Das, J.This an application for leave to appeal to His Majesty-in-Council. As regards the value the case fulfills the requirements of Section 110, Civil P.C., and the questions argued before us are two in number; First whether it can he said that the decree appealed from affirms the decision of the Subordinate Judge; and secondly, if the answer to the first question be in the affirmative, whether the appeal involves some substantial question of law.

2. The suit was instituted by the opposite party in substance for setting aside a wakf deed dated 25th May 1917 and a supplementary deed dated 19th February 1919 executed by the late Nawab Haji Syed Muhammad Mehdi Hassan Khan commonly known as Badshah Nawab. The plaintiff-opposite party is one of the heirs of Badshah Nawab and it is his case that the deeds in question were executed by the Badshah Nawab under the undue influence of Syed Ali Zamin, the petitioner before us, and Bibi Zainia, the wife of Badshah Nawab; and, secondly, that the wakf deeds are wholly illusory and have no substance in point of fact; and thirdly, that there was never such complete transmutation of possession as is required under the Shia law to complete a wakf. He also claimed that the houses and premises No. 68, Dharamtalla Street in Calcutta did not belong to Bibi Zainia but belonged to the estate of Badshah Nawab. The learned Sub Judge decided each of the questions in favour of the plaintiff and gave him a decree substantially as claimed by him. That Court also gave him a decree for mesne profits against Syed Ali Zamin, who claimed to have succeeded to the office of the mutawali on the death of Badshaw Nawab. Syed Ali Zamin and Bibi Zainia appealed to this Court. On appeal this Court held [ Ali Zamin and Another Vs. Syed Muhammad Akbar Ali Khan and Others, ], that the house and premises 68, Dharmatalla Street, was the property of Bibi Zainia and did not belong to the estate of Badshah Nawab. To this extent this Court varied the decree passed by the Court of first instance. This Court also held that defendant Ali Zamin was entitled until the matter was determined by a Court of justice to remain in possession of the property and administer the estate in accordance with the strict terms of the instrument of wakf. In this view the High Court set aside the decree for mesne profits passed against Ali Zamin but directed him to account to the plaintiff for the management of the wakf property from the time he took possession in March 1919 up to 1st October 1922 when he gave up possession of one-third of the property to the plaintiff. To this extent also this Court varied the decree passed by the Court of first instance. On the main question, however, this Court affirmed the decree of the Court of first instance; but in doing so it set aside the findings of the Court of first instance both on the question of undue influence as also on the question whether the wakf deed was illusory. It agreed, however, with the Court of first instance in holding that there was not such transfer of possession as the Shia law required and that consequently the wakf deed could not be given effect to.

3. It was contended on behalf of Ali Zamin the petitioner before us that there is in fact a substantial question of law involved in this appeal. As I understand the argument of Mr. Khurshed Husnain he contends that the circumstances upon which this Court relied as establishing that there was no change of possession are circumstances showing breaches of trust on the part of Badshah Nawab but are not circumstances that can be taken note of by the Court in determining the question of transmutation of possession. He contends that Badshah Nawab was the proprietor of the estate. He shows that under the deed of wakf the Badshah Nawab was to be the first mutawalli and he argues that, this being the position, the only question which had to be considered by the Court was whether there was sufficient manifestation of an intention on the part of Badshah Nawab to change his character of possession from that of a proprietor to that of a trustee; and he insists that the recital in the wakf deed that he has in fact changed his character of possession is conclusive on the question, and that the evidence of subsequent transactions is not admissible on this question. Mr. Kurshed Husnain relies upon a decision of the Judicial Committee in Satgur Prasad v. Kishore Lal AIR 1919 P.C. 60 which decides that the question of the true character of possession is in reality one of legal inference from documents and not one of fact. I confess that the argument is a very attractive one and I am not prepared to say that Mr. Khurshed Husnain is not right in the view which he has presented to us; but it is not necessary for me to come to a decision on this point as I have no doubt whatever, that the decree appealed from cannot be regarded as having affirmed the decision of the Court immediately below.

4. As I have said the decree of this Court set aside the decree of the learned Subordinate Judge in regard to the ownership of No. 68, Dharmatalla Street, in Calcutta. It also set aside the decree of the Subordinate Judge in regard to the question of mesne profits; although, in lieu thereof it directed the defendant to account to the plaintiff on the footing that the defendant was a trustee of the property up to a particular date. Sir Sultan Ahmed appearing on behalf of the opposite party contends that the variation is entirely in favour of the appellant and that such variation as there is in the decree of this Court will not give him the right to appeal to His Majesty-in-Council, since the petitioner is really appealing from that portion of the decree of this Court which affirms the decree of the Court of first instance. I confess that on the words of the statute the argument is wholly inadmissible. All that we have to see u/s 110 of the Code is whether

the decree or final order appealed from affirms the decision of the Court immediately below.

5. If it does, then the applicant is not entitled to succeed unless he satisfies the Court that the appeal involves some substantial question of law; but in this case one has only to read the two decrees, the one passed by the learned Subordinate Judge and the one passed by the High Court, to be satisfied that neither in point of form nor in substance can it be said that the decree appealed from affirms the decision of the learned Subordinate Judge. The decision of the Judicial Committee in AIR 1925 60 (Privy Council) in my judgment concludes the matter. That was an appeal by the defendant in a suit by the plaintiff in which he claimed a certain property by right of adoption. The defendant who was the widow of the last owner denied the adoption. She also claimed to be entitled to Rs. 3,000 per annum as maintenance if the adoption were proved. The Courts in India concurrently found in favour of the adoption. The first Court gave the widow maintenance at the rate of Rs. 800 per annum. The Court of the Judicial Commissioner modified the decree passed by the first Court by increasing the maintenance from Rs. 800 to Rs. 1,200 per annum. It will be noticed that the modification was entirely in favour of the defendant who now applied to the Court of the Judicial Commissioner for leave to appeal to His Majesty-in-Council. The application was dismissed on the ground that the decree of the first Court had been affirmed except in regard to a small change in favour of one of the applicants, and that no question of law was involved. In applying for special leave, Sir George Lowndes. K.C. claimed that his client had a right to appeal to the Privy Council under the express words of the statute. He pointed out that the appellate Court did not affirm the decree of the first Court but varied it; and that consequently it was not material u/s 110 whether any substantial question of law was involved. He, however, stated that having regard to the concurrent findings on the question of adoption, the petitioner desired to appeal only with regard to the amount of the maintenance. Lord Dunedin in delivering the judgment of the Judicial Committee said as follows:

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.

6. Now the contention was that the appellate Court did not affirm the decree of the first Court but varied it. In my opinion this is the exact position we have before us.

7. Sir Sultan Ahmad contended before us that the decision of the Judicial Committee is not applicable to this case inasmuch as the defendant in this case has not asked for a decree in his favour. The argument appears to be this: The defendant in the case before the Judicial Committee was the counter-claimant and put forward a claim to Rs. 3.000 per annum for maintenance. The Court of first instance gave her Rs. 800 and the Court of the Judical Commissioner gave her Rs. 1,200; but as her claim was for Rs. 3.000, she was entitled to appeal to His Majesty-in-Council, the decree of the Judicial Commissioner having varied the decree passed by the Court of first instance. I confess that it is difficult to follow this argument. Section 110 makes no exception in favour of defendant who may happen to be a counter claimant. The only question is whether a decree of the High Court may be said to affirm the decision of the Court immediately below where the High Court varies the decision of the Court immediately below. Lord Dunedin in the case to which I have referred found that in such a case it cannot be said that the decree of the High Court has affirmed the decision of the Court immediately below. This being the position and the case fulfilling the requirements of Section 110 of the Code in regard to the amount or value of the subject-matter of the suit, I am of opinion that the petitioner is entitled to the usual certificate giving him leave to appeal to His Majesty-in-Council. He is also entitled to the costs of this application; hearing fee five gold mohurs.

Wort, J.

8. I agree.