Bombay High Court
Sayad Mir Gazi Sayad Kutbudin vs Mia Ali Maulvi Abdul Kadir on 1 January, 1914
Equivalent citations: (1914)16BOMLR582
JUDGMENT Beaman, J.
1. On the 9th of September 1903 the plaintiff and the defendant undoubtedly intended to mortgage the property now in suit. The defendant being a good Mussalman scrupled to take interest. It was accordingly agreed that the plaintiff should nominally sell the property out and out to the defendant and thereafter attorn to him for an amount of rent which would represent reasonable interest. This conveyance was executed and duly registered. Contemporaneously the defendant executed an agreement to the plaintiff to re-convey the property for the same consideration, namely, Rs. 1,499 when called upon to do so. If we look at the true intention of the parties we should have no doubt but that this was really, though in form a sale, a mortgage. Inasmuch, however, as the plaintiff very naturally did not register his part, that is to say, the agreement given to him by the defendant at the time, the Court below refused to treat the whole transaction together as a mortgage. So far defeated, the plaintiff fell back upon the alternative and claimed to have his agreement of the 9th of September 1903 specifically enforced against the defendant. The lower appellate Court refused to give effect to the agreement to reconvey on the ground that it was a document compulsorily registrable under Section 17, Clause (b), of the Registration Act. In our opinion, the learned Judge was wrong. Separated entirely from the conveyance of the defendant we can see in this document nothing more than an ordinary agreement to sell, and such agreements are expressly exempted from the operation of Section 17, Clauses (a) and (b), of Act III of 1877 by Clause (h) as it stood in that section and now Exc. (V). It has been strenuously contended, on behalf of the defendant-respondent here, that inasmuch as this agreement to reconvey contains words to the effect that on payment of the consideration the defendant is to give up the land and re-convey, there is a direct interest created by the instrument itself in the land. We think, however, having regard to its form as a whole that it is no more than an ordinary agreement to re-convey when called upon to do so, and we are the more disposed to adopt this view since there can be no doubt whatever but that the whole justice of the case is on the side of the plaintiff. We, therefore, think that the decree of the Court below must be reversed and that the plaintiff must now be decreed specific performance of the agreement of the 9th of September 1903, that is to say, that on the plaintiff paying to the defendant Rs. 1,499 within three months of the date of this decree, the defendant be ordered to reconvey the property in suit to the plaintiff and put him in possession thereof. The plaintiff must have all his costs after the remand, Up to remand the parties must bear their own costs.