KRISHNA BAI Vs. RAMA BALA

JUDGEMENT

(1.) In this case the lower Court has entirely misconceived the nature of the issue remanded for a finding: having treated it as an issue purely of law, instead of what it was intended to be-an issue of fact. The interlocutory judgment stated, "the pleaders before us admit that the only dispute with regard to the eastern moiety is, as to whether Exhibit 74, the sale deed by Khando to Daolatrao is a mortgage transaction or a sale transaction," and the issue remanded was accordingly, whether Exhibit 74, dated 8 October 1884, represents a mortgage transaction.

(2.) The lower Court was therefore required to find a question of fact, whether the real transaction between the parties as shown by the evidence, and not as might appear from Exhibit 74 taken alone, was a mortgage.

(3.) Mr. Desai for the appellant has contended that, although the direction of this Court has not been carried out and although it is undoubted that the issue remanded was intended to be an issue of fact a finding on that issue is now rendered superfluous in view of the decision in Datioo V/s. Ramchandra (1905) 7 Bom. L.R. 669. But there is a later decision, viz., the case of Abuji V/s. Luxman (1906) 8 Bom. L.R. 553 to which we must call the attention of the lower Court, as well as to the Privy Council case of Pertab Chunder Ghose V/s. Mohendra Purkait (1889) 16 I.A. 233.