Judgement

KAPUR, J. - Tej Kishen, petitioner on his own behalf and on behalf of the other shareholders of the Delhi Cloth and General Mills Co., Ltd., acting under O.1, R.8, Civil P.C. brought on 27th July 1942 a suit which he valued at Rs.260 for purposes of jurisdiction and court fees and claimed the following reliefs: (a) For declaration that the appointment of defendants 15 to 19 as Managing Agents of the Delhi Cloth and General Mills Company, Limited is illegal and ultra vires of defendant 1 (the company) and in contravention of the Articles of Association. (b) That the agreement of 9th January 1937, or some such date may be declared to be void and may be cancelled. In other words, the suit was for a declaration with a consequential relief. In the plaint as filed there were 49 defendants. The suit was decreed by the Subordinate Judge, 1st Class, Delhi on 13th December 1943. Against this decree five appeals were filed. Three appeals were by the Managing Agents in the Court of the Senior Subordinate Judge, Delhi, one was filed in the District Judges Court at Delhi and the 5th one was filed by Sher Singh in the Lahore High Court being Regular First Appeal No.93 of 1944. This was valued for purposes of jurisdiction at Rupees ten millions and for purposes of court fees at Rs.250 and the amount of court-fee paid was Rs.20. The other four appeals which had been filed in other Courts were also transferred to the High Court.

2. The appeals were heard by a Bench of this Court consisting of Teja Singh and Khosla, JJ. and the main judgment was written in Regular First Appeal No.87 of 1944. The other appeals were Nos.93, 203, 204 and 205 of 1941. Only one decree was drawn up but in that decree numbers of all the appeals were shown. The High Court allowed the appeals and reversed the judgment of the trial Court. Khosla, J. held that neither fraud nor collusion had been proved and that the plaintiffs had no locus standi to bring the suit. Teja Singh, J. gave a concurrent judgment and he also held that the plaintiffs had no locus standi to sue. This judgment is dated 15th July 1948.

3. Tej Kishen on 27th October 1948, filed in this Court a petition for leave to appeal to the Federal Court under S.109 and S.110 and O.45, Rr.2 and 3, Civil P.C. In the heading of the application he described the parties as follows:

"The Delhi Cloth and General Mills Co Ltd., and others - Defendants - Appellants v. Pandit Tej Kishen and others - Plaintiffs-Respondents."

On 29th October 1948 the office pointed out the following defects in the application

"(1) In this connection reference is invited to Rule 1(a) and (b) of Chap. 8A, High Court Rules and Orders, Vol. V under which the learned counsel is required to give the name and address of each petitioner and also those of each person whom it is proposed to make a respondent. Full parties names have not been given in the petition.

(2) The petitioner who is seeking permission to appeal to the Federal Court is Tej Kishen while in the heading of the petition the parties names are as follows: The Delhi Cloth and General Mills Co., Ltd. v. Pt. Tej Kishen and others. This is quite the reverse."

This petition was returned to the learned counsel with the report of the office on 2nd November 1948 and was refiled by the petitioner on 8th November 1949 in which the learned Advocate Mr. Mela Ram said that he was filing a separate memo of parties with the "heading of the petition corrected." Along with this he put in a memo of parties in which he described Tej Kishen as petitioning on his own behalf and on behalf of the other shareholders of the Delhi Cloth and General Mills Company, Limited and he gave the names of 49 respondents. In the corrected heading of names in the petition he gave the following description: "Pandit Tej Kishen - Plaintiff-Petitioner - Appellant v. The Delhi Cloth and General Mills Co., Limited and others - Respondents."

4. At the hearing of the petition a preliminary objection was taken that the petition was barred by time on the day it was filed, at any rate, on the day it was refiled, because the filing in the first instance was not proper as it did not give the names of the parties as required under the rules. In order to understand the preliminary objection it is necessary to give certain details. The judgment of the Court was pronounced on 15th July 1948 and an application marked at No.206 was made for a certified copy of the judgment and this application is dated 14th August 1948. The decree was ready for delivery on 1st September 1948, and we are told that the judgment was also ready on the same day. The date of delivery on the certified copy of the decree is shown as 6th September 1948 and we are told that this was sent by post. The petitioner has not filed any affidavit showing as to whether he had given any instructions for the certified copies of the judgment and the decree-sheet to be sent to him by post. Only the learned Advocate for the petitioner has told us that this was received by his client by post. In order to find out these facts, we called for the original records from the Copying Branch. The original application does not show that any request had been made by the petitioner for a copy of the decree-sheet to be supplied to him.The only requirement of the petitioner as shown in that application was for a certified copy of the judgment. It has not been shown that any application had been made for a copy of the decree prepared in this Court. If it is held that there was no application for the copy of the decree then according to the submission of the learned Advocate for the respondents no time can be allowed at all under S.12, Limitation Act. But, even if, so contended the learned Advocate, the decree was applied for, the time which can be allowed to him should be from 14th August 1948 to 1st September 1948 which would make 19 days. He went further and said that even if another 5 days were allowed taking the date to be the date of delivery, i.e., 6th September 1948 the petition would still be barred by time because according to the learned Advocate the application should be considered to have been properly filed on 8th November 1948.

5. The points which then require to be decided are: (1) was the application properly filed in this Court (2) what is the number of days which can be held to be time requisite in the present case? and (3) whether any time at all can be allowed to the petitioner under S.12 (2), Limitation Act.

6. Section 12(2) says:

"In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (3) "Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded."

The submission of the respondents advocate was that time which the petitioner took in obtaining a copy of the decree is the only period which can be excluded under the provisions of S.12 and the time taken for obtaining a judgment cannot be excluded. But, before this question of S.12 is decided the point which requires to be determined is when is the petition to be taken to have been properly filed in this Court. Rule (1) of chap.8A of the Rules and Orders of this Court, Vol. V, which contains the rules framed for appeals to His Majesty-in-Council requires: (a) the name and address of each petitioner. (b) the name and address of each person whom it is proposed to make a respondent, and four other requirements are mentioned which are not relevant for the purpose of this decision. Chapter 9 contains the rules framed by the High Court for appeals to the Federal Court and it runs as follows:

"An application for leave to appeal to the Federal Court shall comply with the requirements of R.3(1), O.45, Civil P.C., and contain the following particulars:

(a) the name and address of each applicant;

(b) the name and address of each person whom it is proposed to make a respondent."

and the same other four requirements are mentioned which I need not refer to. One fact to be noticed is that R.1 (a) and (b) of the rules framed for appeals to the Federal Court are in the same terms as rules framed for appeals to His Majesty-in-Council and, therefore, for purposes of argument there is no difference in the two cases. These rules have been framed under the Government of India Act, the Letters Patent and the Acts of the Indian Legislature as is shown on p.1 of Vol. V. Indeed, on the cover also this is mentioned. Power to frame rules for regulating the procedure in the High Court is conferred by cl.27, Letters Patent of the Lahore High Court which apply to the East Punjab High Court and the relevant portion is in the following words:

"And we do further ordain that it shall be lawful for the High Court of Judicature at Lahore from time to time to make rules and orders for regulating the practice of the Court"

In S.223, Constitution Act, it is provided:

"Subject to the provisions of this part of the Act, to the provisions of any Order in Council made under this or any other Act.. .. the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court . . shall be the same as immediately before the establishment of the Dominion." The rules mentioned in chap. 8A and chap. 9 for appeals to His Majesty-in-Council and to the Federal Court having been framed under the Letters Patent and the Government of India Act, would be rules made under a statute having the force of law and according to these rules it is obligatory on a petitioner to give the name of the persons petitioning as also the names and other particulars of the persons who are said to be made respondents in the petition and, my opinion is that if a person is not named in the array of parties on the respondents side he cannot be considered to be a respondent, and in the present case the description of the parties as given on 27th October 1948 being merely "the Delhi Cloth and General Mills Co, Ltd. and others - Defendants - Appellants v. Pandit Tej Kishen and others - Plaintiffs - Respondents" would not be a compliance with the rules.

7. The learned Advocate for the petitioner submitted that the rules contained in chaps. 8A and 9 were rules of procedure and even though they may have been made under the Letters Patent they have no statutory authority and at any rate they are more in the nature of byelaws than anything else and should not affect his rights in regard to limitation. He strongly relied on the minority judgment in Bharat Insurance Co., Ltd. v. Peoples Bank of Northern India, Ltd, AIR (23) 1936 Lah. 322: (165 I.C. 568), where Tek Chand, J., observed:

"The rules in this Chap. (8A), however, have no statutory force. They are by no means mandatory but are merely directory and may be modified according to the exigencies of each case. In any case, non-compliance with them is not such defect as would be fatal to the maintainability of the petition."

Two other learned Judges, who were members of the Full Bench, Young, C.J., and Addison, J., held the opposite view and they were of the opinion that in appeals to His Majesty-in-Council the petitioners have not only to comply with the requirements of O.46, R.3(1), Civil P.C. but also with those contained in Chap. 8A of the Rules and Orders, Vol. V and therefore, each person who is sought to be made a respondent ought to be named in the petition. But, in a later Full Bench judgment of the Lahore High Court which was decided by five Judges reported as Punjab Co-operative Bank Ltd., Lahore v. Punjab Cotton Press Co., Ltd., I.L.R. (1941) Lah. 191: (AIR (28) 1941 Lah. 257 F.B.), in which the question directly involved was whether "time requisite" for obtaining copy of a judgment appealed against under S.202, Companies Act could be considered "time requisite" within the meaning of S.12, Limitation Act, it was held that the rules contained in the Rules and Orders, Vol. V, are statutory rules and have the same binding force as an enactment of the Legislature itself. The argument of bye-laws was submitted in that case also and it was observed by Tek Chand, J., with which the other learned Judges agreed as follows:

"They, as well as bye-laws, rules and regulations promulgated or enacted by proper authority under the power conferred by the Act of the Legislature are instances of delegated legislation and are as much a part of the law as enactment passed by the Legislature itself. And where any of such ordinances, bye-laws, rules or regulations, deal with a particular subject they are a special law."

In Willingale v. Norris, (1909) 1 K.B. 57: (78 L.J.H.B. 69), Lord Alverstone, C.J. observed:

"Where a statute enables an authority to make regulations, a regulation made under the Act becomes for the purpose of obedience or disobedience a provision of the Act. The regulation is only the machinery which Parliament has determined whether certain things shall or shall not be done."

There are observations of other learned Judges which may be quoted here.

8. In Hopkins v. Mayor of Swansea, (1839-41) 8 L.J.Ex. 121: (51 R.R. 739) Lord Abinger C.B. observed:

"A bye-law, regularly made by a corporate body under its charter, has the same effect within its limits, and with respect to the persons upon whom it lawfully operates, as an Act of Parliament has upon the subjects at large."

In Gosling v. Veley, (1817) 7 Q.B. 406 at p.451: (68 R.R. 488), similar observations have been made and in Kruse v. Johnson, (1898) 2 Q.B. 91:(67 L.J.Q.B. 782), Lord Chief Justice Russel said:

"A bye-law. .. I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers, ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation, as to acts which but for the bye-law, they would be free to do or not to do so as they pleased. Further, it involves this consequence, that, if validly made, it has the force of law within the sphere of its legitimate operation."

All these cases show that whenever any rules are made by an authority under the rule-making power conferred by a statute the rules so made have the same force as the statute itself. That being the position the rules contained in chaps. 8A and 9 of the Rules and Orders, Vol. V, are statutory rules and have the force of law, and therefore it was in my opinion, necessary for the petitioner to give the names and addresses of all persons whom he wanted to make respondents and until those names were given the application made by him cannot be considered to be an application made in accordance with law and, therefore, the application would be considered a proper one when on 8th November 1948 the names and addresses of respondents were furnished by Mr. Mela Ram. For the purposes of limitation then, that will be the date on which the application was filed.

9. The petitioner submitted that he was entitled to the time spent which should be considered as requisite in obtaining a copy of the decree against which he was appealing to the Federal Court and for this purpose he claimed that he was entitled to deduct the days requisite which are according to him from 14th August 1948 to 6th September 1948, at any rate, up to 1st September 1948 and he relied on S.18 (2), Limitation Act. In answer to this submission, the learned advocate for the respondents contended that no time can be given to him under S.12 (2) because he never made an application for a copy of the decree. A certified copy of the application for obtaining a copy was produced before us by the learned advocate for the respondents. We, as I have said before, also sent for the original record of the Courts and it appears that no application was made for obtaining a copy of the decree. The application contains a prayer for a copy of the judgment only. In these circumstances the petitioner is not entitled (even though he has obtained a copy of the decree) to deduct the days spent in obtaining the copy of the decree. The petitioner made two submissions with regard to this matter, (1) That he had obtained a copy of the decree-sheet which must be in pursuance of a proper application and (2) at any rate, he would be entitled to get time spent in getting a copy of the judgment because without the judgment he could not possibly have framed a proper application or drawn up his grounds of appeal. He went a little further and submitted that not only was he entitled to deduct the time taken is obtaining a certified copy of the decree-sheet which admittedly he has obtained but he was also entitled to deduct the time which was taken in the preparation of the decree.

10. In my judgment there is no force in the first submission of the learned advocate. He never applied for a copy, and I do not see how he can be allowed to deduct time spent in obtaining that copy of the decree for which no proper application was made and even if there is any mistake with regard to the application made or in fact did make an application not now forthcoming from the record, at the most he can be given time from 14th August to 1st September 1948. I cannot see under what provision he can be given time spent on the preparation of the decree-sheet. In my judgment no period can be regarded as time requisite which is not subsequent to the presentation of an application for a copy and a time requisite for obtaining copies could not include any period antecedent to the appellants applying for copies in accordance with law.

11. In Bechi v. Ahsan Ullah Khan, 12 ALL. 461: (1890 A.W.N. 149 F.B.), it was held that in computing the time to be excluded under S.12, Limitation Act, from a period of limitation, the "time requisite for obtaining a copy" does not begin until an application for copies has been made and, therefore, the period during which a decree remains unsigned was not allowed to be excluded from the period of limitation as no application for copies was made before that date.

12. In Subramanyam v. Narasimham, 43 Mad. 640: (AIR (7) 1920 Mad. 369), the defendant was not allowed the period of Christmas vacation which intervened between the date the judgment was delivered and the date on which he applied for copies. Time requisite, in my opinion, begins when the application for copy is made to the proper official and ends when the copy is ready for delivery and any period outside these two limits cannot be allowed under S.12. The petitioners learned advocate relied on several cases in which it was held that the time expended in the preparation of a decree sheet should be allowed to be excluded and the respondents also relied on several other cases. In my opinion, the better view seems to be that this period cannot be deducted.

13. The other submission of the petitioner that he should be allowed to deduct time taken in obtaining a copy of the judgment also seems to be without any force. Under S. 12(2) the "time requisite" for obtaining a copy of the decree can be excluded. In computing the period of limitation prescribed for an application for leave to appeal only the time requisite for a decree can be deducted and time taken in obtaining a copy of the judgment can only be excluded under S.12(3) which says:

"Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded."

Sub-section (2) of S.12 is, however, a specific provision which deals with applications for leave to appeal and in my judgment the time taken in obtaining a copy of the judgment cannot be excluded. But, the petitioner relied on J.N. Surty v. T.S. Chettyar Firm, 6 Rang. 302 (AIR (15) 1928 P.C. 103), whore it was observed by Lord Phillimore at p.313:

"If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt, when the case does not come from upcountry, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the legislature may not wish him to hurry to make a decision till he has well considered it."

Now that was a case which was an appeal from the judgment of the Rangoon High Court where they had refused to exclude the time taken by the appellant in obtaining a copy of the judgment in an appeal against a judgment on the original side, That case does not deal with a matter in the nature of an application for leave to appeal to the Federal Court. Indeed the Lahore High Court also in the case referred to above Punjab Co-operative Bank Ltd., Lahore v. Punjab Cotton Press Co. Ltd., ( I.L.R. (1941) Lah. 191: AIR (28) 1941 Lah. 257 F.B.), held that time taken in obtaining a copy of the judgment should be excluded. Their Lordships of the Privy Council were not dealing with an application for leave to appeal to the Privy Council which is specifically provided for in Sub-S. (2) of S.12. In my opinion, therefore, the petitioner is not entitled to deduct any time expended on his obtaining a copy of the judgment.

14. In support of his contention the learned Advocate for the respondent relied on Punjab Co-operative Bank Ltd. Amritsar v. Punjab National Bank Ltd., Amritsar, AIR (26) 1939 Lah. 43: (I.L.R. (1939) Lah. 156), where a Division Bench of the Lahore High Court held that in computing the period of limitation for an application for leave to appeal the time requisite for obtaining a copy of the judgment cannot be excluded. The same was the view of the Allahabad High Court in Wilayati Begum v. Firm Jhandu Mal Mithu Lal, AIR (13) 1926 ALL. 286: (92 I.C. 897), where it was held that S.12 (3), Limitation Act does not apply to the case of an application for leave to appeal to his Majesty-in-Council.

15. In Gulab Chand v. Pearey Lal, 57 ALL. 455: (AIR (22) 1935 ALL. 99) and in Gaekwar of Baroda State Railway v. Muhammad Habib Ullah, 57 ALL. 751: (AIR (22) 1935 ALL. 258), the time spent in obtaining a copy of the decree was allowed to be excluded and in both these cases the time expended on getting a copy of the judgment was not held to be relevant.

16. In Hari Ram v. Pram Nath, AIR (22) 1935 Lah. 341: (158 I.C. 120). a Division Bench of the Lahore High Court held that S.12, Limitation Act has no application to the period between the delivery of judgment and signing of the decree.

17. The rule deducible from the above cases is that in the first place, the petitioner is not entitled to get any time expended in getting a copy of the decree which he did not apply for, and he cannot get any time spent in obtaining a copy of the judgment. Even if he could be allowed any time he would be allowed to deduct the time expended in obtaining a copy of the decree alone which can only be up to 1st September 1948. He is not entitled to get any time during which he did not take delivery or any time which was spent on the preparation of the decree-sheet. Indeed, on this last point a Division Bench of the Lahore High Court consisting of Mahajan and Teja Singh, JJ., in Abdul Salam v. Abdul Khaliq, AIR (32) 1945 Lah. 233: (47 P.L.R. 193), held that the time between the date of the judgment and the date the decree was signed could not be allowed to be deducted under S.12, Limitation Act as "time requisite" for obtaining copy of the decree and Bani Madhub v. Matungini Dassi, 13 Cal. 104 (F.B.) which was so strongly relied upon by the learned Advocate for the petitioner was referred to by the learned Judges but was not followed, The application is, therefore, barred by time.

18. The next question to be determined is whether under S.110, Civil P.C., the value of the subject-matter was such that leave can be granted, the judgment being one of reversal. Under part 1 of the section what is required is that the value of the subject-matter of the suit in the Court of first instance must be Rs.10, 000 or more and so also for appeal to His Majesty-in-Council and in the second part it is said that decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value. The suit was valued at Rs.260 and the relief claimed was (a) for declaration that the appointment of Firm Shankar Lal Bharat Ram and company as Managing Agents was ultra vires and in contravention of the articles of association and (b) that the agreement of 9th January 1937 be cancelled. In para. 9 of the plaint it was stated that the defendants had been withdrawing huge sums every year as their remuneration to the detriment of the interest of defendant 1 and its shareholders. In spite of all this he valued his claim at Rs.260. It cannot be said that the value of the subject-matter of the suit was anything more and, therefore, the first part of S.110 in my opinion, cannot be applicable.

19. In Rattaya v. Brahmayya, AIR (12) 1925 Mad. 1223: (91 I.C. 572), in a suit for setting aside an adoption and an alienation the value of all the properties was described as less than Rs.10, 000 and leave for appeal to the Privy Council was prayed for, it was held that the plaintiffs were bound by the value which they had put on the plaint.

20. In Rameshwar Khemka v. Siddeshwar Ghosh, AIR (14) 1927 Cal. 418: (101 I.C. 901), the plaintiffs valued their suit at less than Rs.10, 000 and the defendant acquiesced in that valuation and when the defendants applied for leave to appeal to His Majesty-in-Council and prayed for a report being asked under O.45, R.5 contending that the subject-matter was more than Rs.10,000 it was held that no enquiry should be made and that the party was bound by the valuation put. That was a suit brought by the plaintiffs to establish their title to recover possession of certain plots of land and the value put was Rs.872 and that remained to be the value.

21. In Krishna Mohan v. Purshotam Das, AIR (26) 1939 ALL 695: (185 I.C. 690), it was held that an applicant for leave to appeal to His Mageety-in-Council has not got any right to allege that the valuation for jurisdiction which he put on his plaint in the trial Court was too low and that he should be allowed to enhance the valuation for the purpose of leave to appeal to the Privy Council. In that case, the jurisdictional value had been fixed at Rs.9, 000 and according to the rules the value for purposes of court-fee was fixed at Rs.5,000 and odd. At the time of leave to appeal to His Majesty-in-Council the applicant submitted that the real value was more than Rs.10,000 and it was said by the learned Judges:

"We are also not satisfied that an applicant before this Court has got any right to come to this Court in the present manner and allege that the valuation for jurisdiction which he put on his plaint in the trial Court was too low and that he should now be allowed to enhance the valuation for the purpose of S.110, Civil P.C.."

22. The question then arises whether the case will be covered by the second clause which says that the decree or final order must involve, directly or indirectly, some claim respecting property of Rs.10, 000. In this matter also in my opinion, it is the detriment to the petitioner which governs the valuation. The learned Advocate appearing for the petitioner has not cited any ruling which would go to show that he can now change his valuation and show that the subject-matter of the suit is Rs.10, 000 or more.

23. In Gnanamanikkam Ammal v. S.R. Samson, 9 Rang. 52: (AIR (18) 1931 Rang. 138), it was held that to determine the value prescribed by S.110, Civil P.C., the Court has to consider what is the detriment to the person seeking to appeal to the Privy Council, and if that is less than Rs.10, 000 then, whatever may be value of the property in suit the case does not fulfill the requirements of the section. In that case the decree based on an award passed by a Court in Madras had been transferred to a Court in Burma for execution and the petitioner in that case had applied for execution of the decree to the extent of her share in certain property awarded to her under the execution proceedings. Her value was stated to be Rs.7, 300 and odd and in that case the petitioner was not allowed to say that the value was more than. Rs.10,000.

24. In Galliara v. H.M. Marugappa Chetti, AIR (21) 1934 Rang. 292: (12 Rang. 355), where the case related to a petition for insolvency it was held that under S.110, Civil P.C., it is the extent to which the decree or order has operated to the prejudice of the applicant that determines whether the decree or order is subject to appeal or not, and whatever may be the value of the property in respect of which a claim or question is involved in the appeal no appeal lies under S.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 and the case will not be covered by cl.(2) of S.110.

25. In Subramania Ayyar v. Sellammal, 39 Mad. 843: (AIR (3) 1916 Mad. 985), the amount of the subject-matter of the suit in the Court of first instance was Rs.10,000 but the amount or value of the subject-matter in suit in appeal to His Majesty-in-Council exceeded that sum owing to the addition of the claim for mesne profits. It was held that the case did not satisfy the provision of either para 1 or para 2 of S.110, Civil P.C. It was held by Wallis, C.J., that the words "involved directly" contained in pare 2 of S.110 of the Code, cannot be read as including cases which involve nothing but the actual subject-matter in dispute in the appeal. This decision was approved of by their Lordships of the Privy Council in Manganna v. Mahalakshmamma, 53 Mad. 167: (AIR (17) 1930 P.C. 44).

26. In Shevantibai v. Janardhan Raghunath, AIR (31) 1944 P.C. 65: (I.L.R. (1944) Kar. P.C. 235), the plaintiff was an assignee from a purchaser of a share of a Hindu joint family property and he brought a suit for partition of the property to have his one-sixth share allotted to him valuing his claim at about Rs.3, 000 but the total value of the joint family property exceeded Rs.10 000. His suit was dismissed both by the trial Court as well as by the High Court and when he applied for leave to appeal to His Majesty-in-Council the application was dismissed on the ground that the share of the plaintiff in the property of which he sought partition was less than Rs.10,000. The subject-matter of the appeal was thus below the minimum required under S.110. The petitioner then applied for special leave to appeal and argued that the decree in the case involved directly or indirectly a question involving the whole of the joint family property, admittedly exceeding Rs.10, 000. It was held by their Lordships of the Privy Council that the High Court had rightly refused to give a certificate.Lord Clauson observed:

"Their Lordships are satisfied that the appellate Court were correct in holding that the value of the subject-matter in dispute on appeal to His Majesty-in-Council must be taken to be the value of the share of the joint family property in respect of which the appellant is claiming, and indeed this view was not disputed before their Lordships Board."

And in regard to the argument for refusal to partition on the ground that the claim of the petitioner was barred by the law of limitation "involves directly or indirectly some claim or question to or respecting" the joint family property as a whole, their Lordships said:

"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 being partitioned."

Another set of cases which deals with this matter are those which lay down that according to the correct meaning of S.110, what has to be decided is with reference to actual circumstances at the time and not to circumstances which are remote and not in particular to a mere possibility that future suits as to all or any part of the larger extent of the property worth Rs.10, 000 or more alleged to be concerned may be instituted at some future date.

27. In Kumar Chandra Singh v. Gobinda Sas, 42 C.W.N. 298, the observations of Oldfield, C.J. in Alagappa Chetty v. Nachiappan, 43 M.L.J. 728: (AIR (10) 1923 Mad. 125) were relied upon where it is said:

"The ground of the decision in those cases was that the question whether a decree involves indirectly a claim or question within the meaning of the section must be decided with reference to actual circumstances at the time and not to circumstances, which are remote, and not in particular to a mere possibility, that future suits as to all or part of the larger extent of the property alleged to be concerned may be instituted at some time in the future."

Costello, A.C.J., in that case went on to observe:

"It may very well be that the reversioners may have some ideas of trying later on to recover the Rs.16, 550 properties. That is however a bare possibility and not one which is really raised in the present proceedings."

Applying that case to the facts of the present case, it is possible that if the present suit of the plaintiff be decreed the plaintiff may be able to bring at some future date a suit for recovery of a sum which may or may not be more than Rs.10,000 but the possibility may be remote and, therefore, in the present application at any rate the second part of S.110 will not be applicable.

28. Similarly, in Udoychand Pannalal v. P.E. Guzdar and Co., 52 Cal. 650: (AIR(12) 1925 P.C. 159) upon a dispute as to a contract for the sale of the goods the arbitrators awarded Rs.81.000 to the petitioner and Rs.3,900 to the respondents. The award in favour of the petitioner having been set aside, he brought a suit to set the award in favour of the respondents also. The appellate Court in India dismissed the suit and refused to give leave to appeal and the petitioner applied for special leave to appeal and contended that he had a right of appeal because if the appeal succeeded he could proceed with a suit which had been stayed, claiming Rs.81,000 damages under the contract Lord Dunedin delivering the judgment of the Board said at page 651:

"Their Lordships are not inclined to attempt any precise definition of the word property. The Civil P.C. has not done so, and any definition might not be found in the future precisely to fit the circumstances which the kaleidoscope of actual experience may produce. But they think that the present is not a case where the issue of this suit can be said directly or in indirectly to involve other property."

29. After considering all these cases, I am of the opinion that (1) the subject-matter of the suit in the Court of the first instance was Rs.260 and it must be the same as far as the petitioner is concerned for leave to appeal to the Federal Court. (2) In regard to para. 2 it is the detriment to the petitioner which has to be looked at and in this case it has not been proved that the detriment to the petitioner is Rs.10, 000 or upwards. (3) As was held by their Lordships of the Privy Council even if a large amount of property is involved in the present suit the subject-matter in dispute must be taken to be the value of the petitioners claim which in this case has not been proved to be more than Rs.260 and merely because the loss to the defendant is going to be a very large sum of money is no reason for holding that the case will fall either under part one or under part two of S.110. (4) Even if the petitioner were to succeed in having the decree of the High Court set aside his claim, if any, which will result from the detriment to the defendants will have to be determined in another suit and whether his claim will be more than Rs.10, 000 or not is problematic and even if it was shown that he will be entitled to Rs.10,000 the claim in my opinion is too remote. (5) The phrase "directly or indirectly" refers to suits in existence and cannot be stretched to refer to suits in gremio futuri See Hanuman Prasad v. Bhagwati Prasad, 24 ALL. 236: (1902 A.W.N. 46).

30. Another argument was pressed before us and that was that the amounts drawn by the defendants are of a recurring nature and, therefore, the claim of the plaintiff would also be of a similar nature. It has not been shown what will be the recurring benefit to the plaintiff if he were to succeed in the present case and, therefore, on that ground also he cannot succeed because he does not show what is the immediate detriment to him.

31. For these reasons, I am of the opinion that the petitioner has not made out a case for leave being granted. The petition is, therefore, dismissed with costs.

KHOSLA, J. - I agree.

Petition dismissed.