered no defence. Badlu Ram and Ambey Prasad raised a defence which was, in substance, identical. They pleaded that the property belonged to Mool Chand and not the plaintiff, who was his wife. Various other defences were raised, which are not germane to the present application.

The learned Civil Judge of Cawnpore found that the plaintiff, and not Mool Chand, was the owner of the property. He granted the plaintiff the declaration that she was the owner of the property in dispute and that it was not liable for the debt due to Ambey Prasad or Badlu Ram.

Badlu Ram alone came to this Court in first appeal. A Bench of this Court held that the plaintiff had failed to show that she had acquired an interest in the property. In the result, it set aside the decree of the learned Civil Judge so far as it went against Badlu Ram.

Mst. Ram Devi now seeks to go in appeal to His Majesty in Council.

It is conceded that the mortgage decree passed in favour of Badlu Ram is for a sum far below Rs. 10,000. It is, however, not denied that the value of the entire enclosure is above Rs. 10,000 that is, Rs. 17,500. The question, therefore, is whether the facts of this case attract the application of the second part of section 110 of the Code of Civil Procedure. In other words, even though the interest of Badlu Ram is less than Rs. 10,000 does the proposed appeal “involve, directly or indirectly, some claim or question to or respecting property” of the amount or value of Rs. 10,000.

The intention of the Legislature is clear. The section does not merely say that the decree of this Court or the proposed appeal to His Majesty in Council must involve a claim to or respecting property of Rs. 10,000 “directly”, but it is enough if it involves such a claim even “indirectly”.

The learned counsel for the applicant relies on Sri Kishan Lal v. Kashmiro(1) and Nadir Husain v. Municipal Board Agra(2). The facts of Sri Kishan Lal were these:

There was a dispute between the heirs of one Harnam Prasad as to the division of the family property. The family was possessed of property worth over Rs. 1,60,000, among which were certain mortgagee rights. The matter was referred to arbitration by the male heirs, and an award was made in 1893 by which all the property, including the mortgagee rights, was divided among the defendant, Mst. Kashmiro, the widow of the deceased, and certain persons who claimed to be members of the joint family with the deceased, the plaintiff being amongst them. The lady was given an eight anna share in the mortgagee rights, while the plaintiff was given four annas. The lady alone brought a suit upon the mortgage and recovered the money from the mortgagors. The plaintiff, thereupon, brought the suit for recovery of his share in the mortgage money. The suit was valued at more than Rs. 10,000. The Lower Court gave the plaintiff a decree for Rs. 8,800. In appeal the High Court, holding that the award was fraudulent and collusive and that the family was a separate family, dismissed the suit. The plaintiff applied for leave to appeal to His Majesty in Council.

This Court granted leave and observed as follows:

“This Court held, reversing the decision of the court below, that the award was not binding on the lady for reasons stated in this Court's judgment. It is the correctness of this decision which is challenged in the proposed appeal. If the decree of this Court becomes final, the question of the validity of the award will also become final as regards property other than the property in dispute in the present suit.”

It, therefore, supports the applicant's contention. The facts in the case of Nadir Husain v. Municipal Board of Agra are not very clear from the judgment, but they appear to be these:

The Municipal Board of Agra brought a suit for recovery of Rs. 17,000 against defendant No. 1 principally, with a prayer that defendants 2 to 4 were liable to pay Rs. 7,625 under a hypothecation bond and, in the event of default, the mortgaged property was liable to be sold. There was a further relief that, in case the mortgaged property was not found sufficient to satisfy the mortgage decree, the plaintiff would be permitted to apply for a money decree against defendant No. 1. The value of the subject-matter in dispute in the trial court was more than Rs. 10,000 so far as all the defendants were concerned, but was less than Rs. 7,525 so far as the defendants Nos. 2 to 4 were concerned. The Subordinate Judge held that defendant No. 1 was liable for the full amount, but that the defendants 2 to 4 were liable to the extent of Rs. 7,265 only, qua the arrears of rent which had accrued prior to the date of the security bond, but that their property was not liable for rents which accrued after the security bond. The plaintiff appealed to the High Court and this Court held that the rents which accrued after the date of the security bond also created a charge on the property which was liable to be sold in execution of such arrears. But the total liability of defendants 2 to 4 was limited to the sum of Rs. 7,265 only.

Defendants 2 to 4 sought leave to go in appeal to His Majesty in Council. The learned Judges allowed leave and held that,

“So far as the pecuniary liability of the applicants' property is concerned it is certainly limited to the sum of Rs. 7,625 only. They can never be called upon to pay more than that amount nor can more than that amount be realised out of their property. But it cannot be disputed that property worth more than Rs. 7,625 can be put up for sale at auction in execution of the mortgage decree and sold. After the realisation of Rs. 7,625 the balance will have to be paid to the defendants. It is also clear that at auction the mortgaged property may not fetch its full value and therefore property worth more than Rs. 10,000 may be sold at auction for realising Rs. 7,625 only. The defendant can never recover the property when once sold though he will get the surplus, if any. In cases of partition it has been held by this Court in the case of Sri Kishan Lal v. Kashmiro and in Mohammad Asghar v. Abida Begam that although the value of the plaintiff's share may be less than Rs. 10,000 the entire property involved is of the value of Rs. 10,000 or upwards and the requirement of section 110, Civil Procedure Code, is fulfilled.”

The learned counsel for the opposite party contends that the latter is no longer good law, in view of the decision of their Lordships of the Privy Council in Bai Shevantibai v. J.R Warick(3) inasmuch as their Lordships have specifically overruled Mohammad Asghar v. Abida Begam and have distinctly held that—

“a question as to the title of the plaintiff to the share which he claims in the joint property does not become a question respecting the whole of the joint family estate merely, because if his title is established it will result in the joint family estate being partitioned.”

The learned counsel is right, only in so far that partition cases cannot now afford a proper guide for the determination of the question before us. The question still remains whether the decision in Nadir Husain's case is good authority in other classes of cases.

Reliance is also placed on behalf of the opposite party on Hanuman Prasad v. Bhagwati Prasad. The facts were these:

One Paltan Singh died in 1822. One of his widows, Harnam Kunwari, sold a share in village Kot Kamarhya. Hanuman Prasad, one of the reversioners, brought a suit for cancellation of the sale-deed. It was decreed by the trial court, but dismissed by the High Court. An application under section 596 of the Code of Civil Procedure of 1882, which corresponds to section 110(b) of the present Code, was made for leave to appeal to His Majesty in Council. The value of the suit of the appeal to the High Court and of the proposed appeal to His Majesty in Council was less than Rs. 10,000, but it was argued that the title of other purchasers to the rest of the villages transferred by the lady depended on the decision of the case.

The learned Judges rejected the argument and held that—

“It is not enough that the question decided by such decree is a question of title which may possible affect the title of persons who are not parties to the decree to property not the subject-matter of the suit in which the decree was passed, and concerning the title to which property there is no litigation pending.”

Reliance is also placed on Sudaman Prasad v. Mohd. Abdul Alim and Prag Narain v. Fakhrul Nisa. The latter only follows the earlier.

In the case of Lala Sudaman Prasad, the applicant, Sudaman Prasad, had a decree for a sum of Rs. 9,957-5-3, that is, less than Rs. 10,000, but the property against which he sought attachment was worth more than Rs. 10,000. Leave was refused on the ground that—

“The suit must involve rights and claims to property which rights and claims are worth Rs. 10,000 and upwards, not that the rights affect properties whose value is Rs. 10,000 and upwards.”.

The learned counsel has also taken his stand upon Mirza Abid Husain Khan v. Ahmad Husain(4). Their Lordships held that, although the property liable for the payment of the annuity was worth more than Rs. 10,000, nevertheless, as the value of the annuity itself was less than Rs. 10,000 the case did not come within section 110(6) of the Code of Civil Procedure.

In so far as the learned Judges, in the case of Sudaman Prasad, refused to follow the decision of this Court in Nadir Husain, I must, with air respect dissent from their view. No reason has been assigned, except that it runs counter to the view expressed in some cases of Bombay and Madras. All the Bombay cases were partition and partnership cases. It is not possible to ascertain the nature of the suit from one of the Madras cases; the other is based upon an earlier partition cases of Bombay. These cases form a class by themselves. As I have observed above, after the decision of their Lordships of the Judicial Committee in Bai Shevantibai, they cannot afford a proper guide.

Coming to the cases of our own Court, the preponderance of authority seems to be in favour of the applicant. The decision in the case of Sri Kishan Lal, decided in 1913, is certainly not reconcilable with the earlier decision in the case of Hanuman Prasad in 1902. In a case which was decided in 1945, Aisha Begam v. Kundan Jan, to which one of us was a party, both these cases came up for consideration and it was held that it was difficult to reconcile the two decisions.

It remains to consider whether the decision of their Lordship of the Judicial Committee in Mirza Abid Husain Khan is really against the applicant. It is true that the value of the property affected by the annuity was more than Rs. 10,000, but the applicant, who was entitled to the annuity, was interested only in the annuity or property which could secure that annuity and no more. Here the applicant is interested directly in the whole of the enclosure, which is worth more than Rs. 10,000 and one of the reliefs claimed was a declaration that she was its sole owner. There is a reference to this point in the case of Sudaman Prasad when the learned Judges say that no appeal lies under section 110 unless the value of the loss or detriment which the applicant has suffered by the passing of the decree or order and from which he seeks to be relieved by His Majesty in Council is Rs. 10,000 or upwards.

I feel bound to say, however, that they did not pursue their observation to its logical conclusion. Possibly, they lost sight of the intention of the Legislature when it says that the order must involve not only directly but even indirectly a claim or question to property of the value of Rs. 10,000.

The view taken in the cases of Sri Kishan Lal and Nadir Husain appears to be warranted by the language of the statute than that taken in the Oudh cases relied upon by the learned counsel for the opposite party.

The case, therefore, fulfils the requirements of section 110(b) of the Code of Civil Procedure and 1 would so certify.

Verma, C.J:— I agree.

Per Curiam:— It is certified that, as regards amount or value, and nature, the case fulfils the requirement of section 110 of the Code of Civil Procedure.