1. This appeal arises out of a suit brought by the plaintiff for recovery of Rs. 5,000 and interest thereon as haqqi-chaha rum in respect of a transaction entered into between the defendants Nos.1 to, 3 on the one part and the defendants Nos. 4 to 7 on the other. On the 5th of February 1910, the defendants Nos. 1 to 3 executed in favour of the other defendants a deed of usufructuary mortgage for Rs. 20,000 in respect of a house. The plaintiff who is the landlord of the site of the house, states that the transaction was in reality a sale and not a mortgage and that he is entitled to 1/4th of the amount of consideration, according to the terms of a kabuliat executed by the parson who originally took the site for building purposes and also according to custom. The Court below has found against the plaintiff on the question of custom but it has held that the transaction was a sale. According to the terms of the kabuliat on which the plaintiff relies, zar-i-chaharum is payable in the case of a sale or mortgage by way of a conditional sale. If the transaction now in question is not a sale, zar-i-chaharum is not payable under the terms of the kabuliat, inasmuch as it is not a mortgage by way of conditional sale. We have, therefore, to see whether the transaction though it purported to be a usufructuary mortgage was in reality a sale. As has already been said, it is on the face of it a usufructuary mortgage. The learned Judge considered that as the terms upon which redemption can take place are onerous and as the transferors stated in their written statement that a transaction was in reality a sale, it must be regarded as a sale. The learned Judge has also relied upon the evidence of Murgiya Pillay, one of the executants of the document. In our opinion the mere fact of the conditions on which the mortgage can be redeemed being onerous, would not be sufficient to justify the Court in coming to the conclusion that the transaction which purported to be a mortgage was a sale. We have to look to the surrounding circumstances also, but what are the circumstances in this case? So far as we can see the executants of the document were heavily in debt and it is probable that they were prepared to mortgage their property with a right of redeeming it at the end of thirty years. We are not prepared to accept the statement of Murgiya Pillay that he intended to sell the house and that he was not aware that the document to which he affixed his signature was a mortgage, in face of the endorsement of the Sub-Registrar that the terms of the document were explained to the executants and they professed to have understood them. If the statement of Murgiya Pillay is true the document had not his assent and, therefore, by virtue of this document there was no sale in respect of which the plaintiff could claim zar-i-chaharum. There is no evidence from which we can infer that it was intended at the very outset of the transaction to be a sale in the guise of a mortgage-deed. The oral evidence adduced by the plaintiff proves the contrary. It seems to us to be quite probable that in order to evade payment of zar-i-chaharum to the plaintiff the parties to the transaction agreed that a mortgage should be effected instead of a sale, as in that case no zar-i-chaharum would have to be paid.
2. Under these circumstances we are unable to agree with the Court below that the transaction was a sale. We allow the appeal, set aside the decree of the Court below and dismiss the claim of the plaintiff with costs, including in this Court fees on the higher scale.