MUNSHI BISHAN LAL Vs. LALA BANWARI LAL

JUDGEMENT

(1.) This is a plaintiff's appeal against the decision of the learned Single Judge of this Court. The appeal arises out of a suit for redemption. The plaintiff sought to redeem certain house property on payment to the defendants of the sum of Rs. 550. The trial Court decreed the claim. The lower Appellate Court dismissed the suit. The decision of the lower Appellate Court has been upheld by the learned Single Judge before whom the case came in second appeal. On 10 November 1932, one Mt. Kishan Piari executed a sale deed by which she conveyed the property in dispute to the respondents for the sum of Rs. 550. The deed contained a condition that if she should repay the amount of the sale consideration to the respondents with, in one year the respondents would be bound to re-transfer the property to her provided she paid the money out of her pocket. In, other words it was a condition of the transaction that the obligation to re-transfer would not bind the respondents if the vendor mortgaged or transferred the property to a third party for the purpose of raising, the money to pay back the amount of the sale consideration to the respondents. Later, Mt. Kishan Piari sold her interest in the property to the plaintiff-appellant who filed the present suit within a year of the sale of 10 November 1932.

(2.) The defence to the suit is that the transaction of 10 November 1932 is a sale and not a mortgage by conditional sale and that therefore the plaintiff who purchased the vendor's interest cannot redeem the property. Whether a deed is a mortgage by conditional sale within the meaning of Section 58(c), T.P. Act, or an out and out sale is a question which falls to be determined on a consideration of the terms of the deed itself and of the surrounding circumstances.

(3.) In this connexion reference may be made to the decision of the Privy Council in Jhanda Singh V/s. Wahiduddin (1916) 3 A.I.R. P.C. 49. The document of 10th November 1932 is upon the face of it a sale; the executant Mt. Kishan Piari purports to convey for the sum of Rs. 550 the property in suit. In the earlier part of the deed there is a recital of the fact that the property is subject to prior encumbrances and that the amount due upon these encumbrances is Rs. 495. The document then proceeds: The creditors are making pressing demands and are ready to file a suit. In case a suit is instituted I shall be put to unnecessary expense. It appears to me to be proper to sell the said house and to pay of the said debt. In this way some money will be left for me, the executant.