1. This Rule is directed against an order dated 27th March 1951, passed by the Additional District Judge of 24 Parganas under Section 40A of the Bengal Agricultural Debtors' Act. The applicants before me are the debtors.
2. The only question for consideration is whether the transaction between the predecessor-in-interest of the petitioners and the predecessor-in-interest of the opposite parties was a mortgage or a lease. It appears that on the 11th March 1921, one Ram Krishna, the predecessor-in-interest of the petitioners took a sum of Rs. 120/- from Amulya Charan, the predecessor-in-interest of the opposite parties. The only question involved in this Rule is the character of this money.
3. It appears that in connection with that payment a patta was executed in favour of Amulya Charan in respect of a share of a tank, whereas an ekrarnama was executed in favour of Ram Krishna. The patta purports in the clearest possible manner to be a document of lease whereas the ekrarnama stipulates that if the amount paid as premium be repaid by Chaitra, 1343 B.S. Amulya Krishna or his suc-cessor-in-interest would be bound to return the property. In an application made on 8th April 1945 by the present petitioner for the settlement of the so-called debt constituted by the aforesaid sum of Rs. 120/- the Special Officer held that there was, in fact, a debt and that it had been satisfied by the usufruct of the property enjoyed by the creditors for upwards of 15 years. On appeal, however, the appellate officer held that there was no loan at all and no debt and that decision has been affirmed by the learned Additional District Judge.
4. Even if the point concerned had been an open point, I would have no difficulty in coming to the conclusion that the two documents read together could not possibly constitute a transaction of mortgage or for the matter of that a transaction of loan. A formal mortgage is excluded by the terms of the patta themselves and the case for the debtor is not in any way advanced by the terms of the ekrarnama. The only question which remains to be determined is whether the transaction, not being in form a transaction of loan, was yet in substance such a transaction. It appears that the precise question came to be considered by a Bench constituted of Ellis J. and myself in 'Civil Revn. No. 1565 of 1946, D/- 26-5-1947' and it was held by us that documents, precisely of the same character as the document in the present case, could not possibly constitute a debt between the parties. It was pointed out that the lessee under the terms of the lease that was being considered there, was to pay a certain amount per annum as rent and that the alleged debtors were not bound under the ekrarnama to return the amount of the selami but only had an option to do so. It was further pointed out that the transaction could not possibly be even in substance a loan inasmuch as the substance of a loan is a right in the creditor to demand payment and the substance of a debt is a liability upon the debtor to repay the money. Such right and such liability being absent in the transaction that we had to consider in the previous case, we reached the conclusion that there was no relationship of debtor and creditor between the parties. Sitting singly, I am bound by that decision given in a case which is on all fours with the case I have now before me. As I have stated, even without the assistance of that case, I would have reached the same conclusion.
5. It was contended that the case cited was distinguishable inasmuch as in that case there was only an option to return the selami whereas in the present case there was an obligation. There is no trace of any such distinction in the Ekrarnama in the present case. Here also there is only an option, nothing more and nothing less.
6. It was further pointed out that no rent had been paid and at least no payment of rent had been proved in respect of the lease. I cannot see how that circumstance is relevant in construing the effect of a document. What the relationship created between the parties was will have to be spelt out from instruments themselves. If the lessee did not pay rent, the only effect of that failure is that he was in arrears to his landlord. The nature of the relationship between the parties could not thereby be altered in the slightest degree.
7. In my opinion the correct view was taken by the appellate Officer and the learned Additional District Judge.
8. The Rule is accordingly discharged withcosts--hearing fee one gold mohur.