JUDGMENT
R.P. Collier, J.
1. The sole question to be decided in both these appeals is whether the plaintiff, in the first appeal as assignee, in the second appeal as execution-creditor, of one Chuknarain Singh, derived from Chuknarain a right to redeem certain villages which he alleged to have been mortgaged by Chuknarain. On the part of the respondents it is not disputed that if he is correct in his interpretation of these deeds, and the villages were mortgaged, he has the right which he claims. But it is contended that the deeds in question did not create a mortgage, but were a sale of the property with a provision for its re-purchase on certain conditions personal to the mortgagor.
2. In order to determine this question it is necessary to consider the circumstances under which the two documents which are relied upon, namely a potta and an ekrarnama of the 15th January 1864, were executed, as well as to examine the documents themselves.
3. The circumstances were shortly these: Ramchurn was the eldest of three brothers, Chuknarain being a half-brother of the other two. Chuknarain purchased a 14-annas share of some 52 villages in a zamindari in the joint names of himself and his two brothers. It was intended that he should have 10 out of the 14 annas, and that each of his brothers should have two annas. He paid the greater part of the purchase-money; the brothers paid a comparatively small part of it, and they were indebted to him. In order to recover that debt, amounting with interest to upwards of Rs. 40,000, he brought an action, and obtained judgments against both of them for something more than Rs. 20,000. These were the transactions between the brothers at the time of the deeds being entered into.
4. On the 15th January 1864 a potta was entered into by Chuknarain Singh, in which he purports to grant in mokurari on perpetual tenure, to his brother Ramchurn, his two annas share in the 52 villages, at an annual rental of Rs. 497. The deed contains these recitals. It speaks of the sum of Rs. 30,005 as the consideration or peshkas nazurana money, “out of which,” Chuknarain Says, “I have taken Rs. 10,000 in cash for payment of the debt due to Baboo Ramchurn Lal, Mahajun,”–that is another Ramchurn,–“and the balance, Co.’s Rs. 20,005, was paid on account of the decretal money, principal with interest, and costs incurred in the Zillah Court and the Sudder Court, as contained in the decision of the Principal Sudder Amin of Zillah Bhagulpore, dated the 10th September 1861, which was confirmed by the decision of the High Court of Calcutta, dated 10th September 1863, due to Baboo Ramchurn Singh, plaintiff, decree-holder, from me, the declarant, defendant, judgment-debtor, after deduction of Rs. 1.323 remitted out of the decretal money due to the said decree-holder, and of the amount of costs incurred in the Zillah Court, and also after deduction of one-half of the decretal money due from Baboo Chundi Purshad Singh, second defendant; and whereas a deed of acquittance of this data, with a receipt stamp affixed thereto, has been obtained by me from the said decree-holder, I, the declarant, have, from the beginning of 1271 Fasli, executed this potta of perpetual mokurari lease,” and so on. The potta, therefore recites that his mokurari lease was given upon an absolute acquittanoe of the debt, and not as a security for its payment.
5. The ekrarnama of the same date must now be taken to be in these terms (there has been a dispute about the terms, which it is not necessary now to refer to). It was stipulated between the contracting parties that when Baboo Chuknarain Singh, or his heirs, paid off the said nazurana money of Rs. 30,000, without interest, from their own pocket, without taking money from any other person, to Baboo Ramchurn Singh and his heirs, then Baboo Ramchurn Singh, or his heirs, would, without demanding interest, return the said potta or perpetual lease to the said Baboo Chuknarain Singh, and Chuknarain Singh should have no claim in respect of the mesne profits for the period of the mokuraridar’s possession.
6. Now the question is, whether, as contended by the appellants, these documents, though they purport on the face of them to be a sale with a power of re-purchase, really amount to a mortgage, or whether, as contended by the respondents, the real intention of the parties was that which appears upon the face of them, namely, that there should he a sale, that the debt should be acquitted, and that there should be a power of re-purchase under certain conditions personal to Chuknarain.
7. Both Courts have found in favour of the contention of the respondents. Such finding, in the first place, is entirely consistent with the terms of both documents. The opposite finding would not be consistent with the terms of either, certainly not with the terms of the potta, which speaks of the debt having been acquitted and discharged. To hold that it was not acquitted and discharged, but that these documents were really a security for it, would be to contradict the terms of the instrument.
8. Then, again, looking at the surrounding circumstances, among other things, at the value of the property, which appears to have been fairly ascertained, and at the relations of the parties, their Lordships are of opinion that the Courts have come to the right conclusion, that this transaction is in fact what it purported to be, and there is no sufficient ground for holding it to be what it did not purport to be, namely, a mortgage.
10. Under these circumstances their Lordships will humbly advise Her Majesty that these appeals be dismissed, and the judgment be affirmed. The appellant must pay the costs of the appeals; but as they have been consolidated, there will be only one set of costs.
