1. This case has been treated as if the question involved is whether the document in question is one of sale or mortgage, but the real question that should have been decided is whether the real agreement between the parties was embodied in this document.
2. We therefore remand this case to the lower appellate Court for a finding on the following issue :-
Whether there was any promise made to Laxuman by the ostensible vendee that the document should be treated as a mortgage, or in other words, that the agreement contained in that document would not be enforced as a sale.
3. See Pertap Chunder Ghose v. Mohendranath Purkait I.L.R. (1889) Cal. 291, where at page 297 Sir R. Couch in delivering the judgment of the Privy Council observes : 'Further, if there is any stipulation in the Kabulayat which the plaintiff told the tenants would not be enforced, they cannot be held to have assented to it and the Kabulayat is not the real agreement between the parties and the plaintiff cannot sue upon it.'
4. We would also refer the lower appellate Court to the case of Bapuji v. Senavaraji I.L.R. (1877) 2 Bom. 231.
5. If the above issue is found in the affirmative, the lower appellate Court to find the amount due under the said document, and payable to the ostensible vendee.
6. Fresh evidence to be taken in the discretion of the lower appellate Court.
7. Case to be sent back within two months from this date.
8. On the 7th August 1905, the lower appellate Court certified its finding on the above issue in the affirmative and found the sum payable to the ostensible vendee to be Rs. 467-0-8.
9. On the 6th November 1905, their Lordships reversed the decree of the lower appellate Court and restored that of the Subordinate Judge.