1. This is a reference by the learned Commissioner and District Judge of Ajmer-Merwara, purporting to have been made under Section 17 of Regulation 1 of 1877. Several preliminary points have been taken by Mr. Banerji on behalf of the opposite party contending that the reference is not competent. His first point is that the proceedings would be governed by the new Regulation, namely, Regulation 9 of 1926 and, therefore, an appeal from the decision of the Subordinate Judge would lie directly to the Judicial Commissioner and no appeal lay as under Regulation of 1877 to the Commissioner. Connected with the same objection is a further objection that as no appeal lay to the Commissioner a reference by the Commissioner to this Court was not competent. The point raised is really covered by a Full Bench decision of this Court, namely, Rama Singha v. Shankar Dayal : AIR1928All437 . It was held there that an appeal being a mere continuance of the original proceeding initiated by the filing of the plaint and the right to continue that proceeding by way of an appeal cannot be affected by a new Act, unless it expressly so provides. The suit out of which these proceedings have arisen was instituted on 13th February 1913 and the present proceedings have arisen out of the execution proceedings following the decree. According to the Full Bench decision all the law that was in force relating to appeals and the Courts to which, appeals lay at the date of the institution of the suit would govern the proceeding following the finding of the plaint. In this view these objections fail.
2. Mr. Banerji's next objection is that the learned Commissioner and District Judge has made a reference on the questions of fact or on questions which cannot be decided without deciding questions of fact and, therefore, the reference is not covered by Section 17 of Regulation 1 of 1877. He points out that under Section 16 of Regulation 1 of 1877 when the Court of first appeal confirms the decision of the Court of the original jurisdiction on a matter of fact, such decision is to be final. It will be necessary to mention a few facts in order to appreciate how far the reference is good or bad in law. We may point out at once that a reference is permitted under Section 17 when a question of law or usage having the force of law, or the construction of any document, or the admissibility of any evidence affecting the merits of the case arise and not otherwise. It appears that there is a head of a religious institution known as Dargah Sharif who goes by the name of Dewan or Sajjadanashin. One Imam Uddin holding that position made a mortgage of several properties including his residential house and a garden-house known as Nohra to the opposite party by a deed dated 22nd January 1912. The opposite party obtained a decree, on the death of Imam Uddin, against Sharf Uddin, the then head of the institution, under a compromise. Sharf Uddin having died, the opposite party has been trying to execute his decree against the present head of the institution, namely, Alley Rasul. The Subordinate Judge and agreeing with him on this point the learned Commissioner District Judge has held that out of the properties mortgaged two, namely, the residential house and the Nohra are saleable, being private property of the mortgagor. This would appear to be a finding of fact. Alley Rasul was however not satisfied with this decision and he asked the Commissioner District Judge to make this reference. Four points have been framed by the learned District Judge for our opinion on them. These are : (1) Is Diwan Syed Alley Rasul legal representative of Diwan Sharfuddin Ali Khan within the mea ning of Sections 50 to 52, read with Section 2, Clause 2, Civil P.C.? (2) Was the decree No. 66 of 1916 passed against Diwan Sharf Uddin Ali Khan in his official capacity or was it passed against him only in his private capacity? Is the decree binding upon the present Diwan? (3) Are the Haveli and Bagh liable to be sold in execution of the decree No. 66 of 1913? (4) What is the true construction and effect of Exs. Dh.6, Ah-8 and 0-1, O 3, 0-4, 0-19 to 0-39 and 0-41 to 0-66 on the question of the Diwan being legal representative and the nature of the property in question
3. It will be observed that the question No. 1, cannot be treated as a pure question of law. The question is whether Alley Rasul is a legal representative of Diwan Sharfuddin? The answer to this question would depend on several questions of fact involved : in it. If Alley Rasul is an heir under, the Mahomedan law to Imam Uddin, then he can be treated as a legal representative of the mortgagor in respect of his private properties. Again, if Alley Rasul be in possession, without any title, over the properties of the mortgagor, Imam Uddin, he would be also a legal representative of the mortgagor for the purposes of the, execution of the decree obtained against the estate of the deceased: vide Section 2, Clause 11, Civil Procedure Code. Again if Imam Uddin made the mortgage for the, benefit of the institution of which he was the head and if he could lawfully like a mortgage of those properties, then the successor-in-title of Imam Uddin would be a legal representative of Imam Uddin for the purposes of execution.
4. It will therefore be seen that a question like question No. 1 cannot be answered as a question of law. Coming to question No. 2 it is again not a question of law. It is a question of pure fact, namely, whether the decree that was passed against Sharfuddin was passed in his official capacity or in his private capacity. Question No. 3, we have already pointed out, is a question of fact. If these be the private property of Imam Uddin, then certainly they could be sold up in execution of a decree obtained on a mortgage made by him.
5. Coming to the fourth point, the question of the construction of a certain document is a question of law, but the question what legal inference may be drawn from a number of documents is a question of fact and not a mere question of law. We may refer to the case of Midnapur Zamindari Co. Ltd. v. Uma Charan Mandal A.I.R. 1923 P.C. 187, decided by the Privy Council on this point. We may point out that Section 17 of Regn. No. 1 of 1877, mentions 'the construction of any document' and not of any 'documents.' In the circumstances stated above, we are obliged to return the reference to the learned Commissioner and District Judge as not being competent. If the learned Commissioner and District Judge thinks that he should make any fresh reference, he should carefully state the facts which he finds as a Court of appeal and then should state the questions of law that he may desire to be decided by the High Court. His attention is drawn to Section 18 of Regn. 1 of 1877. Under Section 20, Ragn. 1 of 1877, we direct that the office shall certify to the Court below the costs of the parties in this Court. These costs are at the disposal of the appellate Court.