WIQAR ALI KHAN Vs. NARAIN DAS LALA RAHUMAL

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council under Secs.109 and 110, Civil P.C. The application prays that the applicant has a right to appeal. The facts are that the plaintiff, Narain Das, brought a suit for enforcement of a mortgage executed by defendant 1, Nanabhoy and the suit was brought against defendant 1 and defendant 2, Wiqar Ali Khan, Vakil, as administrators of the property of the deceased father of defendant 1. The trial Court granted a decree on the mortgage. Wiqar Ali Khan appealed and the main question was whether the mortgage was valid. In first appeal this Court held that the mortgage was valid but the amount of interest was reduced from 15 per cent, to 12 per cent, in favour of the appellant the cross-objections were dismissed. The decree therefore was varied in favour of the appellant but the amount of variation was loss than Rs. 10,000. In the proposed appeal it is desired to raise the question of the validity of the mortgage. That is an issue on which the findings of the two Courts were concurrent Learned Counsel relies on the ruling of their Lordships of the Privy Council, reported in Annapurnabai V/s. Ruprao . In that case the plaintiff sued for possession of half the estate of a deceased person alleging adoption. The defendants who were widows contested the validity of the adoption and one of the defendants claimed to be entitled to Rs. 3000 per annum as widow's maintenance, in case the adoption was held valid. The Court of first instance decreed the suit of the plaintiff and decreed Rs. 800 per annum maintenance to the widow. On appeal the Court of the Judicial Commissioner maintained the decree for possession of the plaintiff but increased the claim for maintenance of the defendant widow appellant from Rs. 800 to Rs. 1200 per annum. An application was made to the Court of the Judicial Commissioner for leave to appeal to the Privy Council but the application was dismissed on the ground that the decree of the first Court had been affirmed except in respect of a small charge in favour of one of the applicants and that no question of law was involved. An application for special leave was then made to their Lordships and it was stated by the applicants counsel on p. 971: The value of the subject-matter of the suit exceeded Rs. 10,000, as also did the subject-matter of the proposed appeal; even if the maintenance alone is regarded as in dispute, its value having, regard to the widow's prospects of life, exceeded Rs. 10,000 the Appellate Court did not affirm the decree of the first Court but varied it; consequently, it is not material under Section 110 whether any substantial question of law is involved. Having regard to the concurrent findings, the petitioners desire to appeal only with regard to the amount of the maintenance.

(2.) On this their Lordships held: In the opinion of their Lordships the contention of the petitioners counsel as to the effect of Section 110 of the Code is correct. They had therefore a right of appeal; special leave to appeal should be granted, but should be limited to the question of maintenance.

(3.) Now it is to be noted that the special leave to appeal was limited to the question of maintenance. Learned Counsel argues that this limitation was imposed solely at the request of counsel for the applicants. We do not think that this can be deduced from the ruling. It appears to us that their Lordships imposed this restriction because they considered that it should be imposed. The case therefore is no authority for the present application in which the applicant desires to raise a question on which there have boon concurrent findings by the two Court. Moreover, in the present case, the question of interest is not of sufficient value to amount to Rs. 10,000 and therefore leave Ito appeal on the question of interest alone could not be granted. The argument of learned Counsel was that from certain observations in Full Bench rulings of this Court an opinion had been expressed that the Privy Council overruled a Bench ruling of this Court in Annapurnabai V/s. Ruprao was intended to overrule the decision in Kamal Nath v. Bithal Das (1922) 9 A.I.R. All. 89. One further point was argued and that was that if an appeal did not lie as of right under Section 110, Civil P.C., still there was a substantial question of law. The substantial question of law is alleged to be in ground No. 3: Because the deed in suit having been executed by defendant 1 in his personal capacity was not binding on the estate.