1. The question for decision in this case is, whether under the terms of the instrument, dated the 23rd December 1881, the plaintiff is now entitled to recover possession of the property. It is recited therein that the property is conditionally sold, for the sum of Rs. 462 received, to the defendants, who were to enjoy the property up to the 23rd December 1883. On that day, the plaintiff was entitled to pay the above sum with the value of improvements and recover possession from the defendants. Then follows the stipulation in these words, on which the defendants rely: 'If we fail to pay the principal amount of this sale deed and the value of all the improvements to be made by you till then, in one lump sum in 60 years from this date, i.e., on 30th of Margashira Bahula of the year Vishu, corresponding to 21st December 1941, and redeem the property of the conditional sale....' If not redeemed even on that date, the defendants' title became absolute. The contention on behalf of the defendants is, that on the plaintiff 's failure to redeem on the 23rd December 1883, the defendants are entitled to hold the property till the 21st December 1941, the only date on which the plaintiff could redeem and that the suit is, therefore, premature. The Judge translates the passage in dispute, which is in Canarese, thus: 'We will pay on 21st December 1941, which is 60 years from now, the purchase money and improvements....,' and holds that the suit is premature, as the plaintiff can redeem the property only on that date.
2. Taken alone, the stipulation in question apparently supports the conclusion of the Judge. But read as a whole, we are not satisfied that the Judge is right and that the Munsiff who has taken the contrary view is wrong.
3. It will be noticed that though the properties are stated to have been conditionally sold, it is not contended that the sale has become absolute or that the right of redemption is extinguished and, therefore, the question is whether there is any restriction placed on such right.
4. With reference to the first period in question, from 1881 to December 1883, the defendants' right to possession is clearly recognised, as it is stated therein that they are to enjoy the property at their pleasure during that time. It is also stated that it is on that date alone, i.e., not before, that the plaintiff is entitled to redeem. The defendant' s right to possession till 1941 is not similarly recognised; nor is it said that on that date alone, the 21st December 1941, is the plaintiff entitled to recover. The provision as to payment of improvements supports the same view. As improvements may be made up to the last day, any valuation, even if the defendants agree to it, being made prior to that date will not be final and it would obviously be extremely difficult to make the valuation and tender the amount due on the same day, i.e., 21st December 1941.
5. On the whole, therefore, we are inclined to agree with the District Munsif. We accordingly set aside the decree of the District Judge; as the District Judge has not, however, decided the issue as to the value of improvements, we direct him to submit a finding on the second issue.
6. The finding shall be submitted within six weeks and seven days will be allowed for filing objections.
7. [In compliance with the above order, the District Court submitted the following finding on the second issue, viz., that the value of improvements, to which the defendants are entitled on surrendering the land, is Rs. 263-4-0.]
8. This second appeal coming on for final hearing after the receipt of the finding of the lower Court, the Court delivered the following.
9. We accept the finding. The decree of the Lower Appellate Court is reversed and that of the District Munsiff restored with costs in this and in the Lower Appellate Court. Time for redemption is extended to three months from this date.