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Kalpu Rai and anr. Vs. Beni Madho Sahu and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All248; 37Ind.Cas.835
AppellantKalpu Rai and anr.
RespondentBeni Madho Sahu and ors.
Cases ReferredJhanda Singh v. Wahid
Excerpt:
construction of document - intention of parties--deed fifty years old, interpretation of. - .....relate and the plaintiffs be put in possession on payment of rs. 436, the amount entered in the sale-deed as the price for which the property was sold by gajadhar rai and purchased by bhola sahu and others. the lower appellate court held that it was not established that the transaction between the parties was really a mortgage transaction and dismissed the claim. i have heard all the arguments which could be urged on either side, and i have considered the documents. it has been held and must be deemed beyond dispute now that the intention of the parties must be gathered from the documents or from the language of the documents viewed in the light of the surrounding circumstances, see jhanda singh v. wahid ud-din 36 ind. cas. 38 : 14 a. l.j. 1189 : 31 m. l.j. 750 : 21 c.w.n. 66 : 20.....
Judgment:

George Edward Knox, J.

1. The sole question argued before me in this second appeal is whether the document which purports to be a deed of sale was in fact a deed of sale or whether it should be read with other documents and be held to be a mortgage-deed. On the 24th of June 1856, Gajadhar Rai executed a deed, No. 39C on the record, in favour of Bhola Sahu and others, and indubitably if this were the only deed, there can be no question that there was a deed of sale in favour of Bhola Sahu and others. There is, however, another deed, No. 35C, dated 25th June 1856, and the further fact that on that date Bhola Sahu and others instituted a suit against Gajadhar Rai for possession. A deed of compromise was filed the same day, and the suit was decided in accordance with the compromise. The main condition in the last deed was that if by Jeth Sudi 15, 1266 Fasli the defendant paid in the amount mentioned in the first of the deeds then that deed and the decree passed in the case were to be set aside; if not, that deed and the decree were to be affirmed. The amount mentioned in the so-called deed of sale was not paid into Court by Jeth Sudi 15, 1266 Fasli, and it was not until the 22nd of November 1913 that the suit, out of which this second appeal has arisen, was instituted in the Court of the Munsif of Basti with a prayer that a decree might issue in favour of the plaintiffs for redemption of the properly to which these deeds relate and the plaintiffs be put in possession on payment of Rs. 436, the amount entered in the sale-deed as the price for which the property was sold by Gajadhar Rai and purchased by Bhola Sahu and others. The lower Appellate Court held that it was not established that the transaction between the parties was really a mortgage transaction and dismissed the claim. I have heard all the arguments which could be urged on either side, and I have considered the documents. It has been held and must be deemed beyond dispute now that the intention of the parties must be gathered from the documents or from the language of the documents viewed in the light of the surrounding circumstances, see Jhanda Singh v. Wahid ud-din 36 Ind. Cas. 38 : 14 A. L.J. 1189 : 31 M. L.J. 750 : 21 C.W.N. 66 : 20 M.L.T. 529 : 38 A. 570 : (1916) 2 M. W. N. 570 : 19 Bom. L.R. 1 : 5 L. W. 189 The language used in the deed of sale is very positive, and while there is much in favour of the contention put forward on behalf of the appellants that the surrounding circumstances are similar to the procedure which was at that time in force with reference to the deeds of conditional sale, there is also the circumstance which cannot be overlooked that more than fifty years had elapsed between Jeth Sudi 15, 1266 Fasli and the date on which the suit out of which this second appeal has arisen was instituted. It was laid down by Lord Chancellor Cranworth in Alderson v. White (1858) 2 De G. & J. 97 at p 105 : 4 Jur. (N.S.) 125 : 6 W. R. 242 : 44 E. R. 924 : 119 R. R. 38, accepted by Sir Barnes Peacock in Bhagwan Sahai v. Bhagwan Din 17 I.A. 98 : 12 A. 387 : 5 Sar. P.C.J. 557 : 6 Ind. Dec (N.S.) 992, and cited and approved by their Lordships of the Privy Council in Jhanda Singh v. Wahid-ud-din 36 Ind. Cas. 38 : 14 A. L.J. 1189 : 31 M. L. J, 750 : 21 C.W.N. 66 : 20 M.L.T. 529 : 38 A. 570 : (1916) 2 M. W. N. 570 : 19 Bom. L.R. 1 : 5 L. W. 189, that 'the Court after a lapse of thirty years ought to require cogent evidence to induce it to hold that an instrument is not what it purports to be.' A fortiori when a Court is to interpret after a lapse of more than fifty years. I accept the view taken by the lower Appellate Court and I dismiss this appeal with costs including fees on the higher scale.


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