1. This is an appeal by the first defendant against the decision of the Additional Judge of Sylhet, dated the 15th of May 1916, affirming a decision of the Additional Munsif of Karimgunge, dated the 12th June 1915.
2. The case turns upon two documents which will be found at pages 17 and 19 of the paper book. By the first of these documents Exhibit A, which is dated the 1st Chaitra 1305, one Sheikh Makbul transferred to Arjad Ali, the appellant before us, and to one Mobarak Ali the land comprised in the document. The document states that the vendor divests himself of his maliki right in the property and that the purchasers down to their children have the right and power to make sale and gift, There is no doubt that this document upon the face of it is an absolute sale. On the same date the same parties entered into another document, whereby it was agreed that if Makbul or his successor paid the entire amount of the purchase consideration of Ra. 13412 within two years from the date of the deed, the purchasers Arjad AH and Mobarak Ali would re-transfer the premises to Sheikh Makbul. Both the lower Courts have held that upon the surrounding circumstances and upon the construction of those documents the transaction amounts to a mortgage by way of conditional sale. The Munsif has found that the stamp paper upon which these documents were written was purchased by Makbul. He has found that the possession of the premises remained with Makbul. It is true that by virtue of the kabuliyat he had to pay rent which both Courts, we think, quite rightly take to be hot merely rent but a device by Muhammadans to get over the difficulty with regard to the payment of interest.
3. Under these circumstances we think that the decisions of both the lower Courts were correct and that upon a true construction of these documents and having regard to the surrounding circumstances, the transaction was not merely a conditional sale but a mortgage by way of conditional sale.
4. The learned Vakil for the appellant referred us to the case of Kinuram Mondol v. Nitye Chand Sirdar (1) as authority for the proposition that as the right to re-purchase was not exercised within the two years named in the Ekrarnamah, the documents should be taken to be a conditional sale whereby upon failure to pay the amount named within two years, the title of the appellant and his co-purchaser became absolute. But it appears from a perusal of the report at page 403 that the purchaser in that case was let into immediate possession, that be received rents, that there was no provision as to the payment of any interest and that the purchaser paid the expenses of preparing the deeds of conveyance. Those are facts which are foreign to the case before us, and for the reasons already stated we think that the decision of both the lower Courts was correct and this appeal must fail. It is accordingly dismissed with casts.