RAM DAS RAE Vs. BRINDABAN RAM

JUDGEMENT

(1.) This is an appeal by the plaintiff's and arises out of a suit for redemption of an alleged mortgage, dated 22 August, 1864. The case hinges upon the construction of two documents which were executed on the date last mentioned. By the first document Ex. A, Ram Prasad Rae and 26 others declared that they had absolutely sold certain property in patti Mathura Rae to Khushi Ram, Bhagirathi Ram, Kharag Ram and Ishri Ram for Rs. 2,758-5-3. On the same day, a second document was executed by Khushi Ram, Bhagirathi Ram, Kharag Ram and Ishri Ram whereby they declared that if the vendors paid off the entire amount due by them within 12 years from the date of the execution of the document, the said sale deed should be returned and the property sold be redeemed.

(2.) The present suit was instituted on 3 March 1925, on the allegation that the two documents were integral parts of a single transaction and constituted a mortgage by conditional sale.

(3.) The suit was resisted inter alia on the ground that the transaction in question was not a mortgage by conditional sale, but was an out and out sale with an agreement to repurchase provided that the sale consideration was paid within 12 years of the execution of the document and that the purchase money not having been paid back within the stipulated period, the claim was time barred. The Court of first instance repelled the contentions of the defendants, held that the transaction amounted to a mortgage by conditional sale and decreed the plaintiffs suit on payment of Rs. 1,588 within six months from the date of the decree. The suit was directed against 29 defendants of whom defendants 1 to 6 were the persons in actual possession of the property in controversy.