SITUL PERSHAD Vs. LUCHMI PERSHAD SINGH

JUDGEMENT

(1.) THE sole question to be decided in both these appeals is whether the Plaintiff, in the first appeal as assignee, in the second appeal as execution creditor, of one Chucknarain Singh, derived from Chucknarain a right to redeem certain villages which he alleged to have been mortgaged by Chucknarain. On the part of the Respondents it is not disputed that if he is correct in his interpretation of these deeds, and the villages were mortgaged, he has the right which he claims. But it is contended that the deeds in question did not create a mortgage, but were a sale of the property with a provision for its repurchase on certain conditions personal to the mortgagor.

(2.) IN order to determine this question it is necessary to consider the circumstances under which the two documents which are relied upon, namely a pottah and an ikrarnamah of the 15th of January, 1864, were executed, as well as to examine the documents themselves.

(3.) ON the 15th of January, 1864, a pottah was entered into by Chucknarain Singh, in which he purports to grant in mokurruri on perpetual tenure, to his brother Ramchurn, his two annas share in the fifty-two villages, at an annual rental of Rs. 497. The deed contains these recitals. It speaks of the sum of Rs. 30,005 as the consideration or peshkas nuzurana money, "out of which," Chucknarain says, "I have taken Rs. 10,000 in cash for payment of the debt due to Baboo Ramchurn Lal Mahajun" - that is another Ramchurn - "and the balance, Co.'s Rs. 20,005, was paid on account of the decretal money, principal with interest, and costs incurred in the zillah Court and the Sudder Court, as contained in the decision of the Principal Sudder Ameen of zillah Bhagulpore, dated the 10th of September, 1861, which was confirmed by the decision of the High Court of Calcutta, dated the 10th of September, 1863, due to Baboo Ramchurn Singh, Plaintiff, decree holder, from me, the declarant, Defendant, judgment debtor, after deduction of Rs. 1023 remitted out of the decretal money due to the said decree holder, and of the amount of costs incurred in the zillah Court, and also after deduction of one half of the decretal money due from Baboo Chundi Pershad Singh, second Defendant; and whereas a deed of acquittance of this date, with a receipt stamp affixed thereto, has been obtained by me from the said decree holder, I, the declarant, have from the beginning of 1271 Fusli, executed this pottah of perpetual mokurruri lease," and so on. The pottah, therefore, recites that this mokurruri lease was given upon an absolute acquittance of the debt, and not as a security for its payment.