SISIR KUMAR MALLIK Vs. NARAN CHANDRA MALLIK

JUDGEMENT

(1.) The facts of the case are these. The plaintiff's grandfather Madu Sudan took Rs. 400 from his relatives Ratneswar Mallik and Guru Dayal Mallik and executed in their favour a dead of sale of about 24 bighas of land. The deed was executed in the name of their benamdar Gopi Nath Sarkar. At the same time Gopi Nath executed in favour of Madu Sudan an ekrarnama in which the fact of sale was recited and it was agreed that if Madu Sudan repaid Rs. 400 at any time the property would be reconveyed to him. In pursuance of this arrangement the purchaser had possession of the land for nearly sixty years. The document was executed in January 1862. In 1918 the plaintiffs claimed the right to redeem the property by repaying Rs. 400. The original parties to the transaction were all dead. Six of the descendants of the original purchasers consented to reconvey their shares of the property to the plaintiffs. Six others refused to do so. Defendants 7 to 12 are those who did execute a deed of reconveyance. Defendants 1 to 6 are those who refused to do so. The plaintiffs filed this redemption suit on 24 January 1922 which was about a week before the sixty years period of limitation expired. It was contested by defendants 1 to 6. Both the lower Courts have held that as the two documents were executed at the same time they must have constituted one transaction and that that transaction was a mortgage by conditional sale. They have therefore allowed the plaintiffs to redeem by a repayment of the original money that was borrowed. Defendants 1 to 6 have appealed against that decision. They assert that the transaction was an out and out sale and that the agreement in the ekrar for reconveyance was a purely personal agreement between Madhu Sudan and the purchasers and was not binding on the purchaser's heirs. The kobala (Ex. A) taken by itself is a deed of out and out sale.

(2.) The ekrarnama also recites that the transaction was an out and out sale transferring to the purchaser absolute rights over the property including all powers of alienation. But the learned Subordinate Judge says that unless there was an intention to treat the transaction as a mortgage by conditional sale there was no object in executing the ekrarnama (Ex. 3) at all. He also found circumstantial evidence to show that the transaction was intended to be a mortgage. He pointed out that in 1901 the sons of Ratneswar and Guru Dayal in a transaction between themselves described the property in suit as bandaki. He also pointed out that in a cess return filed by the defendants predecessors in 1905 this property was omitted. He mentioned again that the heirs of Ratneswar and Guru Dayal once tried to establish their independent right to this property by a suit for possession against a third person but they withdrew the suit. He points out again that the heirs of the purchasers have not produced any of their collection papers to show that the property was treated by them as their own. He comments on the fact that six of the heirs of the purchaser have recognized the transaction to be a mortgage and have reconveyed their shares in the property. Two other points in the plaintiff's favour were mentioned in the judgment of the Munsiff. He pointed out that the stamp of the kobala was paid for by Madhu Sudan and he expressed the opinion that the price of Rs. 400 for 24 bighas of land must have been inadequate even 60 years ago. But the learned Subordinate Judge does not attach any importance to these last two points. He says that Madhusudan probably paid for the stamp of the kobala because he was in urgent need of the money and the stamp on the ekrarnama was paid for by the purchaser. He says that it is impossible to say now whether Rs. 400 was an adequate price for 24 bighas of land 60 years ago or whether it was not.

(3.) In this Court the respondents advocate has supported the judgment by urging other reasons also why the transaction must have been a mortgage and not an out and out sale. He argues that Madhusudan was in urgent need of money and took a temporary accommodation from his relatives and gave the land as security for the loan. As the money was advanced by his relatives no period was fixed for repayment of the loan and there was no provision for interest nor was there any bargaining over the price. He argues that all the circumstances show that the intention of the parties was that the property should be given back if the money was repaid.