BIRENDRA NATH BANERJEE Vs. SHIBARAM ADITYA

JUDGEMENT

(1.) This is an application for leave to appeal to the Supreme Court by the plaintiffs in a suit which they have lost both in the trial Court and in first appeal. The judgment is thus one of affirmance. There is no question that the value of the subject-matter in dispute before the Court of first instance and in dispute in the proposed appeal exceeds Rs. 20,000/-. The only question therefore is whether the proposed appeal involves any substantial question of law.

(2.) On that point, fortunately, even the respondents agree that the points involved in the appeal are all points of law and at least two of them are certainly substantial. It appears that the properties in question belonged originally to one Sureiidra Nath Mookerjee who died, leaving him surviving a widow named Rakhal Dasi Debi and a daughter named Sin. Avistakarini Debi & five grandsons, who are sons of Avistakarini & who are the plaintiffs in the suit out of which the present appeal arises. Avistakarini propounded a will, said to have been left by her father, Surendra Nath Mokerjee, by which the entire estate was left to her. Probate in respect of the will was granted by the Court of first instance, but on appeal the High Court held the will to be a piece of forgery. Thereafter, an appeal was preferred to the Privy Council by Avistakarini and while that appeal was pending, the parties settled the dispute between themselves by means of two documents. By one of those documents Rakhal Dasi relinquished her claim to the properties on receipt of a monthly maintenance and by another Avistakarini seems to have got an absolute title to the properties concerned. The principal question involved in the appeal is whether the properties could be dealt with in that manner by Avistakarini and Rakhal Desi with the effect of the arrangement being binding upon the plaintiffs, as reversioners. This undoubtedly is a substantial question of law and the respondents agree that it is.

(3.) There is a further question, also of great importance, which affects only respondents Nos. 1, 1(a), and 1(b). They are mortgagees and it appears that the mortgage loan was taken from them to pay off an earlier mortgage. That earlier mortgage had not been contracted for any legal necessity and the question was whether the later mortgage could be regarded as one justified by legal necessity, even though the earlier mortgage could not be said to be so justified. The trial Court held that since the first mortgage could not be defended on the ground of legal necessity, the second mortgage failed with it. But the High Court held that what was required was pressure on the estate and it was immaterial what caused the pressure, so long as the mortgagees of the second mortgage were not in any way responsible for or parties to the first mortgage. It is admitted that this question also is a substantial question of law. In our opinion the case satisfies the requirements of Article 133, Clauses (a) and (b) of the Constitution as also the same clauses of Section 110, Civil P.C., and accordingly the petitioners are entitled to the certificate they ask for.