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Ramanathan Chettiar Vs. Audinatha Ayyangar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1931Mad642
AppellantRamanathan Chettiar
RespondentAudinatha Ayyangar and ors.
Cases ReferredAnant Ram v. Raja Sheoraj Singh
Excerpt:
.....for which he had pledged the estate: kashi krishna narain [1901] 23 all 227 it was pointed out by lord hobhouse that this clause is clearly intended to meet special cases; there are questions, as for example, those relating to religious rites and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money, 6. it is admitted that the point in dispute is not of any public importance. it is not likely that many persons will lend money to mortgagors in circumstances like those present in this case and i do not think occasions will arise very frequently for applying the decision in tins case as a precedent.madhavan nair, j.1. this is an application for leave to appeal to the privy council against the decree of this court in a.s. no. 176 of 1 927 dated 2nd august 1929. the amount of the subject matter involved in the suit is now by the accumulation of interest more than rs. 10,000, but was below that sum at the time of the institution of the suit.. leave is therefore claimed under section 109 (c), civil p.c., on the ground that the case is a ' fit one ' for leave to appeal to the privy council.2. the facts of the case appear fully from the judgments of this court. however a brief statement of them may be made here for the purposes of this petition. the first counter-petitioner was the holder of a third mortgage over some properties belonging to defendant 1. the heirs of the first.....
Judgment:

Madhavan Nair, J.

1. This is an application for leave to appeal to the Privy Council against the decree of this Court in A.S. No. 176 of 1 927 dated 2nd August 1929. The amount of the subject matter involved in the suit is now by the accumulation of interest more than Rs. 10,000, but was below that sum at the time of the institution of the suit.. Leave is therefore claimed under Section 109 (c), Civil P.C., on the ground that the case is a ' fit one ' for leave to appeal to the Privy Council.

2. The facts of the case appear fully from the judgments of this Court. However a brief statement of them may be made here for the purposes of this petition. The first counter-petitioner was the holder of a third mortgage over some properties belonging to defendant 1. The heirs of the first mortgagee-over the properties instituted a suit on his mortgage making defendant 1, the second mortgagee and the present plaintiff, the third mortgagee, parties to it and obtained a decree for sale. The decree-holders purchased the properties in execution and afterwards sold them to one Bharati, defendant 5 in the present suit. Thereupon the mortgagor, defendant 1, instituted a suit against Bharati for a declaration that the purchase was made for his own benefit. This suit was contested by Bharati but eventually it was compromised, it being agreed that defendant 1 should take over the properties on depositing in Court Rs. 29,000 to the credit of Bharati within a specified date. Defendant 1 obtained Rs. 30,000 from defendant 16 in the present suit, undertaking to sell him the properties in question. He then deposited Rs. 29,000 in Court and made a gain for himself of Rs. 1,000. By this time the present suit had been instituted by the plaintiff for the enforcement of his mortgage over the properties. It has been found by this Court that when defendant 16 entered into an agreement with defendant 1 the former had distinct notice of the plaintiff's claim and that he was not a bona fide purchaser of the property.

3. As stated in the opening paragraph of my judgment in the appeal the question for decision was whether the mortgage executed by defendant 1 in favour of the first counter-petitioner (that is, the plaintiff-appellant) is entitled to priority over the sale deed executed by him in favour of defendant 16 in so far as the mortgage deals with the properties covered by the sale deed. We held that the plaintiff was entitled to priority. Whether he is so entitled to or not is a pure question of law. It is now well settled that if in execution of a decree for sale of the mortgaged property the mortgagor purchases the property for himself, it passes into his hands subject to the right of the subsequent mortgagee it being his duty as owner of the estate to discharge the debt of the subsequent mortgagee for which he had pledged the estate: see Otter v. Lord Vaux 43 E.R. 1381. It is also settled in this Court that the same principle would apply even if there had been intermediate purchasers of the property before it came into the hands of the mortgagor, a question that was left undecided in Otter v. Lord Vaux 43 E.R. 1381: see Manjappa Roi v. Krishnayya [1906] 29 Mad. 113. The petitioner accepts the correctness of this decision though the soundness of the particular reasoning on which it is based is questioned. How far the application of the above principles will be affected, if at the time when the mortgagor purchases the property from a stranger purchaser, he has already agreed to sell it to another person from whom he gets the money to purchase it is the question with respect to which the decision of the Privy Council is sought in this case. There is no specific decision or authority covering this point.

4. It may be conceded that this is a substantial question of law and is one of some difficulty. What we have to decide is whether the existence of a question of law of some difficulty for decision is a sufficient ground for certifying the case to be a 'fit one' for appeal to His Majesty in Council as required by Section 109 (c), Civil P.C. What class of cases would fall within this clause has been considered by the Privy Council in some cases. In Banarsi Prasad v. Kashi Krishna Narain [1901] 23 All 227 it was pointed out by Lord Hobhouse that this clause

is clearly intended to meet special cases; such for example, as those in which the point in dispute is not measurable by money, though it may be of great public or private importance.

5. In a later case, Radhakrishna Ayyar v. Swaminatha Ayyar A.I.R. 1921 P.C. 25, the Judicial Committee pointed out that this clause contemplated

cases in which it is impossible to define in money value the exact character of the dispute; there are questions, as for example, those relating to religious rites and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money,

6. It is admitted that the point in dispute is not of any public importance. Is it then of any private importance? I think not. The question is in what circumstances a case may be said to be a fit one in which certificate may be granted for leave to appeal to the Privy Council under Section 109 (c), Civil P. C., has arisen for decision in various eases in this Court and most of them have been brought to our notice. These are Raghunatha Thathachariar v. Tiruvengada Chariar [1915] 31 I.C. 46, Raja Rajeswara Sethupathi v. Kamaith Ravuthan A.I.R. 1922 Mad. 34, Alagappa Chatty v. Nachiappan : AIR1928Mad125 Raja Rajeswara Sethupathi v. Tiruneelakantam Servai A.I.R. 1923 Mad. 232 and Kesava Mudali v. Govindachari A.I.R. 1924 Mad. 231. It is not necessary to discuss these cases in detail. In most of them the learned Judges have pointed out when a case can be said to be of private importance. I do not think that any one of these cases, except perhaps Raja Rajeswara Sethupathi v. Kamaith Ravuthan would justify the argument that the mere existence of a substantial question of law is by itself sufficient to give the High Court jurisdiction to give leave to appeal under Clause (c), Section 109, Civil P. C. In Raja Rajeswara Sethupathi v. Kamaith Ravuthan strongly relied on by Mr. Varadachariar. the decision no doubt turned upon the meaning of Section 12, Madras Estates Land Act, a question of law but the learned Judges observed that the decision was

likely to have very serious and tar reaching consequences in the Ramnad Zamindari, seeing that other Courts in that district will follow it in dealing with disputes as to the rent payable for trees and as to the right of ryots to take the' timber of growing trees. Looked at from this point of view, the right in dispute is not exactly measurable in money but is of great private importance.

7. We are not called upon to consider whether the learned Judges' view that the particular case before them was one of private importance is correct. It is true that in one of the cases on which they relied in support of their conclusion, Anant Ram v. Raja Sheoraj Singh [1913] 18 I.C. 305 the Allahabad High Court certified the case as a fit one for leave to the Privy Council though it involved only pure questions of law; but the learned Judges make it very clear that these questions of law were 'substantial questions of law of general importance.' It seems to me that the decision in the case before us is not likely to affect any large number of persons; nor is it likely to be a precedent governing numerous other cases. In this case defendant 16 lent the money though he obtained an agreement in his favour before the loan was given with the full knowledge that the person claiming the property had instituted a suit with reference to it. It is not likely that many persons will lend money to mortgagors in circumstances like those present in this case and I do not think occasions will arise very frequently for applying the decision in tins case as a precedent. In my opinion the question raised in this case is not one of any general interest or of local or public importance and is therefore not a fit one for granting leave to appeal to the Privy Council under Section 109 (c), Civil P. C. This petition is dismissed with costs.

Venkatasubba Rao, J.

8. As my learned brother was a member of the Bench that decided the appeal and I was not, I yield to what he says and will not differ from him, although my inclination is the other way.


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