MUSAMMAT RADHA KUMVAR Vs. THAKUR REOTI SINGH

JUDGEMENT

(1.) It is always to be regretted when an appeal is disposed of on a preliminary point, and the parties are compelled, after having incurred considerable expense, to leave this Board without a determination of the real merits of their dispute. But in this case their Lordships feel that they have no choice in the matter, and that they are bound to advise His Majesty that the preliminary point raised must prevail.

(2.) The facts of this case are these : In 1884 a mortgage was executed of certain property for a sum of 2,000 rupees, with interest at 12 percent. On the 30th November, 1909, the persons who were entitled to the benefit of that mortgage took proceedings in order to have it enforced. They claimed that the amount due upon the mortgage was 38,494 rupees, and they asked for an order for payment of that sum. against the defendants, and a sale of the property. They made, as parties to that suit, not merely the people who claimed under the mortgagors, but also certain people who had set up adverse claims to the mortgaged property, among whom the appellant was one. Their Lordships think that this joinder of these parties was irregular, and that it could only, tend to confusion.

(3.) What followed was this: The present appellant, who claimed through a person named Hukum Singh, said that she was entitled to four biswas of the property. That dispute was entirely independent of the mortgage transaction of 1884. Whatever the amount of that mortgage might be, in no circumstances could the appellant have been made responsible for it. If it had been held that her claim was good the mortgagor would have completely failed, so far as her share o the estate was concerned : if it had been held that her claim was bad she could have had no right whatever to redeem the mortgage. The cause, however, proceeded without any objection being taken, and, in the end, on the 8th June, 1909, a decree was made by the Subordinate Judge, in which he declared that the appellant was entitled to one-half of the four biswas which had been set up as her original claim. From that decree an appeal was taken to the High Court, and, on the 14th November, 1910, the High Court decided that the appellant had no title at all. The result was that as to one-half there were concurrent findings both of the Subordinate Judge and of the High Court that the appellant had no claim, and as to one-half there were differing judgments. The appellant accordingly sought to obtain leave to appeal to His Majesty in Council from the judgment of the High Court, and for that purpose it was essential that she should satisfy the condition of Section no of the Civil Procedure Code of 1908. That section provides that an appeal can only be allowed in certain cases where the amount or value of the subject matter of the suit in the Court of First Instance was 10,000 rupees, or upwards, " and the amount or value of the subject matter in dispute on appeal to His Majesty in Council must be the same sum or upwards."