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Bishambhar Nath Vs. Muhammad Ubaid-ullah Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1923All586; (1924)ILR46All227
AppellantBishambhar Nath
RespondentMuhammad Ubaid-ullah Khan and ors.
Excerpt:
civil procedure code, section 110 - appeal to his majesty in council--'substantial question of law'--construction of a particular document. - - 269, and it is interesting to refer to that because it happens to be the case which ultimately went to the privy council and now figures in i. narain prasad has failed to make out in this particular case that there is a substantial question of law of general interest involved......a view to getting from him something from which it could be argued that from the very terms of the document a substantial question of law arose. he felt himself unable to make any detailed criticism of the document from the standpoint of its not being an out-and-out sale. we are of opinion that, having regard to the state of the authorities--and again we specially refer to bhagwan sahai v. bhagioan din (1890) i.l.r. 12 all. 387 and jhanda singh v. wahid-ud-din (1916) i.l.r. 38 all. 570--this case cannot be said to be one involving a substantial question of law; and, in accordance with the practice of the privy council where special leave is asked, to that we should add a substantial question of law of general interest. this case certainly possesses no general interest. its right decision.....
Judgment:

Grimwood Mears, Kt., C.J. and Piggott, J.

1. This is an application for leave to appeal to His Majesty in Council, in a second appeal. It appears that on the 25th of June, 1886, Durga Prasad and others executed a document by which they transferred certain property to Qudrat-ul-lah Khan. The question that has arisen is-whether on the terms of the document the transaction that was entered into was an out-and-out sale, with liberty to re-acquire the property on a given date, or whether it was a mortgage. For the purposes of this application we are treating the subject matter of the suit as being of the value of Rs. 10,000 and upwards and the subject matter of the appeal as being of the value of Rs. 10,000 and upwards : but it is to be noticed that Sir Tej Bahadur Sapru, who appears for the respondents, is not able to accept the figures contained in the affidavit which has been put before the Court today by the applicants; and we express, and need express on this occasion no opinion as to the real value either of the suit or of the appeal. The High Court in second appeal affirmed the decision of the lower appellate court, who had reversed the Munsif. The Munsif decreed the suit believing that the Rs. 3,600, which was the consideration for the deed, together with a small amount of interest, namely Rs. 196, should be the proper amount on payment of which redemption should be decreed. The lower appellate court, on its construction of the document, said that the document was not in any sense a mortgage, that redemption could not be had on the terms as decreed by the Munsif, but that the real transaction between the parties was an out-and-out sale coupled with a bargain for reconveyance, on the performance of certain conditions. In second appeal the matter was carefully gone into by two learned Judges of this High Court, and they on a review of the authorities, and specially of Bhagwan Sahai v. Bhagwan Din (1890) I.L.R. 12 All. 387 and Jhanda Singh v. Wahid-ud-din (1916) I.L.R. 38 All. 570, confirmed the decision of the lower appellate court. In those two cases their Lordships of the Privy Council gave to the courts in this country clear guidance as to the interpretation of documents of this character, some of which are from time to time decreed to be out-and-out sales, and others decreed to be mortgages. Sir Tej Bahadur Sapru has argued that there is no substantial question of law, because the Abroad general principles have already been subjected to such discussion and analysis that there is no difficulty in ascertaining what are the principles. The difficulty arises in their application, and he contended that difficulty of application is not a matter which can come under the words 'substantial question of law.'

2. We have invited Mr. Narain Prasad to explain to us how and in what manner he would himself draft any document which he desired to be conclusively regarded as an out-and-out sale, and to take away from the document under consideration, or to add to the document under consideration, any terms which would make it more clear on the assumption of its being an out-and-out sale. We did this with a view to getting from him something from which it could be argued that from the very terms of the document a substantial question of law arose. He felt himself unable to make any detailed criticism of the document from the standpoint of its not being an out-and-out sale. We are of opinion that, having regard to the state of the authorities--and again we specially refer to Bhagwan Sahai v. Bhagioan Din (1890) I.L.R. 12 All. 387 and Jhanda Singh v. Wahid-ud-din (1916) I.L.R. 38 All. 570--this case cannot be said to be one involving a substantial question of law; and, in accordance with the practice of the Privy Council where special leave is asked, to that we should add a substantial question of law of general interest. This case certainly possesses no general interest. Its right decision depends on the proper construction of the particular words and clauses to be found in a particular document. Mr. Narain Prasad has relied upon a case which is reported in 14 I.C. 269, and it is interesting to refer to that because it happens to be the case which ultimately went to the Privy Council and now figures in I.L.R. 38 All. 570.

3. The application before this Court was of exactly the nature which Mr. Narain Prasad has made today. It so happened. that when the appeal came before two Judges of this Bench there was a difference of opinion as to what should be said to be the true construction of the documents. One of the learned Judges was in favour of decreeing the suit on the basis of the documents amounting to a sale, the other believed the documents to be a mortgage. Thereupon a third Judge was brought in, and the Full Bench decided that the deeds in question evidenced an out-and-out sale. Now the very facts of the division of opinion and the necessity to constitute a Full Bench, point to the substantiality of the question involved. There was a further reason why leave to appeal to His Majesty in Council was granted, namely, that at this very time in 1912 a very large number of cases of this character were believed to be on their way to this Court owing to certain legislation that had recently been enacted. This Court, welcoming a decision on the point, thought it proper to issue a certificate. The decision now appears, as we have said, in I.L.R. 38 All. 570, and is the case of Jhanda Singh v. Wahid-ud-din, to which we have referred. We are of opinion that Mr. Narain Prasad has failed to make out in this particular case that there is a substantial question of law of general interest involved. The application is therefore rejected with costs.


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