JUDGMENT Maclean, C.J. - The question we have to decide is, what is the true effect of the two documents executed by the parties in the year 1894, to which I will more narrowly advert in a moment. The case of the Plaintiffs is that those two documents constituted a mortgage, and not a sale of the property, the subject of the suit. The contention of the Defendants is that the documents effected an out-and-out sale to themselves with a right of repurchase to be exercised within 7 years by Defendants Nos. 10 and 11, whose interest the present Plaintiffs have purchased. Let us look at the documents. There can by very little doubt upon the face of the first document that it was an out-and-out sale. The language of the document is clear, that Defendants Nos. 10 and 11 did sell the property in question, and they speak of this document as " a clear deed of sale divesting all rights for a consideration of Rs. 375," which they say is " its proper value at the present time." The purchasers were to become entitled to all the rights of the vendors and to possess and enjoy the property with their "heirs, sons and grandsons, etc." This clearly is an out-and-out sale. 2. Then we come to the contemporaneous document upon which the Plaintiffs" case really hinges. That document recites the previous sale, and then we find this language, "I also execute this Ekrarnama to the effect that on your giving me back the sum of Rs. 375, set out in the deed of sale together with costs within 7 years, commencing from 1301, B. S., and ending in 1307, B. S., I shall return the holding set out in the deed of sale. If I do not give back, then you, by depositing in proper Court the aforesaid consideration money of Rs. 375, will take over possession of the holding, to which I or my heirs or representatives shall have no objection." Now what does the language of that document mean. Upon the face of it, and reading the language used in its ordinary acceptation, I should say it only gave the then vendors a right of repurchase within seven years. Can we properly say that this document coupled with the contemporary deed of sale constitutes a mortgage of the property? Upon the face of it, and reading the language used in its ordinary acceptation, I should say it only gave the then vendors a right of repurchase within seven years. Can we properly say that this document coupled with the contemporary deed of sale constitutes a mortgage of the property? I think not: I think the intention of the parties, which we must gather from the language they have used, is strongly against this view. If authority were needed to support this view, it is difficult to differentiate the present case from the case of Bhagwan Sahai v. Bhagwan Din I. L. R. 12 All. 387 (1890), decided by the Judicial Committee of the Privy Council. In one particular that case is somewhat weaker than the present, inasmuch as, in the second document, in that case, there was a reference to the whole of " the principal " sum, a term suggestive rather of a mortgage than of an out-and-out sale. But it is said that that case has been, if not overruled, at any rate shaken as an authority by a more recent decision of the same judicial body in the case of Balkishen Das v. W. F. Legge 4 C. W. N. 153: s. c. I. L. R. 22 All. 149 (1899). But when we look at the language of the second document in that case, it is not difficult to appreciate the reasons which induced the Juidcial Committee to arrive at the conclusion that the intention of the parties was a mortgage and not an out-and-out sale with a right of repurchase. The elements of a certain date fixed for the repayment of the money, the addition to the original purchase money of a sum of Rs. 15,000 presumably for interest, the consolidation of the debt on the factories account with the principal sum mentioned in the deed, and the giving the bankers a security on the taluka for the debt of the factories, the provision that the sahib (the vendor) should not be competent to effect a sale until the payment of the estimate money relating to the factories of the Bashratpur concern,-a provision which would have been quite out of place if the transaction was intended to be an out-and-out sale in the first instance,-afford strong indication that the parties intended the transaction to be a mortgage and not a sale. Such indications are lacking in the present case: on the contrary, they are in the opposite direction. The money was paid by the grantee, and it was the proper value of the property at the time. The purchaser was let into immediate possession; he received the rents: there is no provision as to the payment of any interest, and the purchaser was to pay the expenses of preparing the deeds. These features indicate that the intention of the parties was that the transaction should be an out-and-out sale with the right of repurchase within seven years. It is not necessary to decide it finally, but I do not think there was any " certain date" of payment within the meaning of sub-sec. (c) of sec. 58 of the Transfer of Property Act, and that is an essential element of a mortgage by conditional sale. Again the action is not one to redeem. On the contrary the Plaintiffs say that they have deposited the purchase-money in Court, and consequently that they are now entitled to have the property reconveyed. But the finding is that they have not made a proper deposit: so this aspect of the case fails. The appeal consequently fails and must be dismissed with costs. Holmwood, J. I agree.