Straight, J., Pearson, J., Spankie, J. and Oldfield, J.:— concurring. The single question submitted to us by this reference is whether the condition in agreement of the 26th August 1862, by which redemption of the property sold under the deed of the same date is hampered, can be enforced, so as to defeat bonâ fide purchasers for value of a portion of the rights and interests of the mortgagors. The answer to this depends upon whether the transaction between the parties was in reality a sale, or amounted simply to contract of mortgage, under which the mortgagors would necessarily reserve their right to redeem. In our opinion, in face of the agreement as to redemption, it is impossible to hold that there was any sale. The complexity given to the bargain between the parties by the execution of two instruments one qualifying the other, cannot alter its true character, the precise legal description of which must be determined by reading both off them as a single and indivisible contract. The relation created thereby between the parties was essentially that of mortgagors and mortgagee, and until the mortgagee took the prescribed steps to foreclose and establish his absolute proprietorship, their relative, positions continued the same, and down to the last day of the twelve months' period of notice of foreclosure the rights of the mortgagors or those acquiring their interests remained in existence and could at any moment be exercised. The substance of the contract was the pledge of the estate for the debt, and the time of its repayment was not of its essence, and Courts of Equity invariably relieve against, the forfeiture of the estate by sanctioning redemption at any time upon paying the mortgage-debt with interest. The mortgagors in the present case, therefore, having the ordinary right to redeem, the sole point for further consideration is, was the condition of the agreement of the 26th August, 1862, inconsistent with their position, and of such a nature as to place them at a disadvantage? We entirely concur in the observations of Mr. Justice Pearson upon this point, and we regard the condition as most inequitable and incapable of enforcement, either against the original mortgagors or their representatives in title.

Stuart, C.J:— I am not disposed, on reconsideration of this case, to express a dissent from the opinion recorded by my colleagues, although I retain the doubt I suggested in my referring order respecting the second question I there considered, viz., whether stipulation against alienation by any of the vendors was good, so as to invalidate a sale not made according to the agreement, or in other words, as my colleagues put it, “whether the transaction between the parties was in reality a sale or amounted simply to a contract of mortgage.” My colleagues are of opinion that the transaction was a mortgage, and I am free to acknowledge that the opinion I myself expressed in the referring order, “that the agreement was in the same position as if it had been incorporated with the original sale-deed, the two documents making really one contract,” goes to support that view of the case; and there are allusions in the so-called agreement which I admit may fairly be said to have the same effect. Thus I observe it is stipulated that, “if the sale-consideration is not paid at the time fixed, and I the executant have to foreclose and to bring a regular suit, I shall realize the costs from the persons and other properties of the vendors.” And there can be no doubt that this stipulation supports the view that the transaction was a mortgage and not a sale out and out. A very careful consideration of a record, however, causes me considerable hesitation in holding that such was the real understanding the parties towards each other. In the first place there was really no agreement, that is, no mutual agreement between the parties at all. What was so called was entirely a one sided document expressed in the name of Ram Saran Lal the defendant and vendee alone, and this document appears to me to amount to nothing but a promise of a favour or privilege in the nature of a nudam pactum, which did not change the transaction into a mortgage, or in any way invalidate it as a sale, and if that was so there could have been no reservation on the part of the defendants of their right to redeem; and it appears to me that the agreement itself shows this. That document, as I have said, runs exclusively in the name of Ram Saran Lal the defendant and vendee, the plaintiffs being no parties to it; and on the recital “that whereas I have under a deed of obsolute sale dated this day purchased a nine-anna six-ganda share, the property of &c., for Rs. 1,800,” it proceeds to state, “I, therefore, while in a sound state of health and reason, without coercion and reluctance, of my own free will and accord, agree and record that the aforesaid vendors may within a term of ten years, that is, on Jaith Sudi 15th, 1279 fasli, before sunset, pay the entire sale-consideration, the deed of absolute sale being (in that case) considered as standing cancelled and the same unilateral character of the document appears to me to qualify all the other portions of it, even including the clause I have referred to as appearing to favour the idea that a sale and not a mortgage was intended. If so, the transaction might, I think, be fairly considered to fall within the principle laid down in Sugden's Vendors and Purchasers (14th edition, 1862, p. 199):—“If a power to re-purchase be given upon a condition * * the right (that is, the right to re-purchase) cannot be enforced unless the condition has been complied with, for it is a privilege conferred.” To the same effect is the law laid down in a case decided by the Privy Council in 1860, that of Shaw v. Jefferey . This was a case relating to several deeds, and at p. 461 of the judgment it is stated:—“Upon the plain language of the instruments, and on consideration of the circumstances existing at the time of their execution, their Lordships think it clear that this was nothing like a mortgage, but was an absolute sale, to which was attached a conditional right of re-purchase, to be exercised, if at all, on the happening of a certain event, the period for the happening of which was fully and equally within the knowledge of both parties.”

As to the right to redeem which my colleagues seem to consider has been reserved, there was really no such reservation, certainly no express reservation, nor even one by implication, so far as relates to the mind and intention of both the parties, but was rather a favour or privilege voluntarily granted or conferred by the vendee and therefore not forming part of the contract in its mutuality. These are my doubts, but I do not entertain them so strongly as to feel induced to record a dissent from the opinion of may colleagues.

On the case coming again before the Division Bench (Staurt, C.J and Pearson, J.,) for disposal, the following judgments were delivered:—

Stuart, C.J:— I consider it unnecessary to offer any further observations in this case, but content myself with stating that the decision of the Full Bench, viewed in relation to the pleas on the record, is that the reasons assigned in the memorandum of appeal must be disallowed and the appeal dismissed with costs.

Pearson, J.:— The particulars of the case and the reasons of the decision of the lower Courts are clearly set forth in their judgments and need not be recapitulated. We have to deal with the grounds of appeal. If the argument executed on the 26th August, 1862, by the defendant, whereby the sale just before made to him was converted into a redeemable mortgage was of the nature of a personal contract enforceable only by the original vendors and not by their representatives, it follows that the plaintiffs' vendor, who is the grandson of one of the original vendors or mortgagors, would fee incompetent to redeem his share from mortgage. The proposition that, in the event of the death of any of the original mortgagors before the foreclosure of the mortgage, the agreement relating to the redemption of his share determined, is not supported fey any express provisions to that effect, and is not warranted by the me fact that there are not any express terms extending the right of redemption to the heirs of the original mortgagors. If the opinion of the Court of first instance be correct that the object in view was the preservation of the property in the family of the vendors, that object would have been defeated by the construction which should deprive their heirs of the right of redemption. I cannot perceive any sufficient ground for concluding that the plaintiffs' vendor had not the right of redemption. He has transferred it by sale to the plaintiffs and the validity of the transfer is the next question. In the case which came before the Full Bench—Dookchore Rai v. Hidayut-ullah —the mortgagor had contracted not to alienate the mortgaged property by sale or mortgage, but it was held, and the ruling is binding upon us, that such a stipulation could not operate to avoid a bonâ fide conveyance by the mortgagor of his equity of redemption to a third person for the purpose of paying off the original mortgage-debt. In the present case the mortgagors did not so contract, after the conversion of the sale into a redeemable mortgage, but the mortgagee on his part was pleased to declare that he would only receive back from them the sale-consideration which had become the mortgage debt if paid out of their own pockets, and that, if it were raised by transfer of the property, he would not receive the money from, them, nor cancel the deed of sale which had been executed in his own favour. Even were a transfer prohibited, if he could not, as the Full Bench ruling above mentioned seems to imply, treat as a nullity the sale which has been made to the plaintiffs, the right of the latter to redeem the property could not be reasonably denied and resisted. The defendant, if he had been injured by the act of the plaintiffs' vendor in making the transfer, might have his remedy; but the transfer would not otherwise affect his right as mortgagee to the recovery of his mortgage-debt than by providing for the repayment of a part thereof, and would be maintainable. But a transfer is not positively, but only implicitly, prohibited by the terms used in the instrument executed by the mortgagee converting the sale into a redeemable mortgage. What he says is that he will not recognize the transferee as having acquired by the purchase the equity of redemption or cancel his own sale-deed. Such a declaration appears to be beyond his legal competence and to be of no effect.

For the above reasons, and those recorded by me on the 11th August last, and in reference to the opinion expressed by the Full Bench on the 30th November last, on the question referred to it by the Chief Justice in this case, I would disallow the first three pleas in appeal. I would also disallow the two remaining pleas, for the money has been deposited, and nothing has been found to be due on account of embankments and wells. I would therefore dismiss the appeal with costs.

Appeal dismissed.