Wort, Ag C.J.

1. This is an application for a certificate that the case is a fit one to be taken on appeal to His Majesty in Council. The applicant was the defendant in the action in which the plaintiff claimed possession of certain property in the following circumstances.

2. There was a contract of sale by the plaintiff to the defendant under which the defendant had paid Rs. 75 as earnest money and there was a further payment by him of Rs. 3,000. The case of the plaintiff was that the defendant, after the plaintiff had executed the sale-deed, had tampered with it and interpolated or changed certain pages in the agreement and turned what was according to the plaintiffs description a conditional sale into an absolute sale. As Agarwala, J. pointed out in the course of his judgment what the plaintiff meant by conditional sale was that the title in the property should not pass until the defendant had paid the whole of the consideration. With regard to the fact that the defendant had not paid the whole of the consideration within the time stipulated, there appears to have been no dispute. In those circumstances the trial Judge held that title had not passed to the defendant and that the plaintiff was entitled to recover possession; but he held in addition that the defendant had forfeited the Rs. 3,000 which as I have stated, had been paid by him.

3. On appeal to this Court the judgment of the trial Court was affirmed as regards the main question but reversed so far as the question of Rs. 3,000 and it was held that the Rs. 3,000 was not forfeited. It will be seen therefore that so far as that matter is concerned, the defendant has no grievance. The substantial question in this case is whether the judgment of this Court was a judgment of affirmance, if so it would be necessary for the applicant to show that there was some substantial question of law within the meaning of Section 110, Civil P.C. Dealing with the latter question, it is clear that there is no substantial question of law. The question which was in dispute in this Court and in the trial Court was substantially a question of fact. Once having decided that the document, the sale deed, had been tampered with, that the document as originally drawn up and executed by the plaintiff was what the plaintiff was pleased to call a conditional sale, it necessarily followed that the property did not pass to the defendant in the circumstances of the case, the balance not having been paid. I fail to see any question of law at all and there being no substantial question of law, it remains therefore to consider whether this was a judgment of affirmance. The contention of the applicant necessarily is that it was not a judgment of affirmance as the High Court has varied the judgment or decree of the trial Court by holding that the sum of Rs. 3,000 was not forfeited.

4. The leading case with regard to this matter is a case upon which many judgments of the High Courts in India are based: at least the case which has been discussed by many of the High Courts in India with regard to this question. It is the case in Annapurnabai v. Ruprao 1925 PC 60, where their Lordships of the Privy Council gave special leave to appeal in these circumstances. The suit was a suit in which the plaintiff claimed certain property basing his claim on an adoption which was denied by the defendant. The defendant, a widow, claimed to be entitled to a sum of Rs. 3,000 per annum as maintenance. The trial Court as did the appellate High Court decided in favour of the plaintiff on the question of adoption. The trial Court however allowed the widow Rs. 800 per annum as maintenance instead of her claim for Rs. 3,000. This was varied by the High Court by increasing the maintenance allowance to Rs. 1,200 per annum. It will be seen therefore that the amount allowed was still short of the original claim which she had made. In those circumstances their Lordships of the Privy Council in a very short opinion gave special leave to appeal but limited the appeal to the question as to the maintenance allowance. The case in Annapurnabai v. Ruprao 1925 PC 60 was discussed by the Calcutta High Court in Bibhuti Bhusan Dutta v. Sreepati Dutta 1935 Cal 146, in which the learned Judges made this observation, which I should like to adopt, "This Court" said the learned Judges,

however has refused on the strength of Annapurnabais Case Annapurnabai v. Ruprao 1925 PC 60 to break away from a long course of decisions of Courts in India which firmly laid down the principle that when the appellate Court modifies the original decree upon a single point and that completely in the applicants favour so that he has no further grievance in that matter, he cannot, because of that modification, have a right to an appeal on other points on which the Courts have concurred, without showing a substantial question of law.

5. The learned Judges went on to say:

The enormity of the opposite view is so very great that a far more clear and express pronouncement of the Judicial Committee would be necessary to uphold it.

6. The learned Judges then later in their judgment referred to a decision of Rankin, C.J., and Ghose, J. in Narendra Lal v. Gopendra Lal 1927 Cal 543. The learned Chief Justice in the latter case referring to a previous case reported in Sreenath Ray Bahadur v. Secretary of State 8 CWN 294 and to Annapurnabai v. Ruprao 1925 PC 60, said that he did not think that the latter showed that it was an erroneous view; but in construing Section 110, Civil P.C., what they had to look at was the substance and to see what was the subject matter of the appeal to His Majesty in Council. Now there is no decision of this Court which is to the contrary effect. The learned Advocate relies upon a case in Homeswar Singh v. Kameshwar Singh 1933 Pat 262, but as will be seen it differs from the case in hand as did the case before their Lordships of the Judicial Committee inasmuch as there was still a substantial point from which by way of appeal the appellant might benefit. It was a case on a mortgage in which the plaintiff had succeeded in the trial Court in getting a mortgage decree. That decree had been varied in the High Court by giving the plaintiff not a mortgage decree but a money decree for a less amount. Again in Jamuna Prasad Singh v. Jagarnath Prasad Bhagat 1929 Pat 561, the trial Court had granted a decree to the plaintiff in a mortgage suit but disallowed the plaintiffs claim for interest pendente lite. There was an appeal both by the defendant and a cross-appeal by the plaintiff. The High Court dismissed the defendants appeal but allowed the plaintiffs cross-appeal, thus modifying the decree of the trial Court. That again is substantially on the same footing as the case before their Lordships of the Privy Council but from the facts which I have stated it is clear that the case is clearly different from the one before us. In my judgment I would adopt the view taken by the learned Judges of the Calcutta High Court with regard to this matter and would hold that this is in substance a judgment of affirmance and that therefore it is necessary for the petitioner to show that there is some substantial question of law. Upon that point, as I have already stated, he has failed, and in my opinion therefore the application for leave to appeal should be dismissed with costs. We assess the hearing fee at five gold mohurs.

Dhavle, J.

7. I agree. As regards the passing of title under the sale deed in question, both the Courts were in agreement and have held against the applicant for leave to appeal to His Majesty in Council. In the circumstances of the case that was a substantial finding of fact and the decree of this Court one of affirmance. The only other disputed matter in the case was the question of forfeiture of the sum of Rs. 3,400. The trial Court held that the plaintiff was entitled to keep the money. This Court on appeal held in favour of the applicant that the plaintiff was not entitled to keep the money. In respect of this sum of money the applicant can have no further grievance. He is anxious to appeal as regards the passing or non-passing of title under the sale deed; but that is a matter on which both the Courts have, as already stated, been in agreement. Many cases have been cited before us; but the one that comes nearest to the matter before us is Narendra Lal v. Gopendra Lal 1927 Cal 543. The decisions cited from this Court are clearly distinguishable on the facts, though there are undoubtedly observations in them that are in favour of the applicant. In the second of those decisions, I mean the one from Homeswar Singh v. Kameshwar Singh 1933 Pat 262, no reference was made to Narendra Lal v. Gopendra Lal 1927 Cal 543 and in the other there was apparently an inclination to doubt the correctness of what was said by Rankin, C.J., in Narendra Lal v. Gopendra Lal 1927 Cal 543 , but as I have already indicated, the decision in this case from Jamuna Prasad Singh v. Jagarnath Prasad Bhagat 1929 Pat 561, is easily distinguishable on the facts. In Narendra Lals case Narendra Lal v. Gopendra Lal 1927 Cal 543 , the only modification made by the Court of appeal was in favour of the applicant for leave to appeal to His Majesty in Council, and it was a modification of such a character as to leave the applicant without any further grievance so far as that particular matter was concerned. In these circumstances and after discussing the decision of the Privy Council in Annapurnabais case Annapurnabai v. Ruprao 1925 PC 60, Rankin, C.J. observed:

We may take it, I think, that where the amount is a question in dispute the fact that the Courts differ and that the higher Court differs in favour of the applicant does not mean that the decision is one of affirmance, but I am not in a case of this kind prepared to say that because on a totally different point, namely a point about the share, the applicant has succeeded and succeeded altogether so that he has no further grievance in that matter, he can without showing a substantial question of law have a right to litigate upon other points upon which both the Courts have been in agreement.

8. In my opinion that really concludes the matter, though the decision in that case is not directly binding on us.