1. This is an application under Section 110 and Order 45, Rule 2, Civil P.C., for leave to appeal to His Majesty in Council. The following genealogical table will be of assistance in following the case:

RAI JWALA SHANKER | _________________________________________________ | | | Rai Neta Nand Gauri Shanker Tika Ram (died in 1925) (died in 1936) | | | _________________ (His sons and grandsons | | are now the landlord 2nd wife 1st wife debtors with the exoep- Mt. Brij Eani Mt. Bittan tion of Virendra Bahadur | | grand son) | | | Mt. Jumna Kuer | Objector | Kunj Behari (died on 9th March 1932) 2nd wife | Rai Bakhtawar Singh Mt. Rani Kunwar | (died in 1884) (died in 1903) | Mt. Bittan | Husband Babboo Tika Ram (died in 1896) | (died on 27th Dec. 1929) | Mt. Jamuna Kunwar daughter

2. The sons and grandsons of Gauri Shanker made an application under Section 4, U.P. Encumbered Estates Act, on 21st September 1935. They furnished a list of certain property. On 20th August 1936, they furnished a supplementary list of further property, consisting of 37 items as belonging to them. Mt. Jamuna Kuer, the daughter of Tikaram by his first wife, took exception to the supplementary list and claimed the property as the step sister of Kunj Behari. The learned Special Judge by his judgment of 4th May 1942, rejected her claim on the ground that she was, on the authorities as they existed then, not entitled to the estate of her half brother. Against this decree she came in appeal to this Court. The learned Judges, by their judgment of 24th July 1944 held that in view of the decisions of their Lordships of the Privy Council in Mt. Sahodra v. Ram Babu ('43) 30 A.I.R. 1943 P.C. 10 and Mt. Mesar Kuer v. Bishundeo Singh ('43) 30 A.I.R. 1943 P.C. 184, she was entitled to the estate. They, however, accepted her appeal only with regard to 18 out of 37 items of the property. The applicant proposes to go in appeal to His Majesty in Council against the decision of this Court with regard to the remaining 19 items.

3. The value of the subject-matter in dispute, both in the Court of first instance and this Court was Rs. 50,000 and the value of the subject-matter of the proposed appeal to His Majesty in Council is also above Rs. 10,000. What falls to be determined, therefore, is whether the present application fulfils the requirements of Section 110, Civil P.C. The answer to this question depends upon the interpretation to be placed on the expression "affirms the decision of the Court immediately below" in the section. A mass of literature has grown round the word affirms and there is considerable divergence of opinion among the different High Courts. The case in Annapurnabai v. Ruprao ('25) 12 A.I.R. 1925 P.C. 60 forms the foundation of the entire case-law, but, curiously enough, this case although its facts were so simple, is the rock on which judicial opinion has split. It will have to be examined in detail. We are, however, relieved of the necessity of tracing the course of judicial authority dating from this case, inasmuch as there has, on this point, been a Pull Bench decision of this Court in Jaggo Bai v. Harihar Prasad Singh ('41) 28 A.I.R. 1941 All. 66. We, however, propose to examine a few of the authorities subsequent to this decision, as the main contention of the learned Counsel for the opposite parties is that the facts of the Full Bench case are distinguishable from those of the present case and there have been two recent pronouncements of the Lahore High Court which definitely disagree with the view taken by this Court in Jaggo Bai v. Harihar Prasad Singh ('41) 28 A.I.R. 1941 All. 66. The facts before their Lordships of the Judicial Committee Annapurnabai v. Ruprao ('25) 12 A.I.R. 1925 P.C. 60 in were briefly these : One Shankar Rao died leaving behind him two widows, Ambu Bai and Annapurna Bai. The plaintiff, Euprao, claimed to have been adopted by Ambu Bai and on attaining majority in 1915, he sued for possession of Shankar's property. The suit was resisted by Annapurna Bai and one Kashi Nath, who also claimed to have been adopted by Annapurna Bai. Annapurna Bai prayed for maintenance in case the adoption of Kashi Nath was not proved. The Subordinate Judge decreed the suit but granted Rs. 800 per year as maintenance to Annapurna Bai. On appeal, the decree was varied by increasing the amount from Rs. 800 to Rs. 1,200 but, in other respects, the decree of the lower Court was left unchanged.

4. The defendants then applied to the Court of the Judicial Commissioner for leave to appeal to the Privy Council but the application was dismissed on the ground that the decree of the first Court had been affirmed by the appellate Court except in respect of a 'small change' in the amount of maintenance and no question of law being involved, the leave could not be granted. On the application for special leave it was contended on behalf of the petitioners that the appellate 'Court, in enhancing the maintenance allowance, did not affirm the decree of the first Court, but varied it and, therefore, no substantial question of law need be involved. Their Lordships entertained the application in the following very brief judgment:

In the opinion of their Lordships the contention of the petitioners' counsel as to the effect of section 110 of the code is correct. They had, therefore, a right of appeal. Special leave to appeal should be granted, but should be limited to the question of maintenance. The petitioners' chance of success is not material to their application.

Their Lordships will humbly advise His Majesty that special leave to appeal be granted, but that it should be limited as already stated.

5. It might be mentioned that Sir George Lowndes, the counsel for the petitioners, made it clear that he did not mean to contest the finding of adoption. We now come to the case in Jaggo Bai v. Harihar Prasad Singh ('41) 28 A.I.R. 1941 All 66. The facts were these : Jaggobai agreed to sell to Harihar Prasad certain mortgagee rights for a sum of Rs. 52,000. Harihar Prasad paid half the purchase price, i.e., Rs. 26,000, She failed to execute the deed of assignment. Harihar Prasad sued for the refund of the amount paid with interest. The trial Court decreed the suit for RS. 26,000 plus interest at the rate of 6 per cent, which amounted to a sum of Rs. 18,700. The defendant denied all liability for interest. The High Court, on appeal, reduced the rate of interest from 6 to 4 per cent, which brought down the sum from Rs. 18,700 to Rs. 12,380 i.e. the variation in the decree was in favour of the defendant-The defendant wanted leave for appeal to. His Majesty in Council under Section 110, Civil P.C. It was conceded that there was No. substantial question of law. The learned Judges, on an interpretation of Annapunrnabai v. Ruprao ('25) 12 A.I.R. 1925 P.C. 60 granted leave. It is significant that they expressly overruled the decisions in Wiqar Ali Khan v. Narain Das ('39) 26 A.I.R. 1939 All. 322 and Sri Narain Khanna v. Secy. of State ('39) 26 A.I.R. 1939 All. 723. An examination of these two cases is necessary.

6. In Wiqar Ali Khan v. Narain Das ('39) 26 A.I.R. 1939 All. 322 the facts were these : Narain Das brought a suit for enforcement of a mortgage against one Nanabhoy, the executant, and Wiqar Ali Khan, as the administrator of the estate. The suit was decreed by the trial Court. Wiqar Ali Khan appealed to the High Court and the main question was whether the mortgage was-valid. The High Court held that the mortgage was valid, but the amount of interest, was reduced from 15 per cent, to 12 per cent, in favour of the appellant. The decree was,, therefore, varied in favour of the appellant, but the amount of variation was less than Rs. 10,000. Wiqar Ali applied for leave to appeal to His Majesty in Council on the strength of Annapurnabai v. Ruprao ('25) 12 A.I.R. 1925 P.C. 60. Bennet and Verma JJ. refused leave on the ground that, the variation affected the amount of the decree not to the extent of Rs. 10,000 but. much less, and also on the ground that the variation was in favour of the defendant. For the latter proposition they relied upon the case in Kamal Nath v. Bithal Das ('22) 9 A.I.R. 1922 All. 89. They distinguished the case of Annapurnabai on the ground that:

Now it is to be noted that the special leave to appeal was limited to the question of maintenance. Learned Counsel argues that this limitation was imposed solely at the request of counsel for the applicants. We do not think that this can be deduced from the ruling. It appears to us that their Lordships imposed this restriction because they considered that it should be imposed. The case, therefore, is no authority for the present application in which the applicant desires to raise a question on which there have been concurrent findings by the two Courts. Moreover, in the present case, the question of interest is not of sufficient value to amount to Rs. 10,000 and therefore leave to appeal on the question of interest alone could not be granted.

7. They rejected the contention of the learned Counsel for the applicant that their Lordships confined leave to the question of maintenance only owing to a statement by Sir George Lowndes, the counsel for Annapurnabai. The case in Sri Narain Khanna v. Secy. of State ('39) 26 A.I.R. 1939 All. 723 was like this : On an application by him under the Land Acquisition Act, the District Judge granted Sri Narain Khanna Rs. 26,238. He appealed to the High Court, which increased the amount by Rs. 9902 and allowed interest. He made an application for leave to appeal to His Majesty in Council. It was conceded by the opposite party that the amount claimed by Sri Narain Khanna before the District Judge, in the High Court and in the proposed appeal to the Privy Council was over Rs. 10,000. Bennet and Verma JJ., who also constituted the Bench hearing the first appeal, followed their decision in Wiqar Ali Khan v. Narain Das ('39) 26 A.I.R. 1939 All. 322 and refused to grant leave on the ground that they had affirmed the decision of the District Judge so far as the sum of Rs. 26,288 was concerned and that the variation was in favour of the appellant. Both these rulings were overruled by the Full Bench. Dealing with them and with 51 Cal. 969,3 Sir John Thom summed up the opinion of the Full Bench in these terms:

(a) The value of the question in issue, namely, the question as to interest, was below Rs. 10,000. In that respect, therefore, the case is to be distinguished from the case in Wiqar Ali Khan v. Narain Das ('39) 26 A.I.R. 1939 All. 322. We do not agree, however, with the observation that in the case before the Privy Council the Board imposed restriction as to the appeal because they considered that it should be imposed. Whether the Privy Council imposed the restriction because it should be imposed or whether they imposed it because counsel for the applicant had intimated that he proposed to restrict the appeal to the question of maintenance is not at all clear from the terms of the judgment of the Board.

(b) The latter case in Sri Narain Kanna v. Secy. of State ('39) 26 A.I.R. 1939 All. 723 clearly supports the contention of the respondent... we find it impossible to reconcile this decision with the decision of the Privy Council in Wiqar Ali Khan v. Narain Das ('39) 26 A.I.R. 1939 All. 322. On the principle of the Privy Council decision, in our judgment an appeal did lie to the Privy Council. The decision of this Court, therefore, in Sri Narain Kanna v. Secy. of State ('39) 26 A.I.R. 1939 All. 723 can no longer be considered to be good law.

8. The Full Bench decision, therefore, is authority for the proposition that once a decree is varied, even though the variation may be in his favour, the applicant is entitled to leave as of right. We might notice a few of the authorities decided after this Full Bench. Soon after the decision in Jaggo Bai v. Harihar Prasad Singh ('41) 28 A.I.R. 1941 All. 66, a Full Bench of the Patna, High Court in Brajasunder Deb v. Rajaendra Narayan ('41) 28 A.I.R. 1941 Pat. 459 had to consider a similar point. The learned Judges agreed with Sir John Thom. Its facts were these:

The plaintiffs brought a suit for a declaration that they were the owners of certain lands in three villages set out in four schedules to the plaint and for confirmation of possession. In the alternative, it was prayed that, if it was found that the plaintiff's were not in possession, they should be given possession of the lands in question. The defendant by his defence denied that the plaintiffs were entitled to any relief and claimed that the lands in question belonged to him by reason of adverse possession over a long period of time. The trial Court dismissed the claim. On appeal, the High Court decreed it with regard to one village, Olaver, but affirmed the decree with regard to the other villages, Balarampur and Jagulaipara, though on different grounds. On an application for leave to appeal to His Majesty in Council the learned Judges granted leave to the plaintiffs, although the variation was in their favour. They also made it clear that the defendant was entitled to appeal against the decree as a whole, i.e., even as regards the two villages with respect to which the judgments of the High Court and the trial Court were concurrent. Say they:

In the present case the proposed appellants have to appeal against the decree as a whole, and they will have a right to do so if that decree as a whole does not affirm the decision of the Court below. The appeal is not confined to such part of the decree as affirms a part of the decision of the Court below but is preferred against the decree as a whole. Clearly the decree as a whole does not affirm the decision of the Court below taken as a whole, and that being so, the appellants, in my view, are entitled to appeal as of right without showing that a substantial question of law is involved.

9. We might also mention that a Bench of this Court, Sir Shah Sulaiman and Bachhpal Singh, J. had in P.C. A. No. 33 of 1934, taken a similar view on this question. The claim was valued at a lac of rupees and the decision of this Court was one affirming the decision of the trial Court, with a very slight veriation as regards the nature of the relief affecting a very small property, nevertheless leave was granted. It might be mentioned that the Judicial Commissioner's Court at Peshawar in Saran Singh v. Dwarka Nath ('43) 30 A.I.R. 1943 Pesh. 45 has taken a similar view. We now come to the two Lahore authorities. The first case is Brahma Nand v. Sanatan Dharam Sabha ('44) 31 A.I.R. 1944 Lah. 329. Its facts were these. The plaintiff brought a suit under Section 92, on the allegation that the trust was a public trust and prayed for the removal of the defendant from the trusteeship and for accounts. The main defence was that the trust was not a public trust. The trial Court held that it was a public trust and decreed the suit. It also made a preliminary decree directing accounts to be taken in respect of the income and expenditure of the land in suit for a certain period. The District Judge dismissed the defendant's appeal. Before the High Court, in second appeal, the plaintiff-respondents, with a view to cut short the controversy, abandoned the relief in respect of accounts, but contested it on the remaining issue. The High Court maintained the concurrent findings of the Courts below as regards the nature of the property and dismissed the appeal. The defendant wanted to go in appeal to His Majesty in Council on the main question. The learned Judges refused to give leave. The other case is Sh. Wahid-ud-din v. Makhan Lal ('44) 31 A.I.R. 1944 Lah. 458. Its facts were these : In execution of a decree against Wahid-ud-din, eight items of property were sold in different lots for a sum of Rs. 42,000, on 1st December 1941. Two of the items were purchased by the decree-holders themselves and the remaining six by outsiders. Wahid-ud-din moved the execution Court under Order 21, Rule 90, Civil P.C., but his objections were disallowed and the sales were confirmed on 26th May 1942. He went in appeal before the High Court. Abdul Rashid J. set aside the sale of three items, but affirmed it with respect to the remaining five. On Letters Patent appeal this judgment was affirmed. He then made an application for leave to appeal to His Majesty in Council. The learned Judges refused leave on the ground that For the purposes of Section 110 a decree or order to be appealed from, where it partly maintains the decision of the Court immediately below and partly reverses, it is deemed to be one of affirmance when the subject-matter of the appeal to His Majesty in Council is confined only to that part of the decree or order which affirms the decision of the Court below on that matter.

10. It is to be seen that this is inconsistent with Jaggo Bai v. Harihar Prasad Singh ('41) 28 A.I.R. 1941 All. 66 and also with the Patna Full Bench Brajasunder Deb v. Rajaendra Narayan ('41) 28 A.I.R. 1941 Pat. 269. One of the reasons assigned by the learned Judges was that the finding of a Court upon each issue amounted ,to a decision and for this view they took their stand upon Order 20, Rules 4 and 5, Civil P.C. This, in our opinion, is a wholly erroneous view. It was held so far back as the year 1902 by their Lordships of the Judicial Committee in Tassaduq Rasul Khan v. Kashi Ram ('03) 25 All. 109, that the word 'decision' in Section 596, Civil P.C., means merely the decision of the suit by the Court, and cannot, like the word 'judgment' be defined as meaning the statement of the grounds on which the Court proceed to make the decree. In order to 'affirm the decision of the Court below' within the meaning of that section it is sufficient for the appellate Court to affirm the decree; it need not also affirm the grounds of fact on which the judgment was passed. Section 596 corresponded to Section 110, Civil P.C. Their Lordships have made this point still clearer in a comparatively recent case JOWAD Hussain v. Gendan singh ('26) 13 A.I.R. 1926 P.C. 93 at page 766:

The appellant's counsel strenuously urged that the appeal was not against the decree, but only against the items in the decree. This is a complete misunderstanding. An appeal must be against a decree as pronounced. It may be rested on an argument directed to special items, but the appeal itself must be against the decree, and the decree alone.

11. Harries C.J. delivering the judgment of the Pull Bench in Brajasunder Deb v. Rajendra Narayan ('41) 28 A.I.R. 1941 Pat 269, has dealt with this question. Says he at p. 276:

... in my judgment the true test is whether the decision of the Court below as a whole has been affirmed by the High Court and not whether the decision on the point or points left in dispute have been affirmed by the High Court... There is only a decision, and in my view the word 'decision' means the decision of the trial Court taken as a whole. It must be remembered that an appeal is not preferred against any item or items in a decree. The appeal must be preferred against the whole decree, though for the purposes of valuation the subject-matter in dispute in appeal only is valued... In the present case the proposed appellants have to appeal against the decree as a whole, and they will have a right to do so if that decree as a whole does not affirm the decision of the Court below.

12. We think that the view taken by Sir Arthur Harries is, if we may say so with respect, in accord with the view of their Lordships of the Privy Council and the view taken by the learned Judges of the Lahore High Court, if we may again say so with great respect, militates against it. There is an observation in the judgment of Din Mohammad J. in Brahma Nand v. Sanatan Dharam Sabha ('44) 31 A.I.R. 1944 Lah. 329 against which we feel we must enter our dissent. The question as to what their Lordships really intended to lay down in Annapurnabai v. Ruprao ('25) 12 A.I.R. 1925 P.C. 60 says the learned Judge, is not easy to answer. He felt that he could act upon his own judgment and disagreed with those learned Judges who had granted leave on the strength of Annapurnabai v. Ruprao ('25) 12 A.I.R. 1925 P.C. 60 on the ground that "the refusal of leave in such cases is more reasonable than its grant." An appeal is a valuable right and a party is, unless there are insuperable barriers in the way, entitled to have the benefit of the mature and considered judgment of the highest judicial tribunal in the realm. We think that this case fulfils the requirements of Section 110, Civil P.C., and the applicant is entitled to a certificate from us and we so certify.