JUDGMENT
1. This appeal arises out of a suit for redemption of a mortgage of the 7th of June 1874. The mortgage is a usufructuary mortgage and the principal sum secured by it is only Rs. 100. The Court of first instance gave a decree to plaintiffs for redemption and awarded them a sum of Rs. 4,267-12-2 as representing rents and profits which came into the hands of the mortgagee during his possession Of the mortgaged property over and above the interest chargeable on the mortgage. Upon appeal this decree was affirmed. This second appeal has been preferred and two points have been argued before us by Mr. Wallach, the learned counsel for the appellant. The first of these is based on the provisions of Section X of Regulation XV of 1793. This section provides for the interest which is to be allowed on mortgage securities executed subsequent to the 28th March 1880 and prescribes that all such mortgages are to be considered as "virtually and in effect cancelled and redeemed whenever the principal and interest due upon it, shall have been realized from the usufruct of the mortgaged property" &c &c.
2. The Court of first instance found that the mortgage-debt in this case was satisfied in the year 1856 and the contention on behalf of the appellant is that from that date the mortgage must be deemed to have been satisfied and cancelled and thereafter the mortgagee must be deemed to have remained in adverse possession of the mortgaged property and any claim now for the recovery of that property is barred by limitation. This point does not appear to have been brought, definitely at least, to the notice of the lower Courts but it is said that a question of limitation is one which an appellate Court is bound to entertain even, though it was not raised in the lower Courts. This is no doubt so. We have considered the provisions of Section 10 of the Regulation relied on and we are of opinion that it lends no support to the argument addressed to us. The section, which is relied on, simply means that once a mortgage debt has been satisfied by receipt of rents and profits, the mortgage is to be considered as satisfied and discharged. The word redeemed" as used in the section was clearly not used in the sense that the mortgage had been redeemed in the full sense of that word, that is, satisfied and possession given to the mortgagor. So long as property remains in the hands of the mortgagee, it cannot be said that a mortgage has been redeemed. A right to redeem is a right to pay or tender the mortgage money and, when the mortgagee is in possession, to obtain from him delivery of possession. See as to this, Section 60 of the Transfer of Property Act. There is, therefore, no force in this contention.
3. The next point raised is that the jurisdiction of the Munsif only extended to a pecuniary limit of Rs. 1,000. The plaintiffs were unable accurately to estimate the amount which should be found to be recoverable by them in respect of surplus rent and profits. They fixed the amount at Rs. 100 but stated that if a larger amount was awarded to them they would pay any additional Court-fee which might be payable. The learned Munsif found that a sum of Rs. 4,267-12 2 was the amount of rents and profits received by the defendant appellant after satisfaction of the mortgage debt. It is now contended that the Munsif had no jurisdiction to pass a decree for this amount and that the plaint ought to have been returned to the plaintiffs for presentation to the Court having jurisdiction to award that amount. This argument is largely based upon the ruling of a Bench of the Calcutta High Court, reported as Golap Singh v. Indra Coomar Hazra 13 C.W.N. 493 : 1 Ind. Cas. 86 : 9 C.L.J. 367 : 5 M.L.T. 360. In that case a suit for accounts and the recovery of certain papers was brought in the Court of a Munsif who had jurisdiction to try suits up to Rs. 1,000 in value. The suit was valued at less than Rs. 1,000. It was found by the Munsif that the amount due to the plaintiff was Rs. 8,424. It was held that the plaintiff could not obtain a decree for a sum above Rs. 1,000 and must relinquish the excess, that is, that the plaintiff could not obtain a decree for a sum beyond the pecuniary limit of the jurisdiction of the Munsif. This decision is opposed to a ruling of this Court, to which one of us was a party, in the case of Madho Das v. Ramji Patak 16 A. 286. In that case it was held that the pecuniary jurisdiction of a Civil Court on its original or appellate side is ordinarily speaking governed by the value stated by the plaintiff in his plaint and if a suit having regard to the valuation in the plaint is within the jurisdiction, such jurisdiction is not ousted by the Court finding that a decree for a sum exceeding the limit of its pecuniary jurisdiction should be given to the plaintiff. The ruling in this case has not been the subject of any hostile criticism in this Court so far as we are aware. On the contrary it has been quoted without disapproval in the Full Bench ruling in Zair Rusain Khan v. Khurshed Jan 28 A. 545 : 3 A.L.J. 266 : A.W.N. (1906) 99 (F.B.). That was a suit for restitution of conjugal rights and it was argued in it that the suit was of necessity excluded from the jurisdiction of the Munsif as the suit could not be adequately valued. It was held by a Bench, of which one of us was a member, that a suit for restitution of conjugal rights is not a suit which is of necessity excluded from the jurisdiction of a Munsif, that the value of such a suit, as a rule, is the value which the plaintiff chooses to put upon it, provided that the suit be not unwarrantably undervalued or overvalued from improper motives. The same view was taken in the Madras High Court in the case of Arogya Udayan v. Appache Rowthan 25 M. 543 : 12 M.L.J. 35. In that case, the suit was for an account and the usual valuation for purposes of Court-fees was made in the plaint while it was filed and received in the Munsif's Court. The Munsif appointed a Commissioner to take an account and the result was that the plaintiff was found by the Commissioner to be entitled to a much larger sum than that at which the suit was valued. The plaintiff then applied for leave to amend the plaint which was granted and the valuation of the suit was accordingly increased. As the amount claimed in the amended plaint was greater than that over which the Court of a Munsif ordinarily has jurisdiction, the Munsif ordered the plaint to be returned for presentation to the proper Court. It was held by Benson and Bhashyam Ayyangar, JJ., that the Munsif had acted with material irregularity in permitting the valuation of the suit to be revised and that he ought to have tried the case. In their judgment the learned Judges observe: "This is a suit for an account and in such a suit the valuation for purposes of Court-fees and jurisdiction does not disentitle the plaintiff to recover in the suit such higher amount as the evidence may show he is entitled to. The only restriction is that he cannot execute the decree without paying such additional Court-fee as may be due on the amount decreed. The valuation of the suit in the present case was made by the plaintiff in the bona fide belief that his valuation was correct, and in law, that valuation determined the grade of Court which had jurisdiction to entertain and try the suit".
4. We are unable to agree with the decision in Goalp Singh v. Indra Coomar Hazra 13 C.W.N. 493 : 1 Ind. Cas. 86 : 9 C.L.J. 367 : 5 M.L.T. 360. These were the only two points which were argued before us by the learned counsel. for the appellant. We dismiss the appeal with costs including fees on the higher scale.