ISA ADAM Vs. BAI MARIAM

JUDGEMENT

(1.) In this suit the real point in dispute between the parties is as to the true effect of the Meher sale-deed of July 20, 1918, Exhibit 21. The suit is brought by the plaintiff against her father-in-law, her mother-in-law and her husband, to recover possession of the property comprised in the sale-deed. The defence is that, by a custom of the Ghanchi community of Godhra to which the parties belong, this Meher sale-deed, although some of its terms may purport to amount to an absolute conveyance, in fact, is only held a security for the dower payable to the plaintiff in two events, neither of which has happened, viz., in the event of her being divorced, and in the event of the death of her husband.

(2.) There were, accordingly, two preliminary issues raised : "(1) What is the market value of the property in question ?" That has been found by the learned Judge to be Rs. 10,000, whereas the amount of the dower as stated in Exhibit 20 was Rs. 4,500. Then the second preliminary issue with which we are concerned is: "Can the defendants be allowed to prove by oral evidence any separate agreement or understanding for the purpose of contradicting, varying, adding to or subtracting from the terms of the sale-deed ?" That issue, whatever objection may be taken to its precise terms, was intended to raise the defence I have already alluded to, viz., that the document must be taken as a security only for a contingent event which has not happened. The learned Judge decided that the evidence which was tendered in support of this defence was inadmissible under the Indian Evidence Act, and, accordingly, he decided issue No. 2 in the negative.

(3.) The defendants now apply to us in revision, and a preliminary objection is raised that no such revision lies having regard to Section 115 (c) of the Civil Procedure Code. It will be seen that in effect the defendants are asking us to interfere half way through the suit with an interlocutory order, and one which merely decides whether certain evidence is admissible or inadmissible. The effect of Section 115 has been considered by their Lordships of the Privy Council in two cases in particular, one in Rajah Amir Hassan Khan V/s. Sheo Baksh Singh (1884) L.R. 11 I.A. 237. s.c. 19 Bom. L.R. 715. and another in Balakrishna Udayar V/s. Vasudeva Aiyar (1917) L.R. 44 I.A. 261. Taking the latter case as being the latest, the judgment of their Lordships as delivered by Lord Atkinson sets out the matter perfectly clearly, viz. (p. 267)- As to the preliminary objection. Section 115 of the Civil Procedure Code enables the High Court, in a case in which no appeal lies, to call for the record of any case if the Court by which the case was decided appears to have acted in the exercise of a jurisdiction not vested in it by law, or to have failed to have exercised a jurisdiction vested in it, or to have exercised its jurisdiction illegally or with material irregularity, and further enables it to pass such an order in the case as the Court may think fit. It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.