DAMODAR BECHAR Vs. MOHAN JAVER

JUDGEMENT

(1.) The question in this appeal is, whether the plaintiffs Nos. 1 to 3 respondents are entitled to avoid the sale deed passed by them to the defendants Nos. 1 and 2 appellants and the defendants Nos. 8 and 4 respondents in 1912. Both the lower Courts have answered the question in the affirmative, holding that the sale deed in question, though ostensibly of the whole of a recognised portion of the Bhag, was, in reality, a sale deed of one-half, for half the recited amount, and the plaintiffs in reality retained possession of the other half themselves without receipt of the other half of the recited consideration. The defendants Nos. 1 and 2 appeal.

(2.) It is argued for the appellants that the sale deed in question, being on the face of it one for a recognised portion of the Bhag, does not offend against the provisions of the Bhagdari Act V of 1862, and that in any case the plaintiffs having taken advantage of the sale, should not be allowed to avoid it. For the respond" ents it is contended that the transaction in reality was an alienation of an unrecognised portion of the Bhag and must therefore be set aside.

(3.) The facts as found by both the lower Courts are as follows: Mohan the appellants Sonees were the mortgagees from the plaintiffs respondents. The latter brought a suit in redemption. Accounts were made up and the plaintiffs were declared entitled to redeem on payment of the amount by instalments. The mortgagors failed to pay the instalments. The mortgagees threatened to put up the property to sale and the mortgagors in order to retain possession of at least a portion, agreed to transfer the other portion to the mortgagees decree- holders for the decretal balance due. In order to avoid the provisions of the Bhagdari Act, the parties decided that the real sale of one-half should take the apparent form of a sale of the whole for double the appellants decretal amount, the defendant No. 8 the eon of the plaintiff No. 1 and the defendant No. 4 the father-in-law of the other plaintiff being joined as purchasers. The plaintiffs, however, continued to remain in possession of their half. In May 1913 some unregistered documents were passed, followed a few days later by a document Exhibit 56, under which, the purchasers appellants agreed to reconvey to the defendants Nos. 3 and 4 respondents the portion of which the former were in possession on receipt of the price at the rate of Rs. 240 per acre.