MATHURA KURMI Vs. JAGDEO SINGH

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council against the decree of a Bench of this Court in First Appeal No. 459 of 1.923, decided on the 21 December, 1926. The appeal was dismissed and the decree of the trial Court was affirmed. The value of the subject-matter in the first Court was over Rs. 10,000 and the value of the subject-matter of the proposed appeal to His Majesty is also above that sum. But we are asked to certify that the case fulfills the conditions of Section 110, Civil P.C., on the ground that the appeal involves a substantial question of law, or, in the alternative, to certify that it is otherwise a fit case for appeal.

(2.) The question which arose for decision in the Court below and in this Court was with regard to the legal relation of the parties arising out of the execution of three documents executed on the 22 May, 1915. The case for the plaintiffs was that they were mortgagors and that the defendant, Mathura Kurmi, was their mortgagee. The defendant's case was that he was the purchaser of the property in dispute subject to an option of re-purchase of which the plaintiffs had failed to take advantage.

(3.) The decision of the trial Court, affirmed in this Court, was that the three documents were evidence of a single transaction, namely, a mortgage by conditional sale, and that the plaintiffs were entitled to recover the property by redemption. As is pointed out in the judgments delivered in this Court, cases of this nature are frequently brought before the Courts in India, and many of them have been taken in appeal to His Majesty in Council. We may refer in particular to the following three cases: