Manohar Lall, J.This is an application by the principal defendant, Bashir Mohammad Khan, for leave to appeal to His Majesty in Council from a decision of this. Court which reversed the decision of the Subordinate Judge in a suit instituted for recovery of the plaintiffs share in a dower which he alleged to be Rupees 40,000 and one gold deceased to the deceased, Mt. Bibi Hamidan. Zahir Ahmad Khan and Monir Ahmad Khan, brothers of the plaintiff, were also made pro forma defendants in the suit on the allegation that although they were to Tiave joined in the suit, they refused to join as they could not arrange for the court-fees and they would institute a suit hereafter. The appellants ease was that the dower debt was only Rs. 500 and further that the suit of the plaintiff was barred by limitation.

2. The learned Subordinate Judge came to the conclusion that the evidence of the witnesses of the plaintiff was unsatisfactory to prove that the dower fixed was Rs. 40,000 and one gold mohur. He also Jaeld that the dower debt must be assumed in this case to be prompt in part and deferred as to the other part and as Mt. Bibi Hamidan must have made a demand for the payment of the prompt portion of the share soon after the difference with her husband, which took place long before the institution of the suit, the plaintiff was not entitled to any decree.

3. This decision was reversed by this Court on the finding that the dower fixed was Rs. 40,000 and a gold mohur and that there was no satisfactory evidence that a part of the dower was prompt. The result was that a decree was passed in favour of the plaintiff for Rs. 6666-8-8 on account of his admitted shajre in the dower of the deceased, Mt. Bibi Hamidan.

4. The defendant submits that the judgment of the High Court being a judgment of reversal and the decree directly or indirectly involving a claim or question to or respecting property of about Rs. 10,000 he is entitled to a certificate as a matter of right. He also urges that the decision of High Court has the effect of estopping the appellant by the rule of res judicata from agitating the same question in respect of the amount of their share in the dower which will be payable to the pro forma defendants when they will institute their suit. It is further urged that it is immaterial that in the present suit the pro forma defendants did not lay any claim to their share in the dower, and as a matter of fact those defendants have now instituted a suit for recovery of their share of the dower.

5. On behalf of the respondent it was urged that as the decree which has been passed in favour of the plaintiff is for a sum below Rs. 10,000, the value of the claim or question in the present case cannot, by any stretch of reasoning, be held to be above Rs. 10,000.

6. A number of cases were cited at the Bar, and I have examined a large number of cases which have clustered round this difficult question.

7. Speaking generally the authorities on the construction of this section can be placed under two broad heads: (1) in which it has been held that the final decree or order is appealable if the value of the property to which the claim or question relates and the rights in which are affected by the decision on such claim or question is Rs. 10,000 or upwards, whether or not loss or detriment to the value of Rs. 10,000 has accrued to the applicant as a result of the decree or order that has been passed: see amongst others Dalgleish v. Damodar Narain 33 Cal. 1286 , Sri Kishan Lal v. Kashmiro 35 All. 445 and Mohammad Asghar and Others Vs. Mt. Abida Begum and Others, Case in which it has been held that u/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 u/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. The leading ease is Subramania Ayyar v. Sellammal AIR 1916 Mad. 985 followed in this Court in Bhaunath Gir v. Bihari Lal AIR 1919 Pat. 305. Reference may also be made to Radha Kunwar v. Reoti Singh AIR 1916 P.C. 18, De Silva v. De Silva 6 Bom. L.R. 403, Raoji Bhikaji v. Laxmibai Anant AIR 1920 Bom. 418 and Nariman Rustomji Mehta v. Hasham Ismayal AIR 1925 Bom. 137 . Their Lordships of the Judicial Committee have approved the ratio decidendi of the Madras case in Subramania Ayyar v. Sellammal AIR 1916 Mad. 985 in AIR 1930 44 (Privy Council); Mukhlal Singh v. Kishuni Singh 18 and Jogesh Chandra Roy v. Emdad Meah AIR 1932 P.C. 28.

8. In a recent decision of their Lordships in AIR 1944 65 (Privy Council) a large number of these cases were again noticed by their Lordships. In this case the plaintiffs suit for partition of joint family property was dismissed by the Courts below on the ground of limitation. Their Lordships held 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 was claiming, and further that the question as to the title of the plaintiff to the share which was claimed in the joint family property did not become a question respecting the whole of the joint family property merely because if her title was established it would result in the joint family estate being partitioned.

9. It will be noticed that in the last Privy Council case the appellant to His Majesty in Council was the plaintiff. It is obvious that different considerations would arise where the applicant for leave to appeal to His Majesty in Council is the defendant: see Sahu Ram Kumar Vs. Mohammad Yakub and Another, , Venkatathirisami Naidu v. Kasthuriranga Appaawami Naidu AIR 1933 Mad. 401 and the observations of Page C.J. Dawsons Bank Ltd. v. Nippon Menkwa Kobushiki Kaisha AIR 1934 Ran. 65, The question is not free from difficulty as has been pointed out in a recent decision of the Calcutta High Court in Nural Abbas v. Haripada Biswas 50 C.W.N. 255, which comes nearest to the situation in the present case. In that .case a common manager of an estate was appointed u/s 95, Bengal Tenancy Act. The purchaser of a four-anna share in the Estate instituted a suit against the common manager to which all the co-sharers were made parties for recovery of possession of his share after a declaration that the common manager was illegally appointed. The suit was decreed by the Subordinate Judge but was dismissed by the District Judge. On second appeal to the High Court, the decision of the Subordinate Judge was restored, and it was held that the appointment of the common manager was illegal. It was admitted that the value of the subject-matter of the suit namely the right of the manager to the four annas-share, was only Rs. 2900 although it was stated in the plaint that the value of the share of the plaintiff was Rs. 10,020. The defendant asked for leave to appeal to His Majesty in Council.

10. The learned Judges after examining some of the cases to which I have referred came to the conclusion that the effect of the judgment of the High Court was that the appellant could no longer manage as common manager any share or any of the 17 items of property of which the value was undoubtedly more than Rs. 10,000. They also pointed out that the co-sharers of the plaintiff in the properties which he claimed and all the proprietors of the remaining fifteen items of property of the estate were all parties to the suit and were also parties to the application and that they could on the basis of that judgment ask the appellant to walk out and observed:

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 has would be negatived. Their shares are outside the subject-matter of the suit, which relate to Gopinaths share only, but the judgment of this Court directly involves the question of the management of their shares also. We accordingly hold that the ease comes within the second paragraph of Section 110.

11. The respondent, on the other hand, relies upon the case in Khajeh Sayedulla v. K. Habibullah 43 C.W.N. 432. In that case some of the heirs of a deceased person instituted a suit for payment of their shares of the monthly allowance on the allegation that the allowance due to all the heirs was Rs. 187 per month but that the share due to the plaintiffs was RS. 33-2-0 and they valued their suit at Rs. 3300 which was also the value of the appeal to the High Court. The suit was dismissed by the Courts below and the plaintiffs then applied for leave to appeal to the Privy Council on the footing that the capitalised value of the total amount of the allowance due according to their allegation to all the heirs was over Rs. 10,000, but those heirs never put forward any claim. It was held that although the other heirs were parties to the suit, the decision did not involve directly or indirectly their interests and the applicants were not entitled under the second paragraph of Section 110, Civil P.C. to fall back upon the value of anything beyond their own share. It will be observed that in this case the plaintiff was the appellant and not the defendant, and, therefore, this decision does not run counter to the case in Nural Abbas v. Haripada Biswas 50 C.W.N. 255.

12. The respondent also relied upon the case of this Court in Mathura Prasad Singh v. Ram Prasad Tewari 2 P.L.T. 340. In that case the plaintiff sued upon a mortgage bond of which the total amount at the date of the plaint was Rs. 8622, and if the plaintiff had succeeded the amount on the date of the decree would have been over Rs. 10,000. But the suit was dismissed. The plaintiff appealed to the High Court and his appeal succeeded and he got a decree of over Rs. 10,000 up to the date of the decree of the High Court. The defendant applied for leave to appeal to His Majesty in Council and it was contended on behalf of the plaintiff that the amount or value of the subject-matter of the suit in the Court of first instance was not Rs. 10,000 or upwards, but this argument was negatived by the learned Chief Justice in these words:

I am unable to accept this view. I think that the proper construction to be placed upon that section in be far as it relates to the amount or value of the subject-matter of the suit, must be taken to be the amount or value which the plaintiff either obtained or, had he been successful, would have obtained in this suit at the date when the decree was passed.

I do not see how this case helps the respondents.

13. Having given my most anxious consideration to this question, which is not free from difficulty, I am on the whole of opinion that in this case I should follow the view taken by the Calcutta High Court in Nural Abbas v. Haripada Biswas 50 C.W.N. 255, and grant the certificates as asked for. The question being a question of difficulty, it induces me to grant the certificate so that their Lordships may decide this question authoritatively for the guidance of the High Courts in India.

14. The result is that the applicant will be granted a certificate that the requirements of Section 110, Civil P.C. are satisfied. Each party will bear his own costs in this Court.

Mukharji J.

15. I agree.