ALTAPALI KHAN Vs. UZIRALI KHAN

JUDGEMENT

(1.) This is an appeal from a decision of the Additional Subordinate Judge of Chittagong, dated 19 September 1929, whereby he reversed the decision of the Munsif, 3 Court, Patiya, dated 5 September 1927. The suit, out of which this matter arises, was instituted on 20th December 1926, and the plaintiffs were claiming to redeem certain lands, originally held by their predecessor in kayemi raiyati right. The plaintiffs claimed to redeem those lands upon the allegation that they were mortgaged by the plaintiff's predecessor-in-title to one Ashkar Ali on 23 Jaistha 1260 M.E., corresponding to 5 June 1898. The defendant asserted that he had been continuously in occupation of the lands in question from the date just mentioned up to the time of the institution of the suit on 20 December 1926. The real defence to the plaintiffs claim was that the document dated 23 Jaistha 1260, was in law not a mortgage but was a deed of sale by which the lands therein referred to were sold, but subject to re- purchase, the condition of such re-purchase, being if the transferor repaid the sum stated to be the price together with an equal amount of profit within a period of eight years from the date of the document then he would be entitled to get back the lands transferred by him. The plaintiff's were ready and willing to pay to the defendant an amount equal to the principal sum and an equal amount by way of profit in order to redeem the lands from the defendant.

(2.) The only question which arises for determination in this appeal is the short point whether or not the document of 23 Jaishtha 1260 was a mortgage by way of conditional sale or was an out and out sale. It is admitted by the defendant that if that document is a mortgage, then the plaintiffs have not lost their right to redeem the lands and that they are entitled to succeed in their suit. On the other hand, if the document effected an out and out sale of the lands then the plaintiffs long since lost their right to buy back the lands, and their suit fails. The question whether a document of this character is a mortgage or an out and out sale has to be determined mainly with reference to the terms of the document itself. Lord Davey in giving the judgment of their Lordships of the Judicial Committee of the Privy Council in the case of Balkishen Das V/s. Legge (1899) 22 All 149 said with reference to a matter of this kind: The case must therefore be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts.

(3.) In the present case it appears that the plaintiffs sought to support their contention that the document of 23 Jaistha 1260 was really a mortgage, by referring to statements in a petition which had been put forward in connexion with certain execution cases by the defendant, in which the defendant had described the document with which we are now concerned as kat-kabala. In my opinion, however, as the filing of that petition was an event which occurred some time subsequent to the execution of the document, it is not a matter which falls within the latter part of the proposition laid down by Lord Davey and accordingly that petition ought not to be taken into account one way or the other for the purpose of deciding the point at issue between the parties in the present proceedings. It is to be observed, from the dates which I have already mentioned that some 28 years had elapsed from the time when the bargain was made between the parties to the time when the present suit was instituted and therefore in endeavouring to construe the terms of the document, one must bear in mind the observations of Lord Cranworth, L.C, in the well-known case of Alderson V/s. White (1858) 2 DEG & J 97 where he said: What is there to show that it (that is to say the document then under consideration) was intended to be a mere mortgage? I think that the Court, after a lapse of 30 years, ought to require cogent evidence to induce it to hold that an instrument is not what it purports to be, and I see but little evidence to that effect here.