Judgement

Appeal from a judgment and decree of the Court of the Judicial Commissioner (June 27, 1913), reversing a decree of the District Judge of Amraoti which affirmed a decree of the Subordinate Judge.

The facts appear from the judgment of their Lordships.

1919. Feb. 14, 17. De Gruyther K.C. and Parikh for the appellants. There was no ground within s. 100 of the Code of Civil Procedure, 1908, upon which the second appeal could be maintained Durga Choudhrain v. Jawahir Singh (( 1890) L. R. 17 I. A. 122.) ; Nafar Chandra Pal v. Shukur. (( 1918) L.

R. 45 I. A. 183.) The case depended entirely upon the facts.

[Viscount Haldane. Why had not the respondents the rights of mortgagors ?]

The transaction was rightly considered by all the Courts in India to be a sale with a right to repurchase, and not a mortgage Bhagwan Sahai v. Bhagwan Din (( 1890) L. R, 17 I. A. 98.); Balkishen Das v. Legge (( 1899) L. R. 27 I. A. 58.) ; Jhanda Singh v. Wahid-ud-din. (( 1916) L.

R. 43 I. A. 284.)

Sir William Garth for the respondents. There was no evidence to support the finding of fraud arrived at by the trial judge and upon the first appeal. The real question had not been considered in either of the lower Courts. In these circumstances there were grounds for the second appeal. The decision of the Court of the Judicial Commissioner was right on the evidence. The entry in the registrars book was admissible in evidence. The respondents are entitled to have the suit dismissed apart from the reasons for which the Court of the Judicial Commissioner set aside the decree. The transaction of 1908 was a mortgage by conditional sale; the respondents were therefore entitled to redeem. If they had only a right to repurchase, time was not of the essence.

De Gruyther K.C. in reply. The decisions of the two lower Courts were not open to the objections contended. In any event the case should have been remitted, no issue having been framed upon the question raised in the second appeal. [Order xli., r. 25, was referred to.]

Feb. 26. The judgment of their Lordships was delivered by

VISCOUNT HALDANE. This is an appeal from a judgment of the Court of the Judicial Commissioner, Central Provinces, which reversed a judgment of the District Court, Amraoti, which in its turn affirmed a judgment of the Subordinate Judge there.

The question which arises is whether the appellants are entitled to cancellation of a sale deed, dated June 26, 1909, executed by them in favour of the respondent, Abdul Samad, and to possession of the land to which it relates. Abdul Samad was the owner of three fields, and on June 27, 1908, he executed a deed in favour of the appellants purporting to be a deed of absolute sale of these fields for Rs. 3000, it being the fact that the fields were of a much greater value. He also executed an agreement reciting the sale deed and providing that if purchase money of the same amount be paid for the fields on June 27, 1909, the appellants should resell, but the entire amount was to be paid on the date mentioned. This agreement was of the same date as the deed of sale. There was also a lease, dated two days later, on June 29, 1908, under which the first appellant purported to let the fields to the first respondent in the benami name of his nephew, for a year at a rent which would have been equal to about 24 per cent, interest on the purchase money.

The effect of the transactions referred to was that the first respondent remained as before in possession of the fields. A year later, on June 26, 1909, which was a Saturday, he appears to have desired then to pay the stipulated purchase money of Rs. 3000, and of obtaining a reconveyance of the property. A sale deed was drawn up for signature by him and the appellants, and for registration, and he paid to the appellants agent Rs. 720, being the rent due under the lease, as well as Rs. 30 laid out for the stamp on the deed. The terms of the reconveyance provided that the amount of the purchase money was to be receiv