1. The suit out of which this appeal has sprung was one for redemption, and the sole question for determination, here is whether the parties stood in the relation of mortgagor and mortgagee so as to entitle the plaintiff to maintain the suit.
2. The facts are that on the 16th September 1867 Ajodhia Pande, the father of the plaintiff-appellant, executed a sale-deed conveying the property in suit to Biseshar Pande who is now represented by the defendants. In this document which is described by the executant as a deed of absolute sale (bai la kalami), it was stated that the vendor being in need of money had sold the property for a sum of Rs. 400. It was further recited that the purchase-money has been received and that the vendee had been put in possession. On the same date a second document, viz., an agreement (iqramama) was executed by the purchaser in favour of the vendor. After referring to the sale which had taken place, this deed went on to say that if at any time the vendor should pay the entire amount of the purchase-money in a lump sum, the vendee would without making any objection surrender the property to him. One condition was insisted on by the purchaser, namely, that the money which was to be repaid was to come out of the vendor's own pocket, it was not to be raised on loan or by making any hypothecation or transfer of the property.
3. The Court of first instance came to the conclusion that the execution of these two deeds represented a transaction of mortgage by conditional sale, and gave the plaintiff a decree for redemption. The Munsif was led to this finding principally by reason of the fact that the agreement fixed no period for the repayment to the purchaser of the purchase-money.
4. In appeal the learned District Judge found that the transaction between the parties was one of pale with an agreement for re-purchase. The Judge was of opinion that there was nothing to indicate the existence of any debt which it was the intention of the purchaser to secure by taking the conveyance. Accordingly he reversed the order of the first Court and dismissed the suit. The argument here is that on a true construction of both these documents the transaction amounted only to a mortgage.
5. I am unable to accept the contention and hold that the order of the Court below is correct.
6. A number of authorities have been quoted both here and in the Courts below, but each case of this kind must be decided on its own facts. It is settled law that a mere stipulation for repurchase will not convert a sale into a mortgage and if nothing more is made to appear than that a sale has been made with a contemporaneous agreement by the purchaser to let the vendor have the property back on a refund of the price, the transaction must take effect as a sale. Every mortgage imports a debt and in order to hold that a transaction of this character amounts to no more than a mortgage, there must be something to show an intention to treat the property as security for the payment of a debt. I can find nothing in the language of the two documents which affords evidence of any such intention. It does not appear that the vendor Ajodhia was in debt to his purchaser: all that is said in the sale-deed is that he wanted money and was, therefore, selling his property, and again we have the fact that the deed declares the transaction to be an out and out sale. As for the agreement it cannot be said to show that the purchaser, Biseshar, regarded the property merely as security. On the contrary it would rather appear from the condition which he made that he regarded the property as his own, for he refused to accept payment of the money in case Ajodhia attempted to raise it by any dealing with the property, in other words, he refused to recognise any further right on the part of Ajodhia to deal with the property as his own.
7. The transaction was, in my opinion, a sale and not a mortgage.
8. This is the only point raised on behalf of the appellant and it is decided against him.
9. The second ground in the memorandum of appeal was not pressed. The suit was a suit for redemption and as it is found there is no mortgage it was bound to fail. The appeal is dismissed with costs, including fees in this Court on the higher scale.