ANSA TUKA Vs. KENCHAPPA SATAPPA

JUDGEMENT

(1.) This case has been treated as if the question involved is whether the document in question is one of sale or mortgage, but the real question that should have been decided is whether the real agreement between the parties was embodied in this document.

(2.) We therefore remand this case to the lower appellate Court for a finding on the following issue :-

(3.) See Pertap Chunder Ghose v. Mohendranath Purkait (1889) I.L.B. 17 Cal. 291, where at page 297 Sir R. Couch in delivering the judgment of the Privy Council observes : "Further, if there is any stipulation in the Kabulayat which the plaintiff told the tenants would not be enforced, they cannot be held to have assented to it and the Kabulayat is not the real agreement between the parties and the plaintiff cannot sue upon it."