MOHD AMIN Vs. BAJRANGI SINGH

JUDGEMENT

(1.) The only question that arises-in this appeal is whether upon a true construction, the deed of transfer (Ex. 1) read with the agreement (Ex. A-1) is a sale with a condition of repurchase or a mortgage by conditional sale. The matter arises in this way.

(2.) Bajrangi Singh and others filed an application under Section 4, U.P. Encumbered Estates Act, on 20 October 1936. Decrees were passed in due course by the Special Judge under Section 14 and they were sent to the Collector under Section 19 on 21 July 1939. On 22 April, 1940 two per-sons Mohammad Afzal and Mohammad Yakub, sons of one Abdullah, filed a claim alleging that they are proprietors of certain plots under the deed of 13 June 1924, executed by the applicants in favour of their father Abdullah for :as. 6,000. The debtors-applicants had shown the three sons of Abdullah Mohammad Amin, Mohammad Yakub and Mohammad Afzal as the mortgagees of the property and the sale deed of 13th June 1924, as a mortgage deed. It appears that they subsequently conceded that the deed of 1924 was a mortgage by conditional sale whereupon the Special Judge granted them a decree for two-thirds of the mortgage money. On 21 September 1940, Mohammad Amin who was away in Burma having returned made an application on a January, 1941, praying for restoration of the proceedings under the Encumbered Estates Act and the admission of his claim under Section 11 (2) of the Act. Mohammad Amin had apparently satisfied the Court that he was prevented by sufficient cause from filing the claim earlier and his claim was, therefore, admitted. His claim was that he was the owner of the property by virtue of the sale deed of 1924 but in case it was held a mortgage he claimed a money decree for Rs. 2,000 plus Rs. 800 costs of two wells constructed by him on the mortgaged property that is Rs. 2,800. in all. The issue framed by the trial Court was whether the claimant is a vendee of the property In suit as alleged.

(3.) The learned Special Judge interpreted the sale (Ex. 1) dated 13 June 1924, and the agreement (Ex. A-1) executed on the previous date, as embodying a transaction of sale with a condition of repurchase. Accordingly he allowed the claim and declared Mohammad Amin to be owner of one-third of the property. He decreed that this share was not liable to attachment and sale in satisfaction of the decree.