Norman Macleod, C.J.
1. The plaintiff sued to recover possession of the plaint lands and house, together with the crops standing on the lands, and Rs. 120 for damages for the loss of rent of the lands, and Rs. 18 for damages for loss of the house-rent for three years before suit., and future profits. He based his suit on rent-notes. The defendant contended that be and his brother unwillingly passed the sale deed of the plaint property to the plaintiff's father; that the property was worth Rs. 2,400 'or 2,500 and the sale deed was got instead of a mortgage deed so that the debt might be' soon satisfied; that they passed the deed as persons in need, and because the plaintiff's father represented to them, that lie would not claim ownership over the property, that the plaintiff's father had given them an agreement in writing the reconvey the property-to them, on satisfaction of. the debt so that the defendants might have confidence after passing the sale deed.
2. The plaintiff purchased the property in 1895. At the same time he passed an agreement to reconvey the -property after live years. This document was not registered.. Thereafter the plaintiff leased the land to the vendor. The trial Judge held that Section 10A of the Dekkhan Agriculturists' Relief Act would not apply, and that the agreement to reconvey could not be looked into for want of registration. Therefore he passed a decree in favour of the plaintiff. This decree was reversed on appeal, the learned appellate Judge coming to the conclusion that there had been misrepresentation, that, the defendant and his' brother would never have passed the sale deed 'if the plaintiff's father had not assured them that their ownership was not lost, and that they would be allowed to redeem. I think really the learned Judge did not mean that there was misrepresentation at the time die transaction took place, but that the representation made at the time had not been adhered to thereafter 'by the plaintiff, and that in reality the plaintiff's suit was in fraud of the representation made by him in 1895. However that may be, the argument that the -transaction must be considered a mortgage, because there had been a misrepresentation at the time the document was signed, cannot be upheld.
3. The real question is whether the sale deed and the Agreement to reconvey make together a mortgage by conditional sale. Strictly speaking, the Court has to look to the actual contents of the documents, and construe them accordingly. Bat it may be that there Is such extrinsic evidence and circumstances which show the relation of the written language to existing facts, that therefore it would be possible to come to the conclusion that the documents which on the face -of them constitute a sale, and an agreement to reconvey within a certain, period, or after a certain period, amount to a mortgage. But the case was not treated in either of the Courts below on that footing. It was never suggested anywhere, as far as I can see., that these two documents constituted a mortgage by conditional sale. The defendant's case appears really to have been one for specific performance of an agreement to reconvey, and that defence could not succeed for many reasons. Therefore as it has never been suggested in the lower Courts that there was a mortgage by conditional sale, it would be very difficult for 'this Court to come to that conclusion' on the evidence before it. There might be cases in which extrinsic evidence and circumstances would be so strong that we could come to the conclusion that the parties intended to effect a mortgage by conditional sale. But we do not see such extrinsic evidence in this case. Certainly not of such a strong character that we could possibly upset the decision of the trial Court. We, therefore, think that the appeal mast be allowed, and the decree of the trial Court restored, the appellant being entitled to his costs throughout.
4. I agree. I think the only way in which a conclusion in favour of the defendant could be arrived at would be by holding that the transaction of 1895 was a mortgage by conditional sale. Bat that is-not the case made out, or dealt with, in either of the Courts below, and it would be irregular for us to re-estimate the evidence, and on our own account arrive at a conclusion that a mortgage by conditional sale was actually entered into. We cannot, I think, do that in this case. The reasoning of the lower appellate Court seems to me to be faulty mainly because the Judge has used the word 'misrepresentation', when apparently he meant representation. Consequently his argument is fallacious, for the conclusions which follow from a case of misrepresentation are not those which follow from a case of representation. Hero, undoubtedly, on the facts as. stated by the lower appellate Court, there was not a misrepresentation. There was a representation that the land would be resold after five years; and that representation was in writing. That writing, however, was not registered, so it cannot form a part of the disposition of the property. We must restore the decree of the first Court with costs throughout.