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 21st 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 22nd 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:
4. Balkishen Das v. Legge [1899] 22 All. 149, Jhanda Singh v. Wahiduddin A.I.R. 1916 P.C. 49 and Narasingerji v. Parthasaradhi Rayanim Garu A.I.R. 1924 P.C. 226. It has been settled definitely that the test to be applied in such cases is the intention of the parties at the date of the transaction which has to be construed and the decisions lay down the various matters which may legitimately be considered by the Courts in order to determine what the intention of the parties was. Intention is a matter of fact and not of law and where, as in the case now before us, both Courts find that the parties stand in the relation of mortgagor and mortgagee, the finding is one of fact, namely, that on the date on which the parties entered into the transaction their intention was to constitute that relation between themselves.
5. If it be admitted, however, that the question is not one of pure fact because the decision involves the construction of legal documents, the point remains whether any question of law is raised which can be deemed to be a substantial question. Obviously any question of law arising upon the interpretation of the documents considered in this case is not substantial in the sense of being a question of general interest: it is of importance only to the present parties. But, in view of a recent decision of their Lordships, it is contended that a question of law, in order to be substantial, need not be a question of general interest: it may still be substantial although it concerns only the parties to the litigation. And so it is sought to be argued that we have here a question of substance because, it is suggested, that the tests and principles of interpretation prescribed by the Privy Council have not been correctly applied to the facts.
6. We are not prepared to hold that for this reason the question of law between the parties here, assuming it to arise at all, is a substantial question. It is not made to appear that the appeal, if allowed to proceed, could furnish an occasion for the discussion or enunciation of any fresh legal principle. The matter has been agitated time and again before their Lordships who have repeatedly laid down the law in the sense indicated above. In these circumstances we do not think that the application of well defend legal principles to a particular set of facts raises any question of law which can fairly be described as substantial. The case does not, in our opinion, fulfill the requirements of Section 110, Civil P.C., Nor is it a case which we could certify as being otherwise fit for appeal to His Majesty. We dismiss the application with costs.