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B. Bishambhar Nath Vs. Muhammad Abaidullah and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in79Ind.Cas.213
AppellantB. Bishambhar Nath
RespondentMuhammad Abaidullah and ors.
Excerpt:
civil procedure code (act v of 1908), section 110 - application for leave to appeal to privy council--construction of document--substantial question of law of general interest. - - 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 jhanda singh v. narain prasad has failed t6 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 stand-point 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. bhagwan din 12 a. 387 : 17 i.a. 98 : 5 sat. p.c.j. 557 : 6 ind. cas. (n.s.)992 p.c. and jhanda singh v. wahid-ud-din 36 ind. cas. 38 38-a. 570 : 31 m.l.j. 750 : 21 c.w.n. 66 : 20 m.l.j. 529 : 14 a.l.j. 1189 : (1916) 2 m.w.n. 570 : 19 bom l.r. 1 : 5 : l.w. 189 : 25 c.l.j. 524 : 10 bur. l.t. 131 : 43 i.a. 284 : (p.c.), this case cannot be said to be one involving a substantial question of law; and, in.....
Judgment:

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 Qudratullah 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 is. 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 fig-ires contained in the affidavit which has been put before the Court to-day by the applicants; we express, and need express on this Decision 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 or re-conveyance, on the performance of certain conditions.

2. 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 12 A. 387 : 17 I.A. 98 : 5 sat. P.C.J. 557 : 6 Ind. Cas. (N.S.)992 P.C. and handa Singh v. Wahid-ud-din 36 Ind. Cas. 38 38-A. 570 : 31 M.L.J. 750 : 21 C.W.N. 66 : 20 M.L.J. 529 : 14 A.L.J. 1189 : (1916) 2 M.W.N. 570 : 19 Bom L.R. 1 : 5 : L.W. 189 : 25 C.L.J. 524 : 10 Bur. L.T. 131 : 43 I.A. 284 : (P.C.) 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 broad 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 ft matter which can come under the words substantial question o 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 stand-point 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. Bhagwan Din 12 A. 387 : 17 I.A. 98 : 5 sat. P.C.J. 557 : 6 Ind. Cas. (N.S.)992 P.C. and Jhanda Singh v. Wahid-ud-din 36 Ind. Cas. 38 38-A. 570 : 31 M.L.J. 750 : 21 C.W.N. 66 : 20 M.L.J. 529 : 14 A.L.J. 1189 : (1916) 2 M.W.N. 570 : 19 Bom L.R. 1 : 5 : L.W. 189 : 25 C.L.J. 524 : 10 Bur. L.T. 131 : 43 I.A. 284 : (P.C.), 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 had relied upon a case which is reported in Jhandu Singh v. Wahid-ud-din 14 Ind. Cas. 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 Jhanda Singh v. Wahid-ud-din 36 Ind. Cas. 38 38-A. 570 : 31 M.L.J. 750 : 21 C.W.N. 66 : 20 M.L.J. 529 : 14 A.L.J. 1189 : (1916) 2 M.W.N. 570 : 19 Bom L.R. 1 : 5 : L.W. 189 : 25 C.L.J. 524 : 10 Bur. L.T. 131 : 43 I.A. 284 : (P.C.) The application before this Court was of exactly the nature which Mr. Narain Prasad has made to-day. 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 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 in-voled. There was a Voi Vtaer teascn Vtvy 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 Jhanda Singh v. Wahid-uddin, 36 Ind. Cas. 38 38-A. 570 : 31 M.L.J. 750 : 21 C.W.N. 66 : 20 M.L.J. 529 : 14 A.L.J. 1189 : (1916) 2 M.W.N. 570 : 19 Bom L.R. 1 : 5 : L.W. 189 : 25 C.L.J. 524 : 10 Bur. L.T. 131 : 43 I.A. 284 : (P.C.) and is the case to which we have referred. We are of opinion that Mr. Narain Prasad has failed t6 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 and fees on the higher scale.


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