Bombay High Court
Gurunath Balaji Mutalik vs Yamanava Nalarao Divan on 1 January, 1911
Equivalent citations: (1911)13BOMLR240
JUDGMENT Basil Scott, Kt., C.J.
1. We agree with both the lower Courts in holding that the document, Exhibit 9, which is the subject of consideration, is not mortgage, for no debt existed between the parties to it. It is a sale with an option of repurchase and the question now is whether thirty-five years after its execution the grandson of the original vendor can exercise the option of purchase against the daughter-in-law of the original vendee. As translated by the Subordinate Judge the material portion of the document is: "I have given the land into your possession; if perhaps at any time I require back the land, I will pay to you the aforesaid Rs. 600, and any money you may have spent on bringing the land into good condition" and purchase back the land". The learned Subordinate Judge held that the covenant to repurchase was purely personal, and we do not think that the language of the document need be strained in any way to arrive at this conclusion. The alternative would be that the covenant is enforceable according to the intention of the parties for all time, a conclusion which would not be favoured by any Court.
2. The case is very similar to that of Stocker v. Dean (1852) 16 Beav. 161, which was followed by the High Court of Calcutta in Shreemutty Tripoora Soonduree v. Juggur Nath Dutti (1875) 24 W.R. 321.
3. The plaintiff, therefore, has in our opinion no right to enforce the covenant and his suit was rightly dismissed with costs.
4. We affirm the decree of the lower Court and dismiss the appeal with costs.