JHANDU SINGH Vs. WAHIUDDIN

JUDGEMENT

(1.) JHANDA Singh has brought the present petition praying that a certificate under Rule 3, Order XLV, be granted to him. Notice has been issued to the other side to show cause why such a certificate should not be granted and the petition has been strongly opposed in this Court. The subject-matter of the suit was in this Court over Rs. 10,000 in value and the subject-matter in dispute in the appeal to His Majesty in Council is also over Rs. 10,000. The decree of this Court affirmed the decree of the Court below and we have, therefore, to see whether this appeal involves a substantial question of law. The case before this Court will be found reported as JHANDA Singh v. Wahid-ud-din 33 A. 585 : 9 Ind. Cas. 1013 : 8 A.L.J. 389. The question that the learned Judges of this Court had to consider was, whether the deeds before them in this case were, or were not, deeds constituting a mortgage by conditional sale. That the case was considered by this Court to be as a case of importance is evident from the fact that it was laid before a Bench of three Judges. The Judges who heard the case in this Court differed. There was an appeal under the Letters Patent and three Judges then came unanimously to the opinion that the deeds constituted a mortgage by conditional sale and an agreement to re-purchase. It was contended on behalf of the respondent that no substantial question of law is involved and that no certificate should in consequence be granted. In fact, an attempt was made to have it considered that there is nothing in this case except a question of fact. To this view, we do not agree. The question raised is a very important question. It will be found on reference to Balkishen v. Legge 22 A. 149 : 27 I.A. 58 : 4 C.W.N. 153 that thier Lordships of the Privy Council held that the question there involved "was a question which had to be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts." Within the last two years, owing to the provision of Act IX of 1908, a considerable number of old mortgage-deeds have been brought up before the Courts for consideration and the question raised in this case is sure to arise in several others. The decision, therefore, will have afar reaching effect. For these reasons, we certify that this case fulfils the requirements of Section 110 of the Civil Procedure Code of 1908.