Kondaji Bagaji And Ors. vs Anau Widow Of Ranuji And Anr. on 12 July, 1883

Bombay High Court
Kondaji Bagaji And Ors. vs Anau Widow Of Ranuji And Anr. on 12 July, 1883
Equivalent citations: (1883) ILR 7 Bom 448
Author: West
Bench: West, N Haridas


West, J.

1. The original mortgage in this case was made in A.D. 1784. By the document No. 39, which the Subordinate Judge at first pronounced a forgery, but has now found genuine, the mortgage was recognized as existing in 1824 Again, in 1857, the document No. 18 refers to the mortgage as existing, and this document, too, overlooked in the first investigation, or not referred to in the judgment, the Subordinate Judge has now held proved. Thus, the mortgage, though it would, according to its own literal terms, have become a sale in 1794, has been kept alive by the subsequent acknowledgments, so as to prevent any bar by limitation of the present suit for redemption.

2. The sum originally secured by the mortgage was Rs. 166. By the document No. 39, Bagaji, father of Kondaji, a defendant in this case, not only acknowledges the existence of a mortgage, but also a reduction of the amount due on it from Rs. 166 to Rs. 24. The plaintiffs, Ranuji’s widows, brought this suit to redeem the mortgage in 1880. They were obviously not then barred by limitation, unless we should pronounce the Subordinate Judge wholly wrong as to the documents Nos. 39 and 18, and we do not feel at liberty, in a case under the extraordinary jurisdiction, to review his appreciation of the evidence.

3. The Subordinate Judge, however, it is said, wrongly applied, chapter II of Act XVII of 1879 to this case, and the Special Judge afterwards in reviewing it acted without jurisdiction. The original amount of the mortgage, as already observed, was Rs. 166. The suit was brought as on a loan of Rs. 24. This is accounted for by the fact that the plaintiffs had no information to guide them, except the document No. 39; and, judging solely by that, they might very well suppose that no-more than Rs. 24 was the real amount of the mortgage, and that its date was 1824. It may be a question whether the valuation of a suit for jurisdictional purposes ought to be governed by any rules of an arbitrary kind for regulating court fees and the like. The Court Fees’ Act no doubt says that in a suit for redemption the amount originally advanced shall, for the purposes of the Act, determine the valuation of the suit; but in Cotterell v. Stratton L.R. 17q at p. 545 Malins V.C. says the proper valuation of a suit for redemption is the amount remaining due on the mortgage, or claimed on it by the mortgagee. Hence, the mere fact that the original loan was more than Rs. 100 would not necessarily exclude the Subordinate Judge’s dealing with the case under chapter II of Act XVII of 1879 even if it were a case of jurisdiction depending on the value. But it was not that; but rather the application of a particular mode of procedure where there was a general jurisdiction of the subject-matter. In such a case the remarks and the reference made by the Judicial Committee in the Pillais’ case L.R.,21. A. at p. 233 show that a highly irregular proceeding where there is jurisdiction may be cured by agreement or even by acquiescence. In the case of Revell v. Blake L.R. 8 C.P. 533 a County Court on a misstatement (without fraud) of a creditor exercised a jurisdiction, which, if it had known the truth, it could, not have exercised. Its proceedings were pronounced valid, Hence, even where jurisdiction depends on particular facts stated, the proceedings will not be null through a mere error in stating the facts so as to found the jurisdiction, though they will be voided probably by fraud, or at any rate will be voidable against him who has practised it.

4. It follows that an application of chapter II of Act XVII of 1879, which would be illegal and wrong if the Subordinate Judge knew the subject-matter was of more than Rs. 100 value, may be sustained if he was led into applying it by honest misinformation. It does not appear, in the present case, that there was any fraudulent misrepresentation. Even if. Rs. 24 did not represent the value of the subject-matter, the plaintiffs and the Subordinate Judge might reasonably suppose it did, and the investigation having been made under chapter II might stand, even though in the end it should come out that the value ought to have been computed at more than Rs. 100. Here the sum found actually due was nothing; the mortgage had been more than paid off. The defendants had not either informed the plaintiffs of what they had to pay, or told the Court that the value of the subject-master exceeded Rs. 100. They must, therefore, be taken to have acquiesced in the Subordinate Judge’s proceeding under Chapter II, and are bound by it.

5. As the proceeding under chapter II is thus justified, the revisional proceedings of the Special Judge cannot be held to have been without jurisdiction. He ordered a re-trial, and this has been held with a result contrary to the one before arrived at, but not, therefore, necessarily wrong. The admission of a single member’s acknowledgment made in 1857 as binding the family might be questioned on some of the decisions and supported on others; but the acknowledgment of Bagaji, No. 39, binds all his sons, and was made within sixty years of the institution of the suit.

6. We, therefore, discharge the rule with costs.

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