Mumbai Court March 1905 Judgments

Ansa Tuka Vs. Kenchappa Satappa

Court: Mumbai

Reported in: (1906)8BOMLR669

Russell, J. 1. This case has been treated as if the question involved is whether the document in question is one of sale or mortgage, but the real question that should have been decided is whether the real agreement between the parties was embodied in this document.2. We therefore remand this case to the lower appellate Court for a finding on the following issue :-Whether there was any promise made to Laxuman by the ostensible vendee that the document should be treated as a mortgage, or in other words, that the agreement contained in that document would not be enforced as a sale.3. See Pertap Chunder Ghose v. Mohendranath Purkait I.L.R. (1889) Cal. 291, where at page 297 Sir R. Couch in delivering the judgment of the Privy Council observes : 'Further, if there is any stipulation in the Kabulayat which the plaintiff told the tenants would not be enforced, they cannot be held to have assented to it and the Kabulayat is not the real agreement between the parties and the plaintiff cannot s...