- (1.) IN this plaintiff's appeal against a judgment and decree of District Judge, Maharaj Kishore allowing the appeal and remanding the case for trial of other issues the sole point for determination is whether the transaction in dispute amounts to a mortgage by way of conditional sale or an out and out sale. The relationship of the parties is given in the pedigree-table which Is as follows: siri KISHAN dass ____________________________|__________________________________ | | | | | jaigopal Ram Gopal Ram Parshad parmanand Girdhari Lal | __________|_____________ pat Ram | | ____________________________|___ Mam raj Kalu Ram | | | | ____|____ ____|_______ matram Makhan Lal Dalip Singh Sant Lal= | | | | deft. 1. Deft. 2. Deft. 3. widow Mt. Misri hans Raj Mani Ram Dhan Ram Dev Raj deft. 4. Pltf. Daft. 5. Deft. 6. Deft. 7.
(2.) RAM Parshad's branch had earned on business under the name of firm Hardwari Mal-Pat Ram and Parma Nand's branch under the name of firm Kalu Ram-Mam Raj. On the 5th August 1930, an award was made in favour of Hardwari Mal-Pat Bam against firm Kalu Ram-Mam Raj for Rs. 4,000/- and a decree followed thereon. Execution was sought and the property was attached and sale was going on. I may here state that by this award the decree money was made a charge on the property which is now in dispute.
(3.) ON the 21st June 1936, two documents were executed. One is Exhibit D-1, which is a sale-deed by which Kalu Ram on behalf of himself and on behalf of his minor nephews, sons of mam Raj, sold their share of the haveli which was one-half to the sons of Pat Ram. The sale-deed was in the following terms; "we, Kalu Ram * * * are the owners of half share of the 'haveli' * * * * We, having sold our share for a sum of Rs. 2,000/- to Mat Ram * * *, have put the vendees in possession of the pro perty in dispute and have removed the posses sion of myself and of the minors, "apta wa nabaligan mazkur ka oaba oatan tor par jaidad mubaiya se utha lia gia) and the whole of the consideration has been adjusted in the decree on the award * * * * by which a charge was created on the property sold. . . . If there is any other co-sharer or if the minors on attaining majority make any kind of claim in regard to the property sold, then we shall be responsible for the same in every way and if any loss is caused to the vendees, we shall be responsible for the payment of the same snd the vendees will have the power to make good that loss from our person and property and from now onwards the vendees shall be owners of the property sold like us * * *" Then follows the statement in which Kalu Ram says that he is the guardian of his minor nephews and that his sons have given their consent to this transaction.;