JHANDA SINGH Vs. SHEIKH WAHID-UD-DIN

JUDGEMENT

(1.) This is an appeal from a judgment and decree dated the 11th March, 1911, of the High Court of Judicature for the North Western Provinces, affirming the decree dated the 27th March, 1908, of the Additional Judge for Meerut.

(2.) The question for decision is whether two instruments in writing, the first, a deed dated the 29th August, 1852, executed by the appellant s predecessors in title and the second, an agreement dated the 5th September, 1852, executed by the predecessors in title of the principal respondents constituted when taken together a bai-bil-wafa mortgage of the property in the first-mentioned instrument described, that is, a mortgage by way of conditional sale, or an out-and-out sale of the property with a contract for repurchase. The Additional Judge of Meerut held that the documents constituted the latter. On appeal to the High Court, the two members who constituted the Court, Sir John Stanley, Chief Justice and Mr. Justice Banerji, were divided in opinion : the Chief Justice concurring with the Additional Judge and Mr. Justice Banerji holding that the transaction amounted to a mortgage by way of conditional sale. Owing to this division of opinion the decree of the Court below stood and by decree dated the 22nd March, 1910, was affirmed and the appeal dismissed but without costs.

(3.) An appeal was then brought from this decree of the High Court under Section 10 of Letters Patent of that Court to three Judges. They were unanimously of opinion that the decision of the Additional Judge was right and by their decree of the 11th March, 1911, affirmed the decree appealed from and dismissed the appeal with certain costs. Of the six Judges, therefore, who considered the case five formed the opinion that the transaction effected by these two instruments was an absolute sale out and out of the property mentioned in the deed of the 29th August with a contract for repurchase and one that the transaction was a mortgage. It was not disputed that the test in such cases is the intention of the parties to the instruments. That intention, however, must be gathered from the language of the documents themselves viewed in the light of the surrounding circumstances. The deed of the 29th August, 1852, sets forth that the vendors have sold to the vendees the entire biswas Zamindari property in Mauza Phul with all the rights and interest appertaining thereto under Mahommedan Law, for a sum of 5,500 rupees and that the vendees have purchased this property from the vendors in consideration of that amount; that the sale is valid, legal, and, enforceable; that the vendors have received the consideration for the sale and have put the vendees into the possession and enjoyment of the property with its cesses and revenues; and that they, the vendors, have no longer, as against the vendees, any right, title, or claim to this property, or to the purchase money in respect of it.