1. The plaintiffs Nos. 1, 2 and 3 executed a hot kobala in respect of an ancestral holding of their own in favour of defendant No. 1. In consequence of there being no custom in the locality of a transfer of such holdings, it is said that the device of a hot kobala was adopted although the transaction was a sale. The first Court held that no evidence was admissible to prove that, although the document purported to be a hot kobala, the transaction was in reality a sale. The second Court held under Section 92 of the Evidence Act that evidence to prove that it was a kobala was not admissible. It finds, however, from the conduct of the parties, that the kot kobala was really intended to operate as a kobala.
2. There is some divergence of opinion in the different High Courts with regard to the question, whether evidence is admissible to prove that a document purporting to be a mortgage is really a sale. In our Court, however, there is a preponderance of authority on the point that evidence of conduct is admissible to show that what was on the face of it a mortgage, was in reality a kobala. We may refer to the case of Khankar Abdur Rahman v. Ali Hafez 28 C. 256 : 5 C.W.N. 351. The learned Subordinate Judge also has, in one part of his judgment, considered the conduct of the parties, and upon a consideration of the conduct of the parties and the evidence thereon he has come to the conclusion that the kot kobala was really intended to be a kobala.
3. Then comes the question of relinquishment. We have examined the papers. The paper is not in the nature of a relinquishment but in the nature of an application for mutation of names, stating that the creditor had paid the money and that the tenants had executed a deed of kot kabala but it was arranged that the creditor was to pay the arrears of rent and was to be the de facto tenant. This seems to have been accepted by the zemindar in whose serishta the son of the creditor, defendant No. 2, was entered as a tenant. The effect of the whole transaction was that there was a sale of this ancestral holding by the plaintiff in favour of the defendant No. 1 in the name of the son of the defendant No. 2 and that was recognised by the landlord. It does not at all affect the matter that the application for mutation of names was made by the plaintiff No. 2 alone. The finding is that the relinquishment by plaintiff No. 2 in favour of the landlord was in pursuance of an arrangement between the plaintiff on one side and the defendant No. 1 on the other side; in the result, there was a complete alienation of the holding and the plaintiffs are not entitled to redeem.
4. In this view of the case, S.A. No. 3529 of 1913 is decreed with costs and S.A. No. 2915 of 1913 is dismissed without costs.