HANMANT NARSINHA Vs. GOVIND PANDURANG KAMAT

JUDGEMENT

(1.) Whatever may have been the intention of the parties, we are of opinion that, having regard to Section 92 of the Evidence Act, it is impossible to treat the transaction of 1892 as one for exchange. The two deeds profess to be deeds of conveyance, and the mere fact that they are mutual deeds of conveyance would not make the transaction an exchange for the purpose of attracting the consequence for which the plaintiffs contend. What would have been the result had the Transfer of Property Act been applicable, we need not discuss. But we think there is another ground on which the plaintiffs are entitled to succeed, and that is for money paid upon an existing consideration which afterwards failed.

(2.) The case, we think, falls precisely within the ruling in Venkata Narasimhulu v. Peramma (1894) I.L.R. 18 Mad. 173 from which the learned Judges in Ardesir v. Vajesing (1901) I.L.R. 25 Bom. 593 : 3 Bom. L.R. 26 do not profess to dissent; in fact the authority of Venkata Narasimhulu v. Peramma (1894) I.L.R. 18 Mad. 173 is therein expressly recognised and the case distinguished.

(3.) We think we ought to follow the Madras case and decide in accordance with the rule there enunciated.