The Judgment of the Court was delivered by

Wallis, C.J:— The questions arising in this appeal from the decree of the Temporary Subordinate Judge of Nellore are whether the three plaintiffs as auction-purchasers of the right, title and interest of the 2nd defendant, are entitled to redeem the suit lands in possession of the 1st defendant on the footing that the transaction of 4th August 1908 evidenced by Exhibits X and U was a mortgage by conditional sale, or in the alternative are entitled to a reconveyance of such lands from the 1st defendant on the footing that the transaction was a sale by the 2nd defendant to the 1st defendant with an agreement to reconvey and that the price was duly tendered and refused. It was not disputed in the appeal that a form of tender was gone through, but it was denied that the necessary six lakhs were tendered and that the 2nd defendant and those acting with him were in a position to produce so large a sum of money. The Subordinate Judge has found for the plaintiffs on both questions, and the 1st defendant has appealed. The 1st plaintiff belongs to a family of landowners who are related to the 2nd defendant the Rajah of Kalahasti and is the brother of the 15th witness for the plaintiff who took a leading part in these transactions. He was the elected representative of the Madras Zamindars in the Viceroy's Council, and now fills an even more responsible position. The 2nd plaintiff is a retired District Judge, and the 3rd plaintiff is a Nellore Landholder.

2. The 2nd defendant, now deceased, the Rajah of Kalahasti, an incumbered estate which has been much before the Courts, succeeded to the estate in 1905 at a time when its affairs were in a state of the utmost embarrassment. It has been taken over with the adjoining estate of Karvetnagar in 1899 by the Court of Wards after the Court of Wards Regulation had been amended for the purpose, and under the provisions of the amended Regulation suits had been stayed and the execution of decrees suspended to allow the Court of Wards to arrange for the liquidation of the debts. In 1905 the Court relinquished the task as hopeless, and handed back the estate to the proprietor with the result that the creditors were again at liberty to pursue their remedies and execute the decrees. The proprietor died shortly afterwards in the August of that year, and was succeeded by his uncle, the 2nd defendant, who was also his natural father having given him in adoption to the late Rajah. The position of the 2nd defendant on his succession though nearly desperate was better than that of his neighbour of Karvetnagar, as none of the three taluks which constituted the estate was the subject of a usufructuary mortgage. Consequently he became entitled to collect the rents of the estate so long as he could stave off sales in execution, and it is material for the purpose of the present case to note that he succeeded in retaining possession of the suit taluk until the transaction now in question in 1908, and of another taluk till 1911 when it was sold to the Mahant of Tirupati. All that is material for the purpose of the present case is that between 1905, the date of his succession, and 1914, the date of the alleged tender, large sums of money must have come into his hands as against which must be set the fact that he had to defend an unsuccessful suit by the widow of the late Zamindar disputing his right to the succession. Any accumulations from this source would of course have been liable to attachment by the creditors of the estate, and this may account for the failure of the plaintiffs with whom the Rajah was acting to give full evidence as to his personal affairs, and is a factor not be lost sight of in considering the 1st defendant's case that the 2nd defendant, was not in a position to find six lakhs for the alleged tender on the 31st August 1914. As regards the question whether the transaction of 4th August 1908 evidenced by Exhibits X and U was a mortgage, the findings of fact of the Subordinate Judge in his elaborate and careful judgment have not been successfully challenged on either side, and I shall only deal with the finding as to undervalue. Raja Venugopal, the brother of the Rajah of Venkatagiri, had a mortgage over the taluk in which the suit lands are situate, and obtained a decree in execution of which he brought 27 villages to sale in March 1908, leaving the 196 villages which are the subject of this suit unsold. These 27 villages then fetched Rs. 3,46,000 but the sale of 24 of the 27 villages was afterwards set aside on the ground of undervalue, and pending appeal the dispute was settled by the purchasers from the vendee paying an additional Rs. 60,000 so that eventually the 27 villages realised over 4 lakhs, and I entirely agree with the Subordinate Judge's conclusion in paragraph 53 that the reasonable inference is that the total price represented 15 year's purchase of the year's income less the peishcush. This first sale left Rajah Venugopal's decree still unsatisfied to the extent of nearly six lakhs, and he was accordingly taking steps to bring the 196 suit villages to sale when the 2nd defendant obtained six lakhs from the 1st defendant by the suit transaction, a sum which was little more than sufficient to satisfy the decree and stay the sale. Now if 27 villages bad fetched Rs. 3,46,000 in March 1908 a price which was being challenged for inadequacy it is quite clear that six lakhs cannot have been anything like the market value in the following August of the remaining 196 villages. There is no evidence, and no reason to suppose, that the 27 villages differed materially from the remaining 196 villages of the Pamur taluk, still less that they differed to such an extent as to make the value of these 27 villages equal to two thirds of the value of the 197 remaining villages of the taluk which are the subject of the present suit and I entirely agree with the learned Subordinate Judge that in August 1908 six lakhs in no way represented the market value of the 196 villages or the sum which they were likely to fetch at a Court sale. The Subordinate Judge has found that they were worth 15 lakhs even in 1908 relying on negotiations and bids which took place in 1914, and, without committing myself to his exact figure, I have no hesitation in agreeing with him that in August 1908 six lakhs would have been a most grossly inadequate price and much less than could have been realised by private sale or even by a Court sale. Further there is the evidence of 15th witness for plaintiffs who was intimately acquainted with the affairs of the estate that the gross income of the suit villages is about Rs. 1,50,000, peishcush about Rs. 50,000 and the cost of management 7 or 8 per cent, of the gross income. The 1st defendant who has been in possession of the accounts of the suit villages since 1908 made no serious attempt to dispute these figures by reference to the accounts; and the admission of 13th witness for defendant that the peishcush and road cess amount to Rs. 55,000 strongly corroborates the evidence of 15th witness for plaintiff that the gross income was Rs. 1,50,000, having regard to the usual proportion existing between the beriz or gross revenue and the peishcush, to say nothing of the exceptionally favourable terms on which this and the three neighbouring zamindaries were settled in 1802 as fully appears in the Secretary of State v. Maharajah of Venkatagiri(1). There is the further fact relied on by the Subordinate Judge in paragraph 61, that there was really no bargaining at all about the market value of the property. The 1st defendant himself admits that there was no discussion between him and the 2nd defendant's Dewan as to the price to be paid, and though he and his witnesses speak to making some independent enquiries, this is as unreliable as the rest of the evidence of the defence and has been rightly disregarded.

3. The facts that there was no discussion as to the price, that the money was obtained to avert a Court sale, and that the fact which I hold to be fully established that the alleged price was out of all relation to the market value are circumstances which no doubt point to a mortgage rather than a sale. If we were at liberty to apply the decision of Courts of Equity in England I think that these findings would support the inference that the conveyance Exhibit X was originally intended as a security for money and must be treated as a mortgage. As observed by the learned Editor of Coke on Littleton 504(b) in a note which is cited by Story “if the money paid by the grantee was not fair price for the absolute purchase of the estate conveyed to him; if he was not let into immediate possession of the estate: if instead of receiving the rents for his own benefit, he accounted for them to the grantor and only retain rd the amount of the interest; or if expense of preparing the deed was borne by the grantor, each of the circumstances has been considered by the Court as tending to prove that the conveyance was merely pignorititious.” I do not think the decisions referred to in support of these propositions are inconsistent with the later decision in Alderson v. White(2) but it has been held by the Privy Council, as regards transactions which no doubt arose before the Transfer of Property Act that these equitable decisions are inapplicable in India Balkishen Das v. W.F Legge(3) where their Lordships after referring to the provisions of section 92 of the Indian Evidence Act observed that cases such as these “must be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manger the language of the documents is related to existing facts.” This ruling which was followed in Jhando Singh v. Vahid-uddin(4) and has been approved in Maung Kyin v. Ma Shwe La(5) which however was not a case of a sale-deed and agreement to re-convey, clearly refer to the language of proviso 1 to section 92 of the Indian Evidence Act, and the surrounding circumstances referred to in the proviso are circumstances which enable the Court to ascertain and give effect to the full intention of the parties as expressed in the document itself and evidence of surrounding circumstances is not admissible under the proviso for the purpose of contradicting the terms of the document. Following these decisions this court has recently held in Muthuvelu Mudaliar v. Vythilinga Mudaliar(6) that although, section 58 of the Transfer of Properly Act recognises mortgages by conditional sale where the mortgagor ostensibly sells the mortgaged properly on condition that on payment of the mortgage money on a certain date the buyer shall transfer the property to the seller, the section has not the effect of raising a presumption that a sale with an agreement to reconvey is a mortgage; and having regard to the decision just cited I think we are precluded from holding this transaction to be a mortgage unless it appears on the face of the documents read in the light of the surrounding circumstances that it was the intention of the parties that it should be a mortgage. A strict application of this rule may have the effect of excluding most of these transactions from the class of mortgages by conditional sale, but on the other hand it will have the effect of putting an end to the uncertainty in which these transactions have been involved and the litigation to which they have given rise. This appears to me to be the only alternative if we are precluded from treating transactions of this kind as mortgages on the ground on which I think the Courts of equity formerly proceeded that it would be inequitable to give effect to them as sales.

4. As regards the conveyance, Exhibit X the opening recital that “the Vendor has in order to prevent the property being sold in public auction and realising much less than what they are actually worth, agreed to convey by private sale the said villages to the said purchaser for the sum of 6 lakhs only” does not in my opinion help either side. It does not say or suggest to my mind that six lakhs is taken as the true value which every one knew it was not that it is only a recital that the transaction would prevent the properties being sold by Court auction for much less than they were worth whilst at the same time securing to the vendor full means of getting back the properties sold on repayment of the price. The Subordinate Judge has found evidence that a mortgage was intended in the fact that the conveyance itself reserves a right to a reconveyance, but I think that this a mere matter of drafting on which no such inference can be safely rested. The fact that the right to a reconveyance is mentioned in Exhibit X as well as in Exhibit U appears to me to make no difference in substance. Nor do I think that the reservation of mineral rights throws any light on the question, as it is equally consistent with a mortgage or a sale. The evidence is that no minerals that could be profitably worked had been found in the estate. The plaintiffs also rely on the stipulation in Exhibit U that the vendor “the 1st defendant agrees to sell and the 2nd defendant agrees to purchase the villages… the said sum to be paid by the purchaser to the vendor on the 31st of August 1912, the 31st day of August 1913 or the 31st day of August 1914 and not earlier as showing that the 2nd defendant was as much bound to repurchase as the 1st defendant was to resell, and therefore this must be regarded as a stipulation for the repayment of the mortgage money. I doubt if this is the correct interpretation of the conveyance, the words “the vendor agrees to sell and the purchaser to purchase” which appear to be taken from some English precedent do not in my opinion create any real reciprocity of obligation. It is clear that the 1st defendant on any construction would only have been entitled to call for a repurchase at the end of August 1914 and not at the earlier date referred to and I doubt if this provision can be said to show an intention of the parties to give him that right even on the 31st August 1914. The provision in clause ii of Exhibit U that the vendor, the 1st defendant is to be entitled solely to the possession and enjoyment of the villages till the sum of six lakhs is paid to the vendor and a conveyance executed, and the further provision in clause iii that in the event of his failure to pay before the 31st August 1914 the 2nd defendant is to lose all his rights to re-purchase, though consistent with the transaction being a mortgage, do not of themselves sufficiently show such an intention. There has been much discussion as to the bearing of the obscurely worded clause iv, as to the distribution between the 1st and 2nd defendants of compensation paid under the Land Acquisition Act for land taken up between the date of Exhibit U and the date of the reconveyance. The compensation money is to be taken, “unless Government otherwise expressly provides” to be equivalent to 20 years' rent of the land acquired, and the 1st and 2nd defendants are to be entitled each to his proportionate share of the compensation money, the share of the money due to the purchaser “if need be” “being given credit for towards the sale price of six lakhs already mentioned and agreed upon.” The words “unless Government otherwise expressly provides” can only mean, having regard to their position in the sentence, unless compensation is awarded on the basis of some other number of years purchase. Clause IV does not show clearly on what principle compensation is to be apportioned, and the language being defective oral evidence is inadmissible under section 93 of the Evidence Act to supply such defects. Taking the clause as it stands the provision that the 1st defendant's share of the purchase-money is “if need be” to be given credit for towards the sale price of six lakhs is too vague and uncertain to have any effect given to it. Possibly under the scheme of distribution what was contemplated but not provided, the whole of the compensation money might be retained in some circumstances by the 1st defendant leaving nothing for the 2nd defendant. This could only happen in a period longer than the three years allowed by the terms of the document if or repurchase, and would so point to a mortgage, but it is far from clear what was meant by “if need be” and on the whole after very careful consideration I find it difficult to say that the transaction has been sufficiently shown to be a mortgage. If we are to regard only the terms of the documents it must always be difficult to find satisfactory reasons for saying that the transaction is not what it appears to be on the face of it.

5. The next question for consideration is whether, assuming it not be a mortgage, the purchase-money was duly tendered by the 2nd defendant to the 1st defendant on the due date, the 31st August 1914.

[After a discussion of the evidence His Lordship continued.] For these reasons I am not prepared to differ from the Subordinate Judge's finding on this question.

6. Mr. A. Krishnaswamy Iyer, who appeared with Mr. Norton also contended that the plaintiffs are not entitled to sue because what was attached and brought to sale was only the 2nd defendant's right to a reconveyance and that this was “a mere right to sue” and incapable of transfer under section 6 of the Transfer of Property Act. For some reason or other, the Select Committee which was responsible for the amendments introduced into the Act in 1900 struck out the words “for compensation for a fraud or for harm illegally caused” from section 6(e) making it read “a mere right to sue cannot be transferred,” whilst at the same time providing for the transfer of actionable claims as denned in the Act. Now in the first place I do not think that the amendment in question should be construed as affecting the attachment and sale of property provided for in the Code of Civil Procedure. Section 60 of that Code, which makes the property of the judgment-debtor liable to attachment, except only in clause (e) “a mere right to, sue for damages.” In these circumstances a right to get a reconveyance of and possession of property worth fifteen lakhs for a payment of six lakhs seems to me to be property of a very valuable kind which is attachable and saleable under the provisions of the Code of Civil Procedure, notwithstanding the amendment of the Transfer of Property Act. Further the prohibition of the transfer of a mere right to sue is only an application to India of an equitable doctrine, and should not be read as invalidating transfers such as this which would not be regarded as transfers of a mere or bare right to sue in England. A contract to sell or lease land is assignable both in England and in India and does not cease to be assignable and become a mere right to sue, as contended before us, merely because the other party to the contract has refused to perform it. Further as held by this Court in Venkateswara Iyer v. Raman Nambudri(7) this contention is directly opposed to the provisions of the Specific Relief Act under which performance of such a contract is enforceable under section 23 by the transferee as the “representative” of the transferor. In Glegg v. Bramley(8) Parker, J., has explained the equitable doctrine as to the assignment of a bare, right to sue in a passage which has since been cited with approval in County Hotel and Wim Company v. London and North Western Railway(9) and Ellis v. Torrington (10) and has shown that the test is “whether the subject-matter of the assignment, was in the view of the Court, property with an incidental remedy for its recovery, or was a bare right to bring an action either at law or in equity.” In my opinion the 2nd defendant's right would have been treated in equity as property.

7. The last objection is that on the 31st August 1914 the 2nd defendant had no right to tender because his interest had passed to the 1st defendant under the Court sale of 25th August, which has never been confirmed because the 1st defendant never paid the balance of the purchase-money. It would appear that he never intended to do so and merely purchased through a namelender with a view to prevent the tender. In support of this objection the decision of the Privy Council in Bhavani Khar v. Mithura Prosad(11) was relied on. That was a case under the old Code in which the sale had been duly confirmed, and no question arose as to the effect of a sale which went off for failure to complete. Section 65 of the present Code provides that “where immoveable property is sold in execution of a decree and such sale has become absolute” (i.e, been confirmed) “the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.” I think the converse is equally true, and that, where the sale is not confirmed, nothing is to be deemed to have vested in the purchaser just as under the Registration Act a sale does not take effect till registration but on registration dates back to the date of sale. If registration is not effected within the prescribed period the conveyance is inoperative. Mr. Rangachari for the respondents has also called our attention to the provisions of Order 21, rule 84 that, if the auction-purchaser does not make the deposit the property is to be resold which goes to show that it was not vested in the first purchaser and to the provisions of rule 86, that if the property is to be resold he is to forfeit all claims to the property. He has also referred to rule 89 which we recently had to consider. In that rule the words “the person owning such property” include in my opinion not only the judgment-debtor but also a transferee by private sale after attachment and before the Court sale. The wording of the rule proceeds on the assumption that the auction-purchaser has not yet become the owner, and I think that the 1st defendant who never completed the purchase never became the owner and on the 31st August 1914 the 2nd defendant has not lost his right to tender, if so advised. Even if this were not so and the 1st defendant became the owner as from the date of the sale, the effect of his purchase would be to render the performance of the tender impossible by uniting both the right and the liability in himself. If in such a case he afterwards failed to complete, I doubt if he could be treated as having destroyed the interest which he had acquired only provisionally and as having enlarged the interest which he already had by failing to make the tender. It would, I am inclined to think, be more equitable to regard an actual tender as unnecessary in the circumstances and to order him to reconvey the property on receiving the amount of the tender. It is however unnecessary to express any final opinion upon this apparently novel question. In the result the appeals fail on the merits, but on the view we take of the case the decree of the lower Court must be varied by omitting the words “his mortgage and other” in clause 1 and the whole of clause 2, which are inapplicable to a decree for specific relief. The money has, it is stated, already been paid into Court pursuant to the decree. The appellant must pay the respondent's costs. Fee under rule 46 of the rules under the Legal Practitioners Act is fixed at Rs. 3,000.

8. Our decision that the suit cannot be treated as a suit to redeem the mortgage but must be treated as a suit for specific performance of a contract and damages necessitates the modification of the decree. We have heard much learned arguments and several cases have been cited to us as to what is to be done in a suit like this, where the suit is due to the vendor's default and refusal to complete the contract. The result of the cases which have been cited to us, as might be expected, is to confirm what is stated in paragraph 1402, 1404 and 1410 of “Fry on Specific Performance.” The question of the interest payable by the purchaser is generally a matter of express stipulation and most of the English cases are interpretations of the particular stipulations in the contract. In one of the earliest cases, Esdaile v. Stephensen(12) the Vice-Chancellor (Sir John Leach) says, “where there is no stipulation as to interest, the general rule of the Court is, that the purchaser when he completes his contract after the time mentioned in the particulars of sale shall be considered as in possession from that time, and shall from thence pay interest at £4 per cent, taking the rents and profits.” There is, however, one exception to that rule and that is that, when to allow the defaulting vendor interest and leave the purchaser the profits would benefit the defaulting vendor, in consequence of the interest being in excess of the mesne profits as laid down by the Vice-Chancellor (Sir John Leach) in the case just cited. In such a case the vendor is not to have more than the amount of the mesne profits. Ordinarily one side would have to pay the other the difference between the interest and the mesne profits. That case necessarily implies that even where the vendor is in default he does not lose his right to interest on the purchase-money in the absence of special stipulation or circumstances.

9. There is one class among others of special circumstances which disentitles (a defaulting vendor to interest and that is when they are such as to require the purchaser to keep the purchase-money lying idle and unproductive, or at least to justify him in doing so.) That case is dealt with in paragraph 14-0 of Fry on Specific Performance. Those circumstances exist here because the plaintiff paid on the 5th March 1919 into Court the purchase-money of six lakhs. It makes no difference in our opinion that this was paid on the footing of a mortgage rather than on the footing of specific performance. The vendor was equally unwilling to accept payment on either footing. We think it would be unfair to throw the loss upon the plaintiffs by making them liable for interest after their payment into Court of a sum of six lakhs which is equivalent to the purchase-money due. The first defendant therefore will be entitled to interest on the sum of six lakhs from 1st September 1914 up to 5th March 1919, the date of the deposit at 6 per cent, per annum. On the other hand, the plaintiffs will be entitled to mesne profits from 1st July 1914 until possession or until the expiry of three years from this date, whichever may be earlier.

10. A final objection has been taken that the plaintiffs did not, by their purchase, acquire any right to rents and mesne profits, because a mere right to sue for damages is not attachable under section 60 of the CPC. I am not prepared to agree with this contention. Here it is not a mere right to sue for damages which is;being attached but it is the whole interest of the judgment-debtor that was brought to sale. I do not think that this case comes within the meaning of the provisions either of the Code of Civil Procedure or of section 6 of the Transfer of Property Act. What was sold in the present case was as shown in Exhibit B, the right in pursuance of the conveyance deed of 4-8-08 and the reconveyance agreement of the same decree to obtain a reconveyance deed and possession in respect of all the rights owned in all these villages by (first defendant) Raja Bahadur Narasingerji Gyangerji Garu and all other rights relating to these villages.”

11. No separate orders are necessary as regards Appeal No. 57 or the Memorandum of objections in that appeal as the matters concerned therein are dealt with in our judgment.

12. There will be no order as to costs either in that appeal or on the memorandum of objections.

Oldfield, J.:— I concur and therefore only deal shortly with the points taken.

13. As regards the character of the transaction effected by Exhibits U and X, alternative grounds of decision have been suggested to us. If we were at liberty to adopt these which are relied on by plaintiffs and might, if I understand the authorities correctly, find favour in English Courts, we should be entitled to lock, not solely at the form of the transaction, but also at surrounding circumstances as indicative of the intention of the parties: and among those circumstances evidence as to the existence of marked disproportion between the value of the property and the amount paid for the sale would be admissible as supporting its ostensible character. It is seldom easy in this country to form an opinion as to the value of landed estates, since accounts are not usually exhaustive or clear, the efficiency of management varies widely and the ex tent, to which values have undoubtedly appreciated within recent years is beyond exact definition. In this case moreover, the accounts of the 2nd defendant's management before 1908, the date of Exhibits U and K, have not been produced. But it does not follow that any inference against plaintiffs is justified on that ground. For 13th witness for defendant, who was in charge of the property under 2nd defendant before that year, only said first that the accounts were handed over to 9th witness for defendant, when 1st defendant's possession began, and afterwards that only the accounts of the villages, not those of the taluk as a whole, had been transferred, whilst 9th witness for defendant said only that, when plaintiffs called on 1st defendant to produce the accounts, they could not be found. Plaintiffs' failure moreover to produce the accounts, before 1908 is of little moment, when 1st defendant has not produced those for the immediately succeeding period and there is other clear evidence on plaintiffs' side.

14. Some basis can, I agree with my Lord, be found for a conclusion in the evidence as to the peishcush and income of the property, even if that of 8th witness for plaintiffs is excluded from consideration, since it is clear that he was confused during his examination and it may be doubtful what he really intended to say. But we are on firmer ground with the prices actually realized by the property in public auction which I proceed to consider. With all due deference I do not think inference from the price paid in March 1908 for 27 other villages of this Taluk is safe; for it cannot be assumed in the absence of any evidence that all the villages in it are of even approximately uniform size or value.

15. These facts, as well as the evidence referred to by my Lord, in my opinion justify the conclusion that the six lakhs paid under Exhibits U and X were far less than the real value, the deficiency being greater than can be attributed to the necessity of 2nd defendant, since there is no reason for doubting that purchasers would have come forward for the whole or part of the property as readily in 1908 as they did in 1914. On the view of the law, which I am at present assuming, such disparity as I find proved between the amount paid for the property and its true value will be the commonest and the most easily verifiable ground of distinction between sales and mortgages of the kind now under consideration. But further surrounding circumstances may also be material, as for instance here the probable reluctance of 2nd defendant to part finally with his ancestral estate. If reference to those circumstances were admissible, they would in my opinion justify the inference that he and 1st defendant intended to create and that Exhibits U and X, notwithstanding their actual terms, should be read as constituting a mortgage, not merely a sale with a right to repurchase.

16. I agree however that the authorities, cited by my Lord and which I need not refer to again, forbid us to refer to such surrounding circumstances and require us to deal with plaintiffs' contention with reference to sections 92 and 93 of the Indian Evidence Act on consideration only of the terms of the documents and the indications of the character of the transaction, which they may afford and the question being between a real and ostensible sale, such as is contemplated in section 58(c) of the Transfer of Property Act, it is inevitable that the majority of those terms will be consistent with the former alternative. That is the case in Exhibits U and X. For their main provisions undoubtedly use the language and embody the stipulations appropriate to a sale, and it is then unfortunate that the draftsman was apparently unequal to the departure from the form he was using, which required for the expression of the special and more significant conditions of the contracts and lapsed into obscurity in the terms on which the parties and particularly plaintiffs rely as indicative of the common intention. Thus the provision regarding minerals in Exhibit X, on which the 1st defendant relies, is amalgamated with a reference to the distinct provision for 2nd defendant's right to re-purchase and specifies the rent for any land required by him for the exercise of the right to work the minerals (which he reserved) as that payable for land without mention of the mariner in which it was to be fixed. In these circumstances, apart from the evidence that the mineral rights were not regarded as of immediate importance, it is impossible to base argument on this provision. Similarly to turn to the portions relied on by plaintiffs, as regards the clause in Exhibit U relating to the apportionment, between 1st and 5th defendants, of compensation for land acquired by Government “after the date of the agreement and before the sale deed to be executed.” That would appear to refer to the sale-deed by way of re-conveyance to 2nd defendant; and some reliance has been placed on the fact that the allowance for such lands is to be calculated as a proportionate share of the amount of the award, treated (in the absence of other express provision by Government) as twenty years' purchase of the annual rent. That the annual rental is referred to is, it is argued, on the one hand, inconsistent with a sale; that twenty years' purchase referred to is, it is argued on the other, inconsistent with a mortgage, since 1st defendant's tenure as a mortgagee might last until the latest date available for redemption, over sixty years later. But again it is not possible to found argument on a clause so ill-drawn, since, apart from any definition of the rights of the parties in case Government did expressly provide otherwise, there is the incoherence involved. In the statements that, if need be, 2nd defendant is to be given credit for the amount due to him under this head towards the Rs. 6,00,000 to be paid by him, the result being that 1st defendant is not only to have the interest resulting from the use of the amount of the award, so long as it remains in his hands, which would correspond with the income from the land acquired, but also to retain a share in its capital value after he has surrendered the land itself. It is impossible to assume that either the draftsman or the parties to these agreements ever gave any real consideration to a provision so inconsequent and obscure and in such circumstances it is impossible to regard as decisive or even material on the question of the value of the property the recital in Exhibit X that the transaction was intended to prevent a public sale at an inadequate price. For it is not merely as consistent with an intention to make a real sale as to emphasise the appearance of an ostensible sale, but there is no sufficient reason for supposing that it was regarded at the time of execution as significant at all. One term in Exhibit U has been specially relied on by plaintiffs and deserves some attention, the provision that “the vendor agrees to sell and the purchaser to purchase” for six lakhs on one or other of the three specified dates, since it is argued that the reciprocal obligation thus created is characteristic of a mortgage. The argument has been supported particularly by reference to Coveney v. Persse(13), Goodmen v. Grierson(14). But in the former there were other clear indications in the language of the documents that they were mortgages, not sales; and in the latter, the leading case illustrating the principle, although Lord Manners said that the criterion of the character of the transaction was whether the remedies were mutual and reciprocal, he went on, “Has the defendant all the remedies a mortgagee is entitled to?” and attached weight to the fact that there was a prior debt, in satisfaction of which, and not as security for which the property had been taken. The test recognised was not whether there were opposite remedies, such as those in Exhibit U, which are as easily or more easily intelligible as enabling either party to repudiate the bargain, if he repents it, but that there are the complementary remedies appropriate as between a mortgagee and mortgagor and it is the strongest part of 1st defendant's case on this point that there was not and the documents contain no reference to any prior debt or any suggestion that the property was a security. Their language, in fact, whatever its imperfections, is throughout and in every detail appropriate to a sale; and as under the authorities we are bound by, that language must be decisive, I agree that there was a conditional sale and not a mortgage.

17. Turning to the question whether there, was a tender and adopting the statement of facts in the judgment just delivered, I again deal only with some aspects of the matter. We have on the one hand the evidence of 7th and 15th plaintiffs' witnesses, the former being 2nd plaintiff, a retired officer who reached the highest grade of the Provincial Judicial Service, and the latter at the time a member of the Imperial Legislative Council and at present a Minister under the local Government. Both are witnesses of exceptional credit and, all allowance made for the probability that the tender would be refused, were unlikely either to engage in or run the risk of detection in the discreditable imposture alleged; and there are other witnesses, no doubt of inferior credit, but whose number and position render improbable their deliberate inclusion in the conspiracy, which was involved. On the other hand the previous conduct of 1st defendant to which my Lord has referred, no doubt might have suggested the possibility that such an imposture might succeed and Mr. Norton in his exhaustive argument for 1st defendant has indicated points, at which plaintiffs' evidence is defective to an extent, he contends, consistent only with their story being false. I refer in order to each of those points shortly. In the circumstances I am not prepared to dissent from the lower Court's conclusion and to hold that no tender of the requisite amount has been established. Of the remaining objections to the lower Court's judgment two only, I agree with my Lord, call for notice and I cannot usefully add anything to his reasons for holding that plaintiffs as purchasers at the Court sale are entitled to bring this suit. The other objection relates to an earlier stage in the proceedings and is that the right of 2nd defendant to tender on 31st August 1914 had been determined by the Court sale of 25th August 1914 and had passed to the purchaser thereat, whether, as the lower Court has found he represented 1st defendant or not. This involves that the title to the property put up for sale passed on the date, on which the sale was held, although, as happened in this case, that sale was not confirmed; and this contention is negatived directly by the terms of section 65 of the CPC, as well as indirectly by other provisions relating to sale procedure. For section 65 provides that the property sold shall vest in the purchaser from the date of the sale, only “where the sale has become absolute” Order 21, rule 92, provides that the sale shall become absolute only on the Court making an order confirming it; and the absence of any provision divesting the purchaser of the ownership of the property or requiring its re-attachment in case the sale is not confirmed indicate that, unless it is confirmed, no change in its ownership, from whatever date, takes place. Against this, reliance has been placed on Bhawani Kuar v. Mathura Prosad and the conclusion in that judgment that “the purchaser's right were understated or misstated” as having accrued only on the date of the certificate of confirmation. But, although this conclusion is enunciated without qualification, it is still a question whether it involves the principle alleged. For it was reached after one reference to the contents of the certificate and followed by another, the fact that the actual date of the sale was given in the certificate being regarded as material; and the decision therefore cannot be regarded as authoritative in this or other cases, in which no such references are possible, because no confirmation has taken place and no certificate has been issued. Although, moreover, decisions, such as Dagdu v. Pancham Sing Gongaram(15) and Adhur Chunder v. Aghore Nath(16) were referred to in argument, the judgment contained no repudiation of the principle, which two High Courts, including that from which the appeal came, had stated clearly and had followed for many years, that the purchaser's title until confirmation and issue of certificate was merely inchoate or, in the words adopted in the first of those cases from a yet earlier decision, was contingent on subsequent confirmation. There is in these circumstances no reason for regarding Bhavani Kuar v. Mathura Prosad Singh as authority for any more general principle than the facts of that case including the existence of a certificate, required, as relevent in the present case, in which no confirmation or grant of certificate has taken place. I therefore agree that 2nd defendant was on 31-8-1914 still entitled to tender.

18. As regards the claims to profits and interest I concur in the judgment first delivered.

19. Appeal dismissed.