KALKA PRASHAD Vs. BHUIYAN DIN

JUDGEMENT

(1.) THIS appeal arises out of a suit for redemption of a mortgage alleged to have been made on the 13 of May 1845. The plaintiffs case was that on the date mentioned above a sale-deed was executed, in favour of the predecessor in title of the defendants by the predecessor in title of the plaintiffs and on the same date the predecessor in title of the defendants executed an agreement to recovery the property on receipt of Rs. 300, the amount of consideration mentioned in the sale- deed, within seven years, no account being taken of interest or profits, that the transaction was that of a mortgage by way of conditional sale and that they are entitled to redeem it. The defendants denied the transaction referred to by the plaintiffs and asserted that an absolute sale of the property for Rs. 1,000 had been made in favour of their predecessor in title in 1852. The lower appellate Court has found that this allegation of the defendants is not made out and this finding is not impugned in this appeal. The Court below was of opinion that the predecessor in title of the plaintiffs made a mortgage by way of conditional sale in favour of the defendants predecessor in title and that the claim of the plaintiffs was not time- barred. As the Court of first instance had dismissed the suit upon the finding that the alleged sale of 1852 had been made out, the lower appellate Court remanded the case under Section 562 of the old Civil P. C. (Act No. XIV of 1882) for decision of the other issues. From this order of remand the present appeal has been filed. The first plea taken in the memorandum of appeal is that upon a proper construction of the deed of 1815, the transaction was an out and out sale with a condition of repurchase. THIS plea has not been pressed. We may say that we agree with the learned Subordinate Judge in his conclusion as to the nature of the transaction. The learned advocate for the appellants has confined his argument to the second plea, namely, that the claim is barred by time. He contends that the mortgagor had a right to redeem at any time within 7 years, that this right to redeem, therefore, accrued on the date of the mortgage and that as the suit was brought more than 60 years after the accrual of that right, the claim is time-barred. A number of rulings have been cited to us, which are not all in harmony. The latest ruling, namely Husaini Khanam V/s. Husain Khan 29 A. 471 on which the Court below relies, supports the view of the learned Judge. In the view which we take of the case we do not deem it necessary to enter into a consideration of the various authorities which have been cited. We think that in each case we must look to the nature of the particular mortgage and the surrounding circumstances to ascertain what the intention of the parties was. Having regard to the nature of the mortgage in the present case we do not think that it would be reason-able to hold that the mortgagor had a right to redeem before the expiry of 7 years from the date of the mortgage. The transaction was on the face of it one of absolute sale, but as an agreement was executed on the same date to reconvey the property, and from the terms of the agreement it is manifest that the intention was that a conditional sale should be effected and the mortgagee should enter into possession and enjoy the profits in lieu of interest, it is, in the highest degree, improbable that it was intended that the mortgagee should have possession for any term less than 7 years. He clearly had not the right to foreclose the mortgage before the expiry of that term and we do not think that the intention was that the mortgagor should have the right to re-enter info possession at an earlier date. It is true that at one place it is said in the document executed by the mortgagee that the mortgagor should pay the money "within seven years," but further on, it speaks of payment being made according to the period mentioned in it (hasb miyad mundarja ikrarnamd). Having regard to these circumstances the right to redeem did not, in our opinion, accrue until the expiry of the 7 years. The suit is therefore within time. We dismiss the appeal with costs.