SM GANGAMONI DEVI Vs. KUMUD CHANDRA MAZUMDAR

JUDGEMENT

(1.) This is an application for leave to appeal to the Supreme Court, and the main question for decision is whether the appeal involves some substantial question of law within the meaning of para. 3 of Section 110. Civil P. C.

(2.) The facts look, at first sight, somewhat complicated, but when stated clearly in chronological order, do not present any serious difficulty with regard to the questions raised. One Ramdayal Mazumdar took a lease of under-ground rights in nine annas share of village Kusunda from the proprietor, the Raja of Katras, by a registered lease dated 1st Agrahayan 1301 E. S. corresponding to the year 1834. This Ramdayal Mazumdar was the ancestor and predecesaor-in-interest of the plaintiffs to the action, out of which this application has arisen. Ramdayal Mazumdar granted a sub-lease of his interest to Raja Durga Prasad Singh of Jharia by a registered document dated 26th chait 1311 B. S. corresponding to 1905. For the sake of convenience, this lease of 1311 B. S. in favour of Raja Durga Prasad Singh of Jharia will be called the head lease. One of the terms of this head lease was that the annual minimum royalty reserved, viz., a sum of Rs. 900 would be paid in four equal instalments. Raja Darga Prasad Singh of Jharia, in his turn, assigned his interest to one C. J Smith by a deed of assignment dated 15th Baisakh 1314 B. S. which would correspond to 1907. In 1914, Ramdayal Mazumdar sued Raja Durga Prasad Singh and his assignee, C. J. Smith, for royalty due for the period 1318 B. S. to Aswin 1321 B. S. This suit was compromised, and the terms of compromise, as embodied in the decree, stated :

(3.) In accordance with the aforesaid compromise and in execution of the decree passed in terms of the compromise a document was executed on behalf of Mr. Smith by the Court on 27th April 1918, in Execution Case no. 94 of 1917. On 4th February 1920, Mr. Smith executed an English mortgage in respect of the leasehold property in favour of a company known as the Jagadamba Loan Company, Limited (hereinafter to be referred to as the Loan Company), to secure a sum of Rs. 3 lacs advanced by the Loan Company to Mr. Smith. Thereafter, the Loan Company came in possession of the leasehold property, but under the terms of the mortgage, the mortgagor remained liable to pay all rents, royalties, etc, for the leasehold property. In the year 1929, the plaintiffs, successors-in-interest of Ramdayal Mazumdar, instituted a suit against the heirs and legal representatives of Mr. Smith for recovery of royalty up to 1338 B. s. by enforcing the charge on the lease, hold property for the payment of the said rent. The Loan Company was not made a party to this litigation. A decree was obtained, and in execution of the decree the leasehold property was put up to sale, and purchased by one Saroj Basini Debi on 12th November 1931. This Saroj Basini Debi was defendant 1 to the action, out of which this application has arisen. On 31st March 1938, the Loan Company assigned their interest to one Smt. Umarani Debi On 26th September 1938, Smt. Umarani Debi transferred her interest to Smt. Gangamoni Debi, defendant 2 to the action and appellant in the High Court (now petitioner before us). On behalf of the petitioner it is stated that Smt. Umarani Debi acquired from the Loan Company the interest as mortgagee as well as the interest which the Loan Company had acquired by paying up Saroj Basini Debi and Smt. Umarani Debi transferred her mortgage interest to Smt. Gangamoni Debi, but not the other interest. In 1945, the plaintiffs brought the action, out of which this application has arisen, against Saroj Basini Debi, defendant 1, and Gangamoni Debi, defendant 2, for recovery of minimum royalty or rent for the years 1344 B. S. to Poos kist of 1351 B. S. by enforcing the charge against the leasehold property. This suit was valued at Rs. 9469 and odd annas, being the amount of royalty claimed with interest thereon. It was contested by the present petitioner, Gaugamoni Debi, and her principal defence was that she held the property as a mortgagee, and was not, therefore, liable for rent or royalty there being neither privity of estate nor privity of contract between herself and the plaintiffs.