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BepIn Krishna Roy and ors. Vs. Priyabrata Bose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal387,71Ind.Cas.371
AppellantBepIn Krishna Roy and ors.
RespondentPriyabrata Bose and ors.
Cases ReferredRadha Kunwar v. Reoti Singh
Excerpt:
civil procedure code (act v of 1908), section 110 - privy council appeal--application for leave--value of subject-matter on appeal--suit for rectification of mortgage-decree--substantial question of law. - .....there is a substantial question of law involved; and, secondly, that the amount or value 4 of the subject-matter in dispute in the suit and the amount or value of the subject-matter in dispute on appeal to his majesty in council is rupees ten thousand or upwards.5. in my judgment, there is a substantial question of law involved and that point has not been really disputed by the learned vakil for the respondent and, therefore, it is not necessary to enter into detail as to what appears to be a substantial question of law. it is sufficient for the to point out one respect, in which there appears to be a substantial question of law. it is whether the plaintiffs as against defendant no. 8 were entitled to have the mortgage-deed and the decree rectified having regard to the circumstances of.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an application by defendant No. 8 for a certificate that this is a fit case for appeal to the Judicial Committee of the Privy Council.

2. The original suit was a mortgage suit in respect of a certain property which was described as Touzi No. 93, and the applicant, as I understand, was not a party to it. When the decree had been obtained and indeed, as I understand, when the property had been brought to sale, it was alleged by the mortgagee that there had been a mistake in the description of the property, and, consequently, in the mortgage-decree the property had been wrongly described as Touzi No. 93. The mortgagor had, we are informed, a share in Touzi No. 93 and a 2-annas 4-gandas share in Touzi No. 93A. The result was that the present suit was instituted and the defendant No. 8 was made a party, it being alleged by the plaintiff that, after the date of the mortgage, the defendant No. 8 had purchased the mortgagee's share in Touzi No. 93A with full knowledge of the mortgage and with full knowledge of the mistake which had occurred.

3. The plaintiffs, however, in paragraph 9 of the plaint, after alleging that the kobala of defendant No. 8 was a collusive and fraudulent document, alleged that, in order to 'give an opportunity to redeem in the case, should the Court find his purchase to be real, they bad impleaded him as a defendant in this suit.'

4. The learned Subordinate Judge came to the conclusion that the property had been wrongly described and directed that the description should be rectified. Then there was an appeal by defendant No. 8 to this Court and this Court held that the judgment of the lower Court was correct and dismissed the appeal. Consequently, the defendant No. 8 has applied for leave to appeal to the Judicial Committee of the Privy Council. Inasmuch as the judgment of this Court affirmed the decision of the learned Subordinate Judge, it is necessary for the applicant to show two things, firstly, that there is a substantial question of law involved; and, secondly, that the amount or value 4 of the subject-matter in dispute in the suit and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council is Rupees ten thousand or upwards.

5. In my judgment, there is a substantial question of law involved and that point has not been really disputed by the learned Vakil for the respondent and, therefore, it is not necessary to enter into detail as to what appears to be a substantial question of law. It is sufficient for the to point out one respect, in which there appears to be a substantial question of law. It is whether the plaintiffs as against defendant No. 8 were entitled to have the mortgage-deed and the decree rectified having regard to the circumstances of the case.

6. The matter which has been hotly contested on this application is, whether the subject-matter in dispute in the appeal to His Majesty in Council is of the value of Rs. 10,000 or upwards. There was a reference to the lower Court for an enquiry into the valuation of 2-annas 4-gandas share of the property, Touzi No. 93A, free from encumbrances as on the 27th February 1914 and 14th June 1921 and the learned Subordinate Judge has reported that the value of the 2-annas and 4-gandas of Touzi No. 93A did not exceed Rs. 7,425 on the 27th February 1914 and Rs. 8,910 on the 14th June 1921. Consequently, if the matter depended upon that report, the petitioner would not have succeeded in fulfilling the second condition which is necessary before leave can be granted. The learned Vakil for the petitioner has based his argument upon another ground and it is this. He drew our attention to the plaint. I have already referred to the passage in paragraph 9 and the reliefs asked for therein. In short, his argument was, that defendant No. 8 was, for all intents and purposes, in the same position as the mortgagor and it is conceded, or rather it is not seriously disputed, that if this application had been made by the mortgagor the value would have been sufficient to comply with the provisions of section no of the Code of Civil Procedure, because the amount claimed at the date of the suit was Rs. 9,988 to which must be added the subsequent interest. This, if calculated to the present time, it was urged, would bring the amount or value of the subject-matter in dispute considerably over Rs. 10,000. On the other hand, it is argued by the learned Vakil for the respondents that the amount or value of the subject-matter in dispute ought to be decided with reference to the market-value of the 2-annas 4-gandas share in Touzi No. 93A, and he relied upon the case of Radha Kunwar v. Thakur Reoti Singh 35 Ind. Cas. 939 : 38 A. 483 : 14 A.L.J. 1002 : 20 C.W.N. 1279 : 20 M.L.T. 211 : (1916) 2 M.W.N. 200 : 31 M.L.J. 71 : 18 Bom. L.R. 850 : 24 C.L.J. 303 : 5 L.W. 456 : 43 I.A. 264 (P.C.), which was decided by the Judicial Committee of the Privy Council.

7. It seems to me that there is a distinction between the case which we have now to deal with and the reported case. In the reported case the appellant was claiming as her property 4-biswas share which the mortgagees stated were included in their mortgage and the Lord Chancellor in delivering the judgment pointed out, 'the present appellant, who claimed through a person named Hukum Singh, said that she was entitled to 4-biswas of the property. That dispute was entirely independent of the mortgage transaction of 1884.' Later on, the Lord Chancellor pointed out that, 'The subject-matter of the dispute was simply the value of the property which the appellant claimed, and it was quite immaterial for that purpose what the value of the mortgage might be. As has already been pointed out, the appellant could, under no circumstances, have been made responsible for the amount of the mortgage, nor could its extent, in any way whatever, have in the least degree varied her rights.'

8. It seems to me impossible to say in this case that the plaintiff's claim against defendant No. 8 was quite distinct from the mortgage transaction, having regard to the way in which the pontiffs have framed the suit, and having regard to the reliefs which they themselves asked for in the plaint. For these reasons, the present case seems to me to be different from the case decided by the Judicial Committee of the Privy Council. I am of opinion that it has been made out in this case that the amount or value of the subject-matter in dispute on appeal to His Majesty in Council is Rupees ten thousand or upwards, and, inasmuch as there is a substantial question of law, a certificate will be granted.

Ghose, J.

9. I am of the same opinion. The plaintiff asked for enforcement of his mortgage and valued his claim at Rs. 9,998 odd which, with the subsequent interest, would come up to more than Rs. 10,000, It is not contested by the respondent that that would make the amount of the subject-matter of the suit over Rs. 10,000. The decree of the High Court is also for an amount exceeding Rs. 10,000. It is, however, contended on behalf of the respondent that the value of the subject-matter of the appeal by defendant No. 8 would not come to Rs. 10,000, as the value of the property mortgaged is less than Rs. 10,000, and he relies upon the case of Radha Kunwar v. Reoti Singh 35 Ind. Cas. 939 : 38 A. 483 : 14 A.L.J. 1002 : 20 C.W.N. 1279 : 20 M.L.T. 211 : (1916) 2 M.W.N. 200 : 31 M.L.J. 71 : 18 Bom. L.R. 850 : 24 C.L.J. 303 : 5 L.W. 456 : 43 I.A. 264 (P.C.) in support of his contention that, in such a case as this, the value of the property is to be taken into account in the matter of granting leave to appeal in England.

10. In the reported case the appellant in England claimed by title paramount in a suit that was brought by the mortgagee. In that case the appellant in England ought not to have been joined as a party defendant. As was pointed out by the Lord Chancellor that, as the defendant claimed by title paramount, it was really a combined suit brought by the mortgagee against the mortgagor for enforcement of his mortgage and for a declaration of title of the mortgagor against a third person and that third person appealed against the decree of the High Court with regard, to his right to the portion of the property he claimed. Consequently, the value of his appeal was not the amount of the mortgage-money but simply the market-value of the property which he claimed in his own right against the mortgagor and mortgagee. He could not, under any circumstances, be held liable for the mortgage-money nor could he have claimed any right to redeem the mortgage. Here the case is quite different. The plaintiff made the defendant No. 8 a party on the ground that he was a purchaser of the equity of redemption, though he said the purchase was not a real and bona fide transaction. As purchaser of the equity of redemption he was a necessary party and the defence that this defendant took was one which was open to the mortgagor. This defendant did not claim the property as against the mortgagor, but what he said was, that the mortgagor did not pledge this property under the mortgage but it was some oilier property, and his own particular defence was to the effect that, as he had purchased this property bona fide and without notice of the alleged mistake in the mortgage-decree, the property in his hands was not liable for the mortgage-debt. That is not claiming by a paramount title and, although the value of the mortgaged property was less than Rs. 10,000, if the defendant redeems this property, which he is entitled to do, he would have to pay more than Rs. 10,000 to the mortgagee.

11. It seems to me, therefore, that the amount or value of the subject-matter of the suit as well as the final decree is over Rs. 10,000.

12. As the judgment is one of affirmance, the appeal must involve some substantial question of law. As regards that point it was not seriously contended by the respondent that the appeal did not involve some substantial question of law and, in my judgment, the question whether the previous decree can be rectified by a subsequent suit in the circumstances of this case, is a substantial question of law.


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