REOTI SINGH Vs. RADHA KUNWAR

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 Rs. 2,000, with interest at 12 per cent. On the 20th of 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 Rs. 38,494, and they asked for an order for payment of that sum against the defendant 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 Huknm Singh, said that she was entitled to 4 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 mortgagee would have completely failed, so far as her share of 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 of June, 1910, a decree was made by the Subordinate Judge in which he declared that the appellant was entitled to one-half of the 4 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 of 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 judgements. 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 110 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 Rs. 10,000, 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."