Das, J.

(1) This is an application for leave to appeal to the Supreme Court, and the main question for decision is whether the appeal involves some substantial question of law within the meaning of para. 3 of Section 110. Civil P. C.

(2) The facts look, at first sight, somewhat complicated, but when stated clearly in chronological order, do not present any serious difficulty with regard to the questions raised. One Ramdayal Mazumdar took a lease of under-ground rights in nine annas share of village Kusunda from the proprietor, the Raja of Katras, by a registered lease dated 1st Agrahayan 1301 E. S. corresponding to the year 183

4. This Ramdayal Mazumdar was the ancestor and predecesaor-in-interest of the plaintiffs to the action, out of which this application has arisen. Ramdayal Mazumdar granted a sub-lease of his interest to Raja Durga Prasad Singh of Jharia by a registered document dated 26th chait 1311 B. S. corresponding to 190

5. For the sake of convenience, this lease of 1311 B. S. in favour of Raja Durga Prasad Singh of Jharia will be called the head lease. One of the terms of this head lease was that the annual minimum royalty reserved, viz., a sum of Rs. 900 would be paid in four equal instalments. Raja Darga Prasad Singh of Jharia, in his turn, assigned his interest to one C. J Smith by a deed of assignment dated 15th Baisakh 1314 B. S. which would correspond to 190

7. In 1914, Ramdayal Mazumdar sued Raja Durga Prasad Singh and his assignee, C. J. Smith, for royalty due for the period 1318 B. S. to Aswin 1321 B. S. This suit was compromised, and the terms of compromise, as embodied in the decree, stated :

"The amount of rent for the year in suit is settled out of Court, and henceforward defendant 2 (that is, C. J. Smith) shall continue to pay the amount of rent in conformity with the terms embodied in the kabuliat executed by Raja Durga Prasad Singh and the additional terms mentioned below. Defendant 2 further stipulates to execute within one month a proper kabuliat, creating the entire rent payable in respect of the land in suit first charge on the leasehold land. Under the terms cited above, the defendant shall pay the amount of claim and the salami for mutation and registration of name, i. e., in all, Rs. 4500 and get his own name registered. He (the defendant) shall execute a separate kabuliat within one month mentioning therein that the rent shall form first charge on the leasehold property."

(3) In accordance with the aforesaid compromise and in execution of the decree passed in terms of the compromise a document was executed on behalf of Mr. Smith by the Court on 27th April 1918, in Execution Case no. 94 of 191

7. On 4th February 1920, Mr. Smith executed an English mortgage in respect of the leasehold property in favour of a company known as the Jagadamba Loan Company, Limited (hereinafter to be referred to as the Loan Company), to secure a sum of Rs. 3 lacs advanced by the Loan Company to Mr. Smith. Thereafter, the Loan Company came in possession of the leasehold property, but under the terms of the mortgage, the mortgagor remained liable to pay all rents, royalties, etc, for the leasehold property. In the year 1929, the plaintiffs, successors-in-interest of Ramdayal Mazumdar, instituted a suit against the heirs and legal representatives of Mr. Smith for recovery of royalty up to 1338 B. s. by enforcing the charge on the lease, hold property for the payment of the said rent. The Loan Company was not made a party to this litigation. A decree was obtained, and in execution of the decree the leasehold property was put up to sale, and purchased by one Saroj Basini Debi on 12th November 193

1. This Saroj Basini Debi was defendant 1 to the action, out of which this application has arisen. On 31st March 1938, the Loan Company assigned their interest to one Smt. Umarani Debi On 26th September 1938, Smt. Umarani Debi transferred her interest to Smt. Gangamoni Debi, defendant 2 to the action and appellant in the High Court (now petitioner before us). On behalf of the petitioner it is stated that Smt. Umarani Debi acquired from the Loan Company the interest as mortgagee as well as the interest which the Loan Company had acquired by paying up Saroj Basini Debi and Smt. Umarani Debi transferred her mortgage interest to Smt. Gangamoni Debi, but not the other interest. In 1945, the plaintiffs brought the action, out of which this application has arisen, against Saroj Basini Debi, defendant 1, and Gangamoni Debi, defendant 2, for recovery of minimum royalty or rent for the years 1344 B. S. to Poos kist of 1351 B. S. by enforcing the charge against the leasehold property. This suit was valued at Rs. 9469 and odd annas, being the amount of royalty claimed with interest thereon. It was contested by the present petitioner, Gaugamoni Debi, and her principal defence was that she held the property as a mortgagee, and was not, therefore, liable for rent or royalty there being neither privity of estate nor privity of contract between herself and the plaintiffs.

(4) The learned Subordinate Judge decreed the suit. Gangamoni Debi preferred an appeal to this Court. This appeal was dismissed, and the decision of the learned Subordinate Judge was affirmed. Gangamoni Debi has now made the present application for leave to appeal to the Supreme Court against the decree passed by this Court on appeal.

(5) When the appeal was heard in this Court, Mr. R. S. Chatterji, appearing for the appellant, raised several contentions which were stated and dealt with under tour heads in the judgment of the Bench which heard the appeal. The same contentions as also some others, which were not raised at any previous stage, have again been pressed before us in support of the submission that the appeal involves some substantial question of law. The first contention is that the compromise in the suit of 1914 was void by reason of the fact that it was without consideration. This contention was dealt with by the Bench which heard the appeal in the following way It was pointed out that such a plea was not raised in the first Court, and as the plea involved a question of fact, it could not be raised for the first time in appeal. Secondly, it was pointed out that by the compromise C. J. Smith was recognised as the lessee in place of the Raja of Jharia, and the liability of the Raja was deemed to have been paid up in accordance with the terms of the compromise : it was stated that this was good consideration under a, Sub-section (d), Contract Act. Mr. R. S. Chatterji has contended before us that the second ground mentioned above is not correct in law inasmuch as Ramdayal Mazumdar was, in law bound to recognize the transfer made in favour of C. J. Smith, who was accordingly made a party defendant in the suit. He has also contended that Section 2 (d) has no application. In my view, it is unnecessary to go into these questions. The first ground was itself sufficient to dispose of the contention of Mr. Chatterji, It is well settled that a question of fact cannot be raised for the first time in appeal. I do not think that there can be any doubt that the question whether there was good consideration for the compromise or not is a question of fact. The appellant should have raised such a plea in the first Court and joined issue thereon. Having failed to do that, it was not open to the appellant to raise the question for the first time in appeal. This, I think, is well settled, and no substantial question of law is involved therein.

(6) Secondly, it has been contended that the terms of compromise, so far as they imposed an additional burden on the lessee by the creation of a charge on the leasehold property for payment of rent, were outside the scope of the suit of 1914 therefore, such terms could not be enforced by way of execution of the compromise decree, but could only be enforced by obtaining a decree in a suit for specific performance. This is an entirely new point never taken at any previous stage. Even in the application for leave to appeal, no such ground has been taken. There are several decisions which state that the question of law must definitely and clearly arise and must nor be one newly raised In Mohamad Shadak v. Venkata Komaraju, A I. R. (27) 1940 Mad. 810 [LQ/MadHC/1939/214] (193 I. C. 353), it was pointed out that leave to appeal could not be given for the purpose of raising for the first time a question which was not raised at any time while the litigation was pending, that is to say, either at the trial Court or in the appellate Court. Their Lordships observed :

"The report to the provisions which permit a party to apply for leave to appeal for raising a point for the first time after the whole case has been disposed of, would be in our opinion, an abase which should not be encouraged."

If I may say so with respect, I entirely agree with the above observation.

(7) The third contention of Mr. Chatterji is that the kabuliat of 1918 executed on behalf of C. J. Smith, purported to create a fresh lease, though in law it did not; alternatively, it purported to create a mortgage, but was not validly executed in accordance with the provisions of S. 59, T. P. Act. The contention is that if the document fails as a lease or a mortgage, it can create no right in favour of the plaintiffs-respondents. The appellate Court fully dealt with this contention of Mr. Chatterji. It pointed out that the kabuliat could not be treated as a lease, because it had not been signed by the lessor. It further pointed out that by the kabuliat, there was no transfer of any interest in the property: therefore, the document was not a mortgage. Manohar Lall J. with whom Mahabir Prasad J. agreed, stated that the parties really intended to make a lease, but not a mortgage. There was no doubt, however, that the kabuliat of 1918 created a charge on the leasehold property, and the appellate Court held that there could be no valid objection to treating the document as such. The document in c ear terms, creates a charge, and even if it fails as a lease, I see no good reason why it cannot be treated as creating a charge on the leasehold property. No particular form of words is necessary for the creation of a charge, and it is sufficient if, having regard to all the circumstance of the transaction, it shows an intention to make the property security for; the payment of the money mentioned therein. It has been contanded that a document creating a charge requires to be attested in the manner laid down in Section 59, T P. Act, and Mr. Chatterji has relied on certain observations made in Shiva, Rao v. Shanmughasundarswami, A. I. R. (27) 1940 Mad 140 [LQ/MadHC/1939/254] : (I. L. R. (1940) Mad. 306). This again, is a point which was never raised at any previous stage of the litigation, and cannot be allowed to be raised for the first time on an application for leave to appeal.

(8) The last contention of Mr. Chatterji is that the suit should have been dismissed on the ground of non-joinder of Umarani Debi. It is contended that Umarani Debi was interested in the equity of redemption inasmuch as she acquired that interest of the Loan Company which the latter got by paying up Saroj Basini Dabi, and which interest Umarani Debi had not parted with in favour of the petitioner. Saroj Basini Debi had purchased the leasehold property in execution of the mortgage decree obtained by the plaintiffs in the suit of 192

9. Therefore Saroj Basini Debi became the lessee, and was rightly impleaded as defendant 1 in the action. There is no document showing that the interest of Saroj Basini Debi as lessee was transferred to the Loan Company. It was, no doubt, stated that the Loan Company had redeemed or paid up Saroj Basini Debi. Mr. Chatterji has drawn our attention to para. 11 of the plaint where it was stated that : "The plaintiffs have been informed and believe that defendant 2 acquired interest in the leasehold property by tramnsfer from defendant 1, hence she is also impleaded as defendant." I do not think that this statement in the plaint amounts to an admission, as is contended by Mr. Chatterji, that the interest of a lessee which Saraoj Basini Debi had acquired was transferred to the Loin Company, and then to Umarani Debi The appellate Court rightly pointed out that the plea that the suit could not proceed in the absence of Umarani Debi was not taken in the Court below and no issue was framed. In these circumstances, the point could not be raised for the first time in appeal. It was further pointed out that on the materials before the Court, it was impossible to come to a satisfactory conclusion as to whether any person interested in the equity of redemption had not been made a party. In my view, both these are good and valid reasons for overruling the contention of Mr. Chatterji. Firstly, on the materials in the record it cannot be said that Umarani Debi had acquired the interest of a lesseee; secondly such a plea not having been raised in the first Court could not be raised for the first time in appeal.

(9) For the reasons given above, I am unable to hold that the appeal involves any substantial question of law. The value of the suit, as I have already stated, was RS. 9469-6-0. Mr. Chatterji has contended that the decision affected the right of the petitioner as mortgagee, the value of which was much more than Rs. 10,000, therefore, the petitioner was entitled to get leave to appeal under para. 2 read with para. 3 of Section 110, Civil P. C. I have pointed out that no substantial question of law is involved, and para. 3 does not apply. The application accordingly fails, and is dismissed with costs.