Das Gupta, J. - (1.) The subject-matter of the present litigation is premises No. 50, Beekbagan Row in police-station Ballygunge, District 24-Pargands, which admittedly belonged originally to Mohammad Bedar Bakht. On October 5, 1940, he executed a conveyance by which he transferred his right, title and interest in these premises to the Appellant, Dost Mohammad Estate, Limited. On the same date another document was executed by himself and Dost Mohammad Estate, Limited, which purported to create a lease in favour of Mohammad Bedar Bakht at a rental of Rs. 90 per month. The same document also provided for a right of re-purchase by Mohammad Bedar Bakht in these words: "Provided always and it is hereby agreed and declared that if the lessee shall be desirous of purchasing the reversion in fee simple in the premises hereby demised at the price of Rs. 9,000 (rupees nine thousand only) and shall at any time before the 30th day of June one thousand nine hundred and forty-three (time being in i this respect of the essence of this contract) give to the lessor or leave for it at its registered place of business in Calcutta a notice in writing to that effect then in such case the lessor shall be bound to sell the reversion to the lessee or his nominee or nominees to be named in such notice at the said price of rupees nine thousand only within three months from the date of receipt of such notice provided the lessee shall have up to the date of such notice duly paid all rents and observed and performed all the covenants and conditions herein contained and on his part to be observed and performed and this demise shall not meanwhile have been forfeited or surrendered and such sale shall be subject to the following conditions (namely). Firstly, the purchaser shall be bound to accept such title only as the lessors have acquired under an indenture of conveyance bearing even date herewith and made between the lessee of the one part and the lessors of the other part and the lessor shall not be required to enter into any other covenant for title save and except that it has not done any act, deed or thing whereby the premises to be sold can or may be encumbered or affected in title. Secondly, that the purchase shall be completed immediately on or before the expiration of three calendar months from the date of receipt of such notice. Thirdly, the purchaser shall pay all arrears of rent up to the date of completion of the purchase. Fourthly, upon payment of the purchase money and all arrears of rent as aforesaid the vendor shall execute a proper conveyance of the said premises to the purchaser or his nominee such conveyance to be prepared by and at the cost of the purchaser and, fifthly, all costs of the vendor of and incidental to such sale and conveyance as between attorney and client shall be paid by the purchaser to the vendor."
(2.) Rents were not paid and a suit for ejectment and for recovery of rents was instituted by the present Appellant on December 23, 1942. The Defendant, however, paid all the arrears of rent with interest and full costs of the suit and the court passed the following order: In the circumstances and in view of Section 114 of the Transfer of Property Act it is ordered that the lessee (Defendant) is relieved against the forfeiture of the lease and he shall hold property leased as if the forfeiture had not occurred. Prayer for ejectment is rejected and the claims for arrears are dismissed on full satisfaction.
(3.) The present action was brought on the allegation that the transaction was in reality a mortgage and for redemption of the mortgage on that basis. There was an alternative prayer for specific performance of the contract to convey the premises to Mohammad Bedar Bakht or his nominee, Musammat Razia Khatun who died during the pendency of the suit in the trial court and her representative were brought on the record. The learned court below rejected the Plaintiffs case that the transaction was in substance a mortgage and therefore, dismissed the claim for redemption. He, however, decreed the suit for specific performance.;