NATHOOLAL Vs. GANPATPRASAD

JUDGEMENT

(1.) THIS appeal comes before the Division Bench on a reference by one of us (Chief justice) because it involves an important question of law requiring authoritative decision.

(2.) THE facts of this case are interesting but simple. The plaintiff, who is the respondent in this appeal, has succeeded in getting a decree for specific performance of an agreement (Ex. P-6) executed by the parties and one Mst. Chhotibai on 4th October 1938. From the terms of that exhibit we gather that Mst. Chhotibai and the present respondent Ganpat Prasad sold to the appellant Nathulal a house which Nathulal agreed to reconvey to them on their paying him Rs. 1,000/- and claiming reconveyance within ten years. It has been found as a fact that Ganpat Prasad tendered Rs. 1,000 to Nathulal within the ten years agreed upon but the latter refused to receive payment from him and hence this suit on 5th October 1948.

(3.) IN the Court of first instance the claim was in the alternative. Ganpat Prasad sought redemption if the document were interpreted as a mortgage and in the alternative claimed to repurchase the house if the document was interpreted as an outright sale coupled with, an option of repurchase to be exercised within 10 years. The two Courts below have concurred in holding that the document betokened a sale coupled with an option of repurchase, and they have granted specific performance of the condition of repurchase to Ganpat. The case of Nathulal was that Ganpat Prasad was not entitled to claim specific performance because he was not the owner of the property nor the son of Chhotibai, which he pretended to be. That argument has been pressed upon us in this appeal.