JAGANNATH Vs. GAURI SHANKAR

JUDGEMENT

(1.) This appeal originally came before one of us and was referred to a Bench of two Judges having regard to the intricate nature of a question of law involved. The admitted facts are there that plaintiff's ancestor Pragi was a minor at the date 15 of April 1879. On behalf of him and one Bhairo, who was apparently Pragi's brother, their mother executed a document, which we have to interpret, dated the 15 of April 1879, in favour of the Respondent No. 1, Gauri Shankar, for a sum of Rs. 504-4-0. The document purported to be a deed of sale, but it contained a stipulation that if and when the executant handed over half the price, namely a sum of Rs. 252-2-0, to Gauri Shankar, he would return that portion of the property to the executant. There was a further stipulation that the executant of the deed would retain 16 bighas of land till half the property was returned to her on payment by her of Rs. 252-2-0.

(2.) In the Court of the Munsif of Jhansi the successor-in-title of Pragi and Bhairo instituted the suit, out of which this appeal has arisen, for redemption of half of the property transferred in 1879, "according to the conditions laid down in thesale-deed, dated 15 April 1879." They offered to pay the sum of Rupees 252-2- 0. The Munsif decreed the suit holding that it was a case of mortgage and that the property was liable to redemption. He however imposed a further condition on the plaintiffs that they should return 16 bighas of land which they held under the document in question to the defendants. It may be stated that the defendants other than Gauri Shankar were his son and grandson.

(3.) On appeal by Gauri Shankar and the other defendants, the learned District Judge held that it was a case of a sale-deed. It was pointed out to the learned Judge that, if the document was a sale-deed. Gauri Shankar was bound to return a half of the property, on receipt of the money under the agreement entered into. It was stated on behalf of the plaintiffs-respondents that they were ready to restore 16 bighas of land they had in possession. The learned District Judge thought that to allow the plaintiffs to enforce the agreement would amount to a change of the pleadings and he was not agreeable to accede to their request. Eventually the decree of the Munsif was set aside and the suit was dismissed.