JUDGMENT
1. This appeal arises out of a suit for sale on a mortgage executed by two Muhammadan ladies in favour of the plaintiff for a sum of Rs. 50. The first of these ladies did not defend and the second is dead and is represented by her daughter, the defendant No. 2, Her main defence to the suit was that no consideration passed, but that if it did, the money was paid to the first defendant and not to the second defendant's mother. The Court of first instance on the pleadings framed two issues only: (1) Is the deed in question a mortgage deed ? If so, is it valid and for consideration.? Are the defendants bound by it? and (2) To what relief, if any, is the plaintiff entitled ?
2. Evidence was led on these issues and in the result the Trial Court decreed the plaintiff's suit as brought. The defendant appealed and attacked all the findings of the First Court and for the first time pleaded that Musammat Sarwarunnissa was a pardanashin lady and that it had not been shown whether she had independent advice about the deed or not. The Appellate Court upheld all the findings of the First Court, but on this new ground of appeal it held that Musammat Sarwarunnissa was a pardanashin lady and that it bad not been shown by the plaintiff that she had independent advice before executing the deed, and on this ground it allowed the appeal and dismissed the plaintiff's suit. This was purely a question of fact and it could not be decided without evidence having been taken. On appeal before us it is contended that it was not open to the lower Appellate Court to allow this point to be raised, as it had not been raised in the pleadings and ho evidence whatsoever had been given by either party on the point. It appears from an affidavit which has been filed in this Court and which is not challenged that on the appeal coming on for bearing and arguments before the lower Appellate Court objection was taken on behalf of the plaintiff respondent to the hearing of this new plea, but nevertheless arguments were heard and the Judge has based his decision on this new point. It seems to us that it was impossible for the Court to have come to a decision on this point in the absence of any evidence. In our opinion we think the Court below ought not to have allowed the point to be taken for the first time in appeal. We, therefore, allow this appeal, set aside the decree of the Court below and restore that of the Court of first instance with costs, including in this Court fees on the higher scale.