BHAGWAT RAI Vs. RAMASIS RAI

JUDGEMENT

(1.) The question to be determined in this appeal is whether the plaintiffs can be granted a decree for redemption with respect to certain lands of khata Nos. 257 and 333 and certain palm trees in khata No. 368 located in village Shahbazpur, touzi Nos. 3051 and 3054.

(2.) The plaintiffs alleged that on 1st June 1897 Ganga Ram had executed a usufructuary mortgage deed in favour of Ramlal, ancestor of defendants 1 to 4, with respect to the lands in dispute for a consideration of Rs. 100. After the death of Ganga Ram, defendant No. 5 succeeded to the properties and on 5th of October 1946 the plaintiffs purchased the equity of redemption from defendant No. 5 by a registered sale deed. There was a stipulation in the document that a sum of Rs. 100 was kept in deposit with the plaintiffs for the purpose of redeeming the land. The plaintiffs alleged that though they tendered the amount to defendants 1 to 4, the latter refused to accept the money or to deliver possession of the land to the plaintiffs. The main ground of defence was that the document executed by Ganga Ram, though in form a mortgage deed, was intended to operate as a sale. It was averred on behalf of the defendants that the devise had to be resorted to since under the law then prevalent the holding could not be transferred unless there was custom of transferability in the village. Upon a consideration of the evidence adduced the Munsif held that the transaction was a sale and not mortgage and the plaintiffs ought not to be granted a decree for redemption of the alleged mortgage. The decision has been affirmed by the learned Subordinate Judge in appeal.

(3.) The main question to be decided is therefore whether the document dated 1st of June 1897 executed by Ganga Ram was a usufructuary mortgage, as contended on behalf of the plaintiffs, or constituted a sale, as contended on behalf of the defendants.