HARKISANDAS BHAGWANDAS Vs. BAI DHANOO

JUDGEMENT

(1.) On November 1, 1898, Ranchod, the father of plaintiff No. 2, sold the house in suit to one Bai Jivi for Rs. 899 under a registered deed. On the same day Bai Jivi executed an agreement in writing in favour of Ranchod, agreeing that she or her heirs would reconvey the house to Ranchod or his heirs on repayment of the sum of Rs. 899 with interest at eight annas per cent, per mensem. The agreement was not registered. Ranchod died leaving a son, who is plaintiff No. 2 in this case. Bai Jivi died leaving a daughter by name Bai Mani, who was the original defendant in this suit but died pending this suit. Her daughter Bai Dhanoo was, therefore, brought on record as her heir or legal representative. In October, 1918, plaintiff No. 2 assigned by a deed his right in the house to plaintiff No. 1. Prior to the assignment, plaintiff No. 2 had given to Bai Mani a notice (Exh. 42) asking the latter to make up the account in respect of the transaction and to reconvey the house on taking the amount that would be found due. In the notice reliance was placed on an agreement to reconvey the house. A reply was sent on behalf of Bai Mani on October 2, 1915. I propose to deal with the necessary portion of the contents of the reply while considering the point of limitation raised in this appeal. It is sufficient to say that, in the reply, the right to demand reconveyance was denied.

(2.) In 1919 both the plaintiffs brought a redemption suit alleging that the transaction between Ranchod and Bai Jivi was really one of mortgage, The defendant contended inter alia that the transaction was a sale and that there was no agreement to reconvey the house, and that even if there was any such agreement, the suit was out of time.

(3.) The trial Court dismissed the suit, holding that the agreement was forged, that even if it was genuine, it was not admissible in evidence as it was not registered, and that the transaction between Ranchod and Bai Jivi was one of sale. On appeal to the District Court, the agreement was held proved, but the appeal was dismissed on the ground that the agreement could not be treated as a separate document, entirely apart from the sale-deed, and that, as a consequence, it required registration. It was also held that the transaction in favour of Bai Jivi was not proved to be a mortgage. It may be noted that while the appeal was pending in the District Court, plaintiffs had asked for amendment of the plaint, praying for specific performance of the agreement to reconvey the house, if the relief already claimed could not be granted. The application was made in February 1924.