BHAGWAN DIN Vs. BHAGWAN SAHAI

JUDGEMENT

(1.) THIS case depends upon the construction of two documents dated the 20th of February, 1835. By the first document Alum Singh and others, who professed to be the proprietors of the property therein mentioned, declared that they had of their own accord absolutely sold the entire property to Ganga Bin "in lieu of Rs. 4000 of the current coin." That was an absolute sale by Alum Singh to Ganga Bin. Then on the same day another document was executed by which Ganga Bin, reciting the deed, says that he has purchased the property for the Rs. 4000, and adds: "However, I have as a matter of favour, mercy, kindness, and indulgence executed this deed, and do hereby stipulate that if all these vendors will within a period of ten years from the date of this deed pay in a lump sum, and without interest, the whole amount specified above, I shall accept the same, and cancel this valid sale. During the aforesaid term I shall remain in possession, collect the rent, enjoy the profits, and be liable for loss; the vendors shall have no concern whatever; I shall not claim interest from the vendors, nor will they demand profits from me, after the expiry of the term. In case the whole of the principal is not paid "and their Lordships think that the construction of that is, "In case the whole of the principal is not paid according to the terms of this document" "the vendors shall not be able to cancel the sale by payment of the principal."

(2.) THOSE documents having been executed in 1835, in the year 1884-nearly fifty years afterwards-a suit is commenced by the Plaintiffs, representing the vendors, claiming to redeem the property upon payment of the Rs. 4000. The Defendant in his written statement, in paragraph 3, says: "An absolute sale deed was executed in respect of the property in suit in favour of Ganga Din, whose proprietary interests were then afterwards purchased at auction by Sukh Din Bajpai." Then he says, in paragraph (6: "Under the deed of agreement alleged by the Plaintiffs, they have no right of redemption by law," and in the last two lines of paragraph 1) he says: "The two parties neither stood, nor do now anyhow stand, in the relation of mortgagor and mortgagee."

(3.) UNDER these circumstances, their Lordships think that the decision of the High Court ought to be reversed, and that their Lordships ought to give the judgment which the High Court ought to have given, namely, to reverse the decision of the first Court, and to dismiss the suit with costs in both Courts.