JUDGMENT

Tek Chand, J. - In order to clearly understand the facts of this case it is necessary to refer to the following pedigree table:

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2. On the 2nd October 1883 Ghulla Mal mortgaged the house in dispute to one Jamita Mal for Rs. 700 for a term of 30 years. The mortgage-deed contained several onerous conditions, which it is not necessary to detail here. On the 8th May 1908 Jamita Mal's heirs alleging themselves to be full owners of the house sold it for Rs. 2,180 to Tulsi Ram, who in turn sold it to Kashi Ram Chetu Mal and the latter again sold it to Matu Mal defendant-appellant by a registered deed, dated 22nd December 1921, for Rs. 3,500. Matu Mal is now in possession of the property and claims to be the owner.

3. In the meantime Ghulla Mal and Mt. Chandi had died and were succeeded by Mathra Das. On the 1st March 1909 a document (Ex. P.-3) was executed by Mt. Kishen Devi, widow of Mathra Das and Mt. Gangi, his sister, whereby they, describing themselves as the heirs of Ghulla Mal, purported to release the equity of redemption in the aforesaid house to Nihal Chand. This document was written on a stamp-paper worth Rs. 5 only and was described and registered as a deed of release.

4. On the strength of this deed Nihal Chand on the 18th June 1909, instituted a suit for redemption of the house impleading as defendants the heirs of the original mortgagee Jamita Mal and their assignees as defendants. The suit was dismissed on the preliminary point that on the plaintiff's own allegations the term of the mortgage had not expired and the suit was premature.

5. On the 3rd July 1921, Nihal Chand sold his rights in the equity of redemption to Joti Prashad and on the 23rd December 1921, both Nihal Chand and Joti Prashad instituted the present suit for redemption of the house against the original mortgagee Jamita Mal's heirs, the subsequent transferees (including Matu Mal and Mt. Kishen Devi and Mt. Gangi.) It is important to note that in the plaint the plaintiffs specifically stated that the deed executed by Mt. Kishen Devi and Mt. Gangi in favour of Nihal Chand on the 1st March 1909, (Ex P. 3 ) on which they based their title was a deed of release.

6. Mt. Kishen Devi originally admitted the plaintiffs' claim but subsequently she filed a second jawab dawa stating that she had not transferred her rights to Nihal Chand and that she was the victim of fraud. The other defendants contested the suit on various grounds, of which those material for our present purposes are that the deed of the 1st March 1909 relied on by the plaintiffs is ineffectual to pass any title to them inasmuch as:

(a) One of the executants, Mt. Gangi, being the sister of the last male holder, Mathra Das, had no rights to succeed to him.

(b) Mathra Das had left a son Durga Das who should be impleaded as a party.

(c) If Durga Das be not proved to be Mathra Das's son, his widow Mt. Kishen Devi could not by executing a deed of release in favour of a stranger like Nihal Chand invest him with any rights in the equity of redemption.

7. It is important to note that when this last objection was raised, the plaintiffs, realizing that the deed executed by the two ladies on the 1st March 1909, in favour of Nihal Chand, plaintiff, could confer no legal right on him, definitely took up the position that this deed, though styled as a deed of release, was in reality an "out-and-out sale," the consideration for which was the amount spent by Nihal Chand in defraying the marriage expenses of the daughter of Mt. Kishen Devi. At the trial the plaintiffs led evidence to prove that Nihal Chand had spent large sums of money on the marriage. The trial Court in its judgment dated 7th July 1924 held that the plaintiffs had no locus standi to sue as the transaction of the 1st March 1909 was in reality a deed of release and not a deed of sale as alleged and that it conferred no title on Nihal Chand. It accordingly dismissed the suit.

8. The judgment was set aside on an appeal by Lala Topan Ram, District