KISHEN DAYAL PANDE Vs. CHANDER DEO PANDE

JUDGEMENT

(1.) The suit out of which this appeal has sprung was one for redemption, and the sole question for determination, here is whether the parties stood in the relation of mortgagor and mortgagee so as to entitle the plaintiff to maintain the suit.

(2.) The facts are that on the 16th September 1867 Ajodhia Pande, the father of the plaintiff-appellant, executed a sale-deed conveying the property in suit to Biseshar Pande who is now represented by the defendants. In this document which is described by the executant as a deed of absolute sale (bai la kalami), it was stated that the vendor being in need of money had sold the property for a sum of Rs. 400. It was further recited that the purchase-money has been received and that the vendee had been put in possession. On the same date a second document, viz., an agreement (iqramama) was executed by the purchaser in favour of the vendor. After referring to the sale which had taken place, this deed went on to say that if at any time the vendor should pay the entire amount of the purchase-money in a lump sum, the vendee would without making any objection surrender the property to him. One condition was insisted on by the purchaser, namely, that the money which was to be repaid was to come out of the vendor s own pocket, it was not to be raised on loan or by making any hypothecation or transfer of the property.

(3.) The Court of first instance came to the conclusion that the execution of these two deeds represented a transaction of mortgage by conditional sale, and gave the plaintiff a decree for redemption. The Munsif was led to this finding principally by reason of the fact that the agreement fixed no period for the repayment to the purchaser of the purchase-money.