Lawrence Jenkins, K.C.I.E., C.J.
1. Whatever may have been the intention of the parties, we are of opinion that, having regard to Section 92 of the Evidence Act, it is impossible to treat the transaction of 1892 as one for exchange. The two deeds profess to be deeds of conveyance, and the mere fact that they are mutual deeds of conveyance would not make the transaction an exchange for the purpose of attracting the consequence for which the plaintiffs contend. What would have been the result had the Transfer of Property Act been applicable, we need not discuss. But we think there is another ground on which the plaintiffs are entitled to succeed, and that is for money paid upon an existing consideration which afterwards failed.
2. The case, we think, falls precisely within the ruling in Venkata Narasimhulu v. Peramma ILR (1894) Mad. 173 from which the learned Judges in Ardesir v. Vajesing ILR (1901) 25 Bom. 593 : 3 Bom. L.R. 26 do not profess to dissent; in fact the authority of Venkata Narasimhulu v. Peramma ILR (1894) Mad. 173 is therein expressly recognised and the case distinguished.
3. We think we ought to follow the Madras case and decide in accordance with the rule there enunciated.
4. It has been argued that that case really is not applicable because Article 97 does not fit the circumstances of this case, as money was not actually had and received ; but, we think, that is taking too narrow a view of the whole transaction; it is clear that there was an adjustment which would be the equivalent of payment in money.
5. Therefore we think the plaintiffs are entitled to recover the damages that have been awarded.
6. We must accordingly confirm the decree with costs.