1. We are of opinion that the judgment of the learned Judge in the Court below must be affirmed although one or two errors into which he has fallen have been pointed out to us. He was not right in using the evidence of the two witnesses who told him that the whole transaction was a mortgage by conditional sale, and he was not right in his interpretation of the Transfer of Property Act by reference to Regulation XVII of 1808. But as regards the first point the circumstances which have always been held to be good evidence of the intention of the parties are sufficiently clearly set out to enable us to deal fully with the matter; and as regards the second objection the Judicial Committee of the Privy Council in the case of Balhishen Das v. W. F. Legge 22 A. 149 (P.C.) : 4 C.W.N. 153 : 27 I.A. 58 : 2 Bom. L.R. 523 : 7 Sar. P.C.J. 601 have gone very near to doing what the learned Judge has done in this case; and in discussing the intention of the Legislature as indicated in Regulation XVII of 1806 and in the Transfer of Property Act they practically held that the effect of the Regulation of 1806 was to make time of the essence of the contract and that the Transfer of Property Act intended to state the existing law and practice of India, that is to say, that there is no difference between the two laws. As a matter of fact the crux of the question raised by the construction of these two Acts is that in the Regulation the word 'by a certain date' is used, and in the Transfer of Property Act the words 'on a certain 'date' is used; and it is contended on the authority of a remark made by one of the Judges in the case of Kinuram Mondol v. Nitye Ohand Sirdar 11 C.W.N. 400 at p. 403 : 6 C.L.J. 208 that the certain date of payment within the meaning of Sub-section (c) of Section 58 of the Transfer of Property Act is an essential element of a mortgage by conditional sale. The Chief Justice says in that case that in the' particular case before the Court he did not think that there was any certain date of payment within the meaning of the section, but he does not lay down that 'on a certain date' means that the tender cannot be made before that date. The certain date which if laid down must according to all rules of interpretation be the last date and it would be both inequitable and impossible to hold that in this country of long distances and poor means of communication a man must go travelling all over the country on the particular day on the chance of finding his creditor and tendering the money to him, and that he could not go on any previous day.
2. Having disposed of these preliminary points we will briefly set out the circumstances which induce us to hold that this transaction was a conditional sale between Muhammadans and not as it purported to be an out and out sale;
3. The first point is that the Jcobala, the kabuliat and the ehrarnami are contemporaneous documents, registration in our, opinion, being the test of when a deed of sale is completed. The drafting and the execution of the deed of sale was eight days before the registration. But the ekrarnama which purported to deal with the deed of sale and the kabultat was registered at the same time in the presence of both parties. We, therefore, think that the transaction was one and indivisible. When we come to look to the ekrarnama itself we find that there is a statement by the purchaser, who is the defend ant, that there was an understanding between the parties that if the total sum of Rs. 150 taken as consideration money of the kobala be paid within 30th Chaitra 1316 without interest he would give up the said property, and in the meantime the plaintiff would pay an annual rent of Rs. 26-10-5 reserved by the kabuliat. This appears to us to be an admission that the intention of the parties was to treat the deed as one of conditional sale. No interest is stipulated for because the deed is between Mahomedans, and a deed of conditional sale is a specially suitable form for Mahomedans and is usually employed by them, because they are not allowed by their religion to take any interest, and it has been held on the highest authority that it is usual and natural for Mahomedans under these circumstances to make their documents appear as far as possible resemble deeds of out and out sale. The next and third circumstance is that the money advanced was considerably lower than the true value of the property, and this certainly is an indication that it was a loan and not a consideration for an out and out
4. The fourth point is that the plaintiff remained in possession, and this is the point which especially distinguishes this case from that of Kinuram Mondal v. Nitya Chand Sirdar 11 C.W.N. 400 at p. 403 : 6 C.L.J. 208 to which we have referred above; and the miadi ryoti kabuliat with a condition of renewal under which he remained in possession clearly fixed the same date for the expiry of the lease as was fixed for the redemption of the property.
5. On all these grounds we consider that the transaction between the parties was a conditional sale in the nature of a mortgage.
6. We now come to the second question of the tender which it is urged was not valid by reason of the whole amount due not having been tendered. Now the finding of the Judge is that the defence that no tender was made cannot be believed, and he finally found that it is impossible to believe that the plaintiff did not make the tender, that is, that the plaintiff did make the tender and the tender that he made was the same as the deposit which two days afterwards with the intervention of a holding he made in the Civil Court. That tender was of Rs. 150 stipulated for which bore no interest and a whole year's rent. It is admitted by both parties that for the rent up to the end of 1315 a suit had been brought by the defendant, and the only rent that remained due was the rent for the year 1316. Now plainly on the terms of the ekrarnama the annual jama is fixed at Rs. 26-10-5 and there can, therefore, be no arrear bearing interest within the year 1316. The only other sums which the plaintiff might have been called upon to tender were the jabeda and bejabeda lawful and unlawful expenses as well as the expenses incurred owing to laches on the defendant's part for the property mentioned in the kubala.' It is obvious that when the plaintiff made his tender he could not possibly divine what bill of costs for these expenses the defendant might present to him. It certainly was the defendant's duty to present him with this bill of costs if there were any; and if he had then refused to meet them it might very well be said that the tender was not a lawful tender; but the defendant placed himself out of Court on this point by denying that there was any tender at all; and the finding of the learned Judge on this point concludes him. The tender, therefore, of Rs. 150 and a year's rent appears to us to have been a full and lawful tender; and upon the finding of the Judge that there was a valid tender we must hold that the amount must have been considered to have been actually produced and ascertained.
7. It is sought to be urged that in consideration of the two slight errors made by the learned Judge which might, the learned Vakil says, have given rise to this appeal, no costs should be awarded to the other side. But we are unable to see the justice of this contention. The costs are not awarded to the learned Judge. They are awarded to the respondent who is put to the expense of coming here to defend his rights which he has already obtained in the lower Court.
8. We, therefore, think that this appeal must be dismissed with costs.