1. In 1934 the Petitioner before us, Mohamed Nural Absar (hereinafter called Absar) was appointed Common Manager by the District Judge of Beerbhoom under Sec. 95 of the Bengal Tenancy Act in respect of seventeen items of immovable property collectively known as the Khanpore Estate. Thereafter Gopinath Biswas, the father of Opposite Party No. 1, purchased an undivided four annas share of two of the co-proprietors in two of those properties, namely, patni Khanpore and dar-patni Dhitora. It is admitted that the value of that share in those two properties exceed Rs. 10,000.
2. After some unsuccessful proceedings before the learned District Judge in the miscellaneous case in which Absar had been appointed Common Manager, Gopinath Biswas instituted a suit in the Court of the Subordinate Judge, Beerbhoom against Absar. To that suit he made all the remaining proprietors of the Khan-pore Estate parties Defendants. He prayed for declaring Absar's appointment as Common Manager to be illegal and invalid and for restoration to him of the said four annas undivided share in those two items of property and for accounts. He admitted in his plaint that the value of that share was Rs. 10,020. His relief, however, was valued at Rs. 2,999 only. That amount according to him represented the value of the right of management of that share of those two properties and of his claim for accounts. As Absar was in possession and was managing his share also as Common Manager his claim in substance was to take over the management himself. The learned Subordinate Judge decreed the suit, but on appeal the District Judge dismissed it. On further appeal this Court by its judgment and decree dated the 27th February, 1945, set aside the judgment and decree of the District Judge and restored those of the Subordinate Judge. Absar has filed this application for leave to appeal to His Majesty in Council making Haripada Biswas, the legal representative of Gopinath Biswas who died during the pendency of the proceedings in this Court, and the remaining proprietors of the Khanpore Estate Respondents. On the 13th June, 1945, one of those proprietors, Mohamed Yasin Mia, filed an application praying to be transposed as Appellant. On that date an independent application by him for leave to appeal to His Majesty in Council would have been barred by time. For that reason, as also on the grounds that no relief was claimed in the plaint as against him and that he had not taken any part in the suit at any stage up to the judgment and decree of this Court, we are not disposed to grant that application.
3. The application for leave to appeal to His Majesty in Council filed by Absar has to be considered. The judgment of this Court is a judgment of reversal. Certificate can be granted only if the value of the subject-matter of the suit in the Court of first instance and the value of the subject-matter in dispute on appeal to His Majesty in Council be rupees ten thousand or upwards, or if the decree of this Court involves directly or indirectly a claim or question to or respecting property of like amount or value, unless we think it fit to certify under Sec. 109 (c) of the Code of Civil Procedure.
4. The subject-matter of the suit in the Court of first instance and of the appeal to His Majesty in Council is the claim by the Plaintiff to khas management of his four annas share in those two properties and for accounts. It is admitted by the parties that the claim for account on the basis of the decree, which is accepted by Respondent No. 1, may result in a decree for a negligible sum. The parties admit before us that the value of the right of management of that share can be taken to be about Rs. 2,900. That right is not incapable of valuation. It can be valued in the same manner like many incorporeal rights. Its value to the Plaintiff would be the amount of estimated pecuniary loss that he would suffer if his suit be dismissed. It must, therefore, be taken that the loss, which would have resulted to Gopinath Biswas, and after his death to his legal representative, Haripada Biswas, by reason of the management in respect of 4 annas share of patni Khanpore and dar-patni Dhitora being left in Absar (according to the admission of the parties) would have been about Rs. 2,900. The subject of the suit in the Court of first instance and of the appeal to His Majesty in Council is therefore below Rs. 10,000. So the case does not fulfil the requirements of the first paragraph of Sec. 110 of the Code of Civil Procedure.
5. The next question is whether this case comes within the second paragraph of that section. The question is not free from difficulty. In the first place we hold on a construction of that paragraph that the claim or question mentioned therein must be a claim or question between the parties to that suit in respect of which the appeal is being taken to His Majesty in Council. If it be held otherwise, every case of even insignificant value, which involves a question of law would come within that paragraph, on the ground that a decision on that point of law would serve as a precedent in cases between other persons in respect of other property worth Rs. 10,000 or more. We hold further that the claim or the question must not be remotely connected with property of like value.
6. The second paragraph of Sec. 110 has been construed in a number of cases decided by the High Courts in India and also in a few cases decided by the Judicial Committee of the Privy Council. The cases were mostly cases where the question was whether interest or mesne profits that was payable after the date of the institution of the suit till the date of the High Court decree could be taken into account for computing the value. Some cases were cases of partition.
7. We may mention only a few. A.V Subra-mania Ayyar v. Sellammal(1) and Gudivada Mangamma v. Maddi Mahalakshmamma(2) are cases of the first type and De Silva v. De Silva(3) and Bai Shevantibai v. Janardhan Raghunath(4) are cases of the second type. The view that has been expressed in the decisions of Indian High Courts is that the second paragraph of Sec. 110 of the Code of Civil Procedure of 1908 and the corresponding paragraph of Sec. 596 of the Civil Procedure Code of 1882 contemplates “question to or respecting other property outside the subject-matter in dispute” [De Silva's case] or “question to or respecting property additional to the actual subject-matter in dispute “[Subranvoniafs case], and though the actual decision in those two cases were approved by the Judicial Committee of the Privy Council in Gudivada's case and in Shevantibai's case opinion was reserved on that point by that august body. Even accepting the aforesaid interpretation as put in De Suva's case and Subramania's case we think that the case before us falls within the second paragraph of Sec. 110. The value of the right of khas management by the proprietors of the sixteen annas of all the seventeen items of property (the value of which is more than rupees one lac) over which Absar was appointed Common Manager would be over Rs. 10,000, for the value of the right of khas management by the proprietor of 4-annas share of two of those items, (which are no doubt the most valuable of the whole lot) is about Rs. 2,900. The judgment of this Court is that the Appellant is not a legally appointed Common Manager. The effect of that judgment is that the Appellant can no longer manage as Common Manager any share of any of those seventeen items of property. The co-sharers of Gopinath Biswas in those two items of property patni Khanpore and dar-patni Dhitora, and all the proprietors of the remaining fifteen items of property of the Khanpore Estate who were all parties to Gopi-nath's suit and who are also parties to this application could on the basis of that judgment ask the Appellant to walk out. If the Appellant succeeds before Judicial Committee of the Privy Council the claim of Haripada Biswas as also of those remaining owners of the Khanpore Estate to manage their property in khas would be negatived. Their shares are outside the subject-matter of the suit, which relate to Gopinath's share only, but the judgment of this Court directly involves the question of the management of their shares also. We accordingly hold that the case comes within the second paragraph of Sec. 110.
8. We accordingly grant a certificate.
9. We may state that if we had taken a different view relating to the applicability of the second paragraph of Sec. 110 we would not have granted a certificate under Sec. 109 (c) of the Code of Civil Procedure. The parties to bear their respective costs.