MUHAMMAD HAMID-UD-DIN Vs. FAKIR CHAND

JUDGEMENT

(1.) This appeal arises out of a stub brought by the plaintiff appellant in the lower court for the redemption of an alleged mortgage-deed, dated the 21st of July, 1883. It appears that on that date two ladies, Musammat Ishrat-un-nissa and Musammat Shafkat-un-nissa, executed a deed of sale in favour of Lala Fakir Chand and Lala Baldeo Sahai. The consideration for the sale was Rs. 6,125. On the same day (i. e., the 21st of July, 1883,) the two Lalas executed a deed of agreement in favour of the two ladies, in which, after reciting the fact of their purchase, they said that the purchase had been made subject to the condition that the two ladies could, on the payment of Rs. 6,125 within 5 years from the date of the execution of the agreement, get back the property. The two ladies are dead and so is Lala Baldeo Sahai. The plaintiff appellant is the husband of Musammat Shafkat-un-nissa. He brought the suit out of which this appeal has arisen against the surviving vendee Lala Fakir Chand and the heirs of the other vendee. The claim was brought on the 12th of September, 1916, on the allegation that the transaction evidenced by the two deeds of the 21st of July, 1883, was really a conditional sale, i.e., a mortgage. The claim was resisted on various grounds, but the principal plea was that the sale of the 2lst of July, 1883, was an out-and-out sale and the agreement of the same day was a separate transaction for recoveyance of the property within a specified period. As the claim has not been brought within 5 years of the execution of agreement and as the claim was not for re-conveyance of the property but for redemption of the mortgage, the claim was not maintainable.

(2.) No evidence was given on behalf of the plaintiff appellant, by which we mean no oral or documentary evidence, other than the two deeds, dated the 21st of July, 1883. Some witnesses were examined on behalf of the defendant respondents to prove that the two deeds of the 21st of July, 1883, evidence really two separate transactions. The learned Subordinate Judge who heard the witnesses has not believed them, nor has their evidence been placed before us in this appeal. The case has been decided on the language of the two deeds of the 21st of July, 1883, and in the light of the case-law put forward before the court below. The learned Subordinate Judge yielded to the plea for the defence and construed the two documents of the 21st of July, 1883, to mean that they showed two separate transactions, one an absolute sale and the other an agreement of re- conveyance within a specified time.

(3.) In appeal before us the appellant contests the conclusion at which the learned Subordinate Judge arrived. It is urged on behalf of the plaintiff appellant that the language of the two documents of the 2lst of July, 1883, when closely examined, leads to but one conclusion, namely, that there was one transaction between the two ladies and the two Lalas and the-transaction was a bai-bil-wafa, that is, conditional sale or mortgage. On. the other hand, the learned Counsel for the respondents has maintained the position his clients took up in the court below, Both parties have cited- a number of authorities on the point. In our opinion in a case like the present the case-law cannot be a safe guide unless the language of the documents in all the cases is absolutely the same. Where a court has to find whether a transaction, which is embodied in two separate documents, is one transaction or the two documents express two , separate transactions, the language of the documents is, if not the only, at least the important guide in arriving at the right conclusion. If we refer to the language of the documents in suit in the present case, we find that in the sale deed, after the usual recital of the fact of sale a and the amount of consideration, the vendors said that they of their own free will and accord absolutely sold the zamindari property together with ... to Lala Bal-deo Sahai and Lala Fakir Chand. The agreement which was executed at the same time by the two Lalas, after reciting the property purchased by them, goes on to say that the property " has Been purchased by us, the executants, for Rs. 6,125 on this condition that whenever within 5 years the vendors shall pay to us the amount of consideration mentioned in this document, we or our heirs shall have no objection in re-conveying the aforesaid share. If we set up any plea the same shall be invalid and the vendors shall be at liberty to take legal steps and to have the property re-conveyed by us. But the condition is that the vendors should not borrow the money, or mortgage or sell the property for payment of the amount due to us. On the contrary, that amount should be the property of them. They shall also have to pay interest on the whole consideration at the rate of 10 annas per cent, per month, out of which the actual produce of the village sold shall be deducted, and they shall have to pay the balance along with the consideration money." Now, in our opinion if the language, of the two documents is put together and compared, it leads to the. conclusion that the parties to the two documents were entering into one transaction and that transaction was what is called in this country bai-bil-wafa, i.e., a conditional sale. The reasons for holding this view are that, though the words "absolute sale" are used in the sale deed yet the agreement distinctly admits that the sale is subject to the condition that the vendors could demand the return of the property on the payment of not only the consideration money but on the payment of consideration money plus interest at 10 annas percent, per month after the accounts between the parties had been taken with regard to the realization of the rents collected by the vendees during their period of possession. Now, if the parties intended to have two separate transactions, i.e., one an out-and-out sale and the other a right given by the vendees to the vendors of getting a re-conveyance within a specified period, there would be no necessity for saying that the sale was subject to reconveyance, or that at the time of reconveyance accounts should be gone into between the parties. The learned Counsel for the defendants respondents has urged, and urged very strenuously, that the two documents of the 21st of July, 1883, are really two separate transactions, and in support of his contention he advanced several arguments, He said that the transaction of bai bil-wafa, or conditional sale, was really a method adopted by the Mubamraadans to evade the ecclesiastical law against paying or receiving interest. He referred to the short history of the origin of bai-bil wafa given in the book of Mr. Ghose on Mortgage Law at page 60. In the present case the parties lending the money or purchasing the property were Hindus who were not bound by any ecclesiastical rules of Muhammadan. law. There was no occasion for them to have entered into a transaction with the ladies of the nature of a conditional pale. In our opinion there is no force in this argument, for the simple reason that, though the doctrine of bai-bil-wafa was introduced into this country by the Muaammadans, yet it seems to have been adopted by other communities also. It really depends upon the inclination or convenience of parties borrowing and lending money as to what,means they should adopt of repayment.