Civil Appeal No 98 of 1953
Appeal by Special Leave from the Judgment and Decree dated the 27th day of January 1949 of the High Court of Judicature at Patna in Appeal from Appellate Decree No 690 of 1947 against the Decree dated the 13th January 1947 of the Court of the District Judge Bbagalpur in Title Appeal No 161 of 1946 arising out of the Judgment and Decree dated the 25th July 1946 of the Court of the 1st Additional Subordinate Judge Bhagalpur in Title Suit No 80 of 1945
NC Chatterjee A N Sinha and section P Verma with him for the appellant
Murtaza Fazl Ali and Rajinder Narain for respondent No I 1954
April 14
The Judgment of the Court was delivered by BOSE J
This is a plaintiff s appeal in a suit for re demption of what the plaintiff calls a mortgage dated 15th April 1930
The only question for determination is whether this is a mortgage by conditional sale or a sale out and out with a condition of repurchase
If the former the plaintiff succeeds
If the latter he is out of Court
The property covered by the disputed deed belonged to one Bijai Tanti who died leaving a widow Mst
Phaguni and two sons Siban Tanti and Chander Tanti
On 25th May 1922 Siban Tanti alone executed a 176 simple mortgage in favour of the second defendant for Rs 25
Then on 6th May 1927 Siban Tanti Chander Tanti and Mst
Phaguni mortgaged the same property to the first defendant for Rs 250
This was also a simple mortgage
After this came the transaction in suit dated 15th April 1930
The same three persons executed the disputed deed
This was in favour of the first defendant
The consideration mentioned in the deed is Rs 634 10 0 due on the second mortgage and Rs 65 6 0 taken in cash to enable the executants to meet the expenses of certain commutation proceedings under section 40 of the Bihar Tenancy Act in respect of this very land
The second defendant sued on his mortgage of 1922 but did not join the subsequent mortgagee the first defendant
He obtained a decree against the mortgagors alone and executed it in 1940
He himself purchased the property in dispute and took possession on 20th March 1943
Shortly after on 19th August 1943 he sold this land to the plaintiff for Rs 400
The plaintiff s title is derived from the second defendant who stepped into the shoes of the mortgagors because of his suit against the mortgagors in 1940
The plaintiff s case is that the transaction of 15th April 1930 is a mortgage and as the subsequent mortgagee was not joined as a party to the earlier suit the plaintiff is entitled to redeem
The first defendant s case is that the transaction of 15th April 1930 was not a mortgage but an out and out sale with a covenant for repurchase which became infructuous because no attempt was made to act on the covenant within the time specified
The learned trial Judge and the lower appellate Court both held that the document was a mortgage and so decreed the plaintiff s claim
The High Court on second appeal reversed these findings and held it was a sale
Consequently the learned Judges dismissed the plaintiff s suit
The plaintiff appeals here
The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation
There are numerous 177 decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them
We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another
Each must be decided on its own facts
But certain broad principles remain
The first is that the intention of the parties is the determining factor see Balkishen Das V Legge 1
But there is nothing special about that in this class of cases and here as in every other case where a document has to be construed the intention must be gathered in the first place from the document itself
If the words are express and clear
 effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out
the real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used
If however there is ambiguity in the language employed then it is permissible to look to the surrounding circumstances to determine what was intended
As Lord Cranworth said in A Aderson vs White 2  The rule of law on this subject is one dictated by commonsense that prima facie an absolute conveyance containing nothing to show that the relation of debtor and creditor is to exist between the parties does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase  
In every such case the question is what upon a fair construction is the meaning of the instruments Their Lord ships of the Privy Council applied this rule to India in Bhagwan Sahai vs Bhagwan Din 3 and in Jhanda Singh vs Wahid ud din 4
The converse also holds good and if on the face of it an instrument clearly purports to be a mortgage it cannot be turned into a sale by reference to a host of 1 27 IA 58
3 17 IA 98 at 102
2  at 928
4 43 IA 284 at 293
23 178 extraneous and irrelevant considerations
Difficulty only arises in the border line cases where there is ambiguity
Unfortunately they form the bulk of this kind of transaction
Because of the welter of confusion caused by a multitude of conflicting decisions the Legislature stepped in and amended section 58c of the Transfer of Property Act
Unfortunately that brought in its train a further conflict of authority
But this much is now clear
If the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not
But the converse does not hold good that is to say the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale
If the condition of repurchase is embodied in the document that effects or purports to effect the sale then it is a matter for construction which was meant
The Legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages therefore it is reasonable to suppose that persons who after the amendment choose not to use two documents do not intend the transaction to be a sale unless they displace that presumption by clear and express words and if the conditions of section 58c are fulfilled then we are of opinion that the deed should be construed as a mortgage
The document with which we are concerned Exhibit A is in the following terms and our first duty is to construe the language used and see whether it is ambiguous
We have paragraphed the document for convenience of construction and have omitted unnecessary words
1 Rs 634 principal with interest under a registered rehan bond  simple mortgage  dated the 6th May 1927 is justly due  by us the executants
Now we further require Rs 65 6 0 more to meet costs of the suit under section 40 Bihar Tenancy Act
2I and at present there is no other way in view rather it seems impossible and difficult to arrange for 179 the money without selling the property let out in rehan  simple mortgage  under the above mentioned bond 3  Therefore we the executants declare that we sold and vended the propertiesdetailed below on condition given below for a fair and just price of Rs 700  4 That we set off Rs 634 10 0 against the consideration money  torn  payable under the aforesaid bond in favour of the said vendee and received Rs 65 6 0 in cash from the said vendee
In this way the entire consideration money was realised from the said vendee 5  and we put the said vendee in possession and occupation of the vended property detailed below and made him an absolute proprietor in our places 6  If we the executants shall repay the consideration money to the said vendee within two years  the property vended under this deed of conditional sale attached shall come in exclusive possession and occupation of us the executants 7  If we do not pay the same the said vendee shall remain in possession and occupation thereof generation after generation and he shall appropriate the produce thereof 8  We the executants neither have nor shall have any objection whatsoever in respect of the vended property and the consideration money
Perchance if we do so it shall be deemed null and void in Court and we declare also that the vended property is flawless in every way and that if in future any kind of defect whatsoever be found on account of which the said vendee be dispossessed of a portion or the entire property vended under this deed of conditional sale and will have to pay the loss or damage in that event we the executants a shall be liable to be prosecuted under the criminal procedure and b we shall pay the entire consideration money together with loss and damage and interest at the rate of Rs 2 per mensem per hundred rupees from the date 180 of the execution of this deed till the date of realisation from our person and other properties cand we shall not claim the produce of the vended property for the period of vendee s possession against the said vendee or his heirs and representatives
 10  Therefore we the executants  have executed this deed of conditional sale so that it may be of use in future
 In our opinion this language is not free from difficulty and is ambiguous
The deed purports to be a sale and has the outward form of one but at the same time it calls itself aconditional sale
 It hashowever no clause for retransfer and instead says clause 6 that if the executants pay the money within two yeas the property  shall come in exclusive possession and occupation of us the executants
 That is clear about the possession but is silent about the title
In the context we can only take these words to mean that if there is payment within the specified time then the title will continue to reside in the executants for what else can a right of exclusive possession import in these circumstances  It is relevant to note in passing that this silence about title would be proper in a mortgage for there the owner s title remains in him all the while and so a reconveyance is unnecessary
But if there is an out and out sale the title could not revert to the original owner without a proper reconveyance
Clause 7 appears to underline this because it couples the transferee s right to remain in possession and occupation and to appropriate the produce  generation after generation  with the non payment of the money within the time set out
It is true the words of conveyance in the earlier part Of the deed clause 5 would pass an absolute title if they stood alone but the document must be read as a whole and it must also be remembered that it was executed by ignorant justice and scribed by a man whose knowledge of conveyancing was on the face of it rudimentary and defective
The deed lacks the precision of a practised hand and that probably accounts
for its ambiguities that there is ambiguity is patent from what we have said
181 The next step is to see whether the document is covered by section 58c of the Transfer of Property Act for if it is not then it cannot be a mortgage by conditional sale
The first point there is to see whether there is an  ostensible sale
 That means a transaction which takes the outward form of a sale for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached
The executable clearly purported to sell the property in clause 5 because they say so therefore if the transaction is not in substance a mortgage it is unquestionably a sale an actual sale and not merely an ostensible one
But if it is a mortgage then the condition about an  ostensible sale  is fulfilled
We next turn to the conditions
The ones relevant to the present purpose are contained in clauses 6 and 7
Both are ambiguous but we have already said that on a fair construction clause 6 means that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in them will continue to reside there
The necessary consequence of that is that the ostensible sale becomes void
Similarly clause 7 though clumsily worded can only mean that if the money is not paid then the sale shall become absolute
Those are not the actual words used but in our opinion that is a fair construction of their meaning when the document is read as a whole
If that is what they mean as we hold they do then the matter falls squarely within the ambit of section 58c
Now as we have already said once a transaction is embodied in One document and not two and once its terms are covered by section 58c then it must be taken to be a mortgage by conditional sale unless there are express words to indicate the contrary or in a case of ambiguity the attendant circumstances necessarily lead to the opposite conclusion
There are no express words here which say that this is not a mortgage but there is ambiguity so we must probe further
The respondents who claim that this 182 is a sale and not a mortgage rely on the following circumstances
They are all culled from the deed itself First they point to clause 5 which says that the transferee has been made the absolute proprietor in place of the executants
Those they say are the operative words and point to an out and out transfer of title
Next they point to clause 2 where the executants say that they have no other Means of raising the money they want except by selling the property
The respondents argue that the word  sale  could not have been used inadvertently because it is contrasted with a mortgage in the very same sentence
The word  mortgage is also used in clause 1 therefore it is clear that when a mortgage is intended the word  mortgage is used
It must follow that when the word  sale is used a sale must have been meant
The only weakness in this argument is that when a mortgage is by conditional sale this is the form it has to take because section 58c postulates that there must be an  ostensible sale  and if a sale is ostensible it must necessarily contain all the outward indicate of a real sale
The question we are considering can only arise when the word  sale  is used and of course a sale imports a transfer of title
The use of the words It absolute proprietor in our places  carries the matter no further because the essence of every sale is to make the vendee the absolute proprietor of what is sold
The question here is not whether the words purport to make the transferee an absolute proprietor for of course they must under section 58c but whether that is done  ostensibly  and whether conditions of a certain kind are attached
The learned counsel for the respondents next relied on the fact that clause 3 says that the price paid was a fair and just  one and that the Courts below have found that the consideration was not inadequate
 He also relies on the fact that no interest was charged that the transferee was placed in possession of the property and was Dot to account for the usufruct also on the fact that a short term namely two years was fixed for repayment
183 But on the other side there is the very significant fact that Rs 65 6 0 was borrowed to enable the executants to carry on commutation proceedings under section 40 of the Bihar Tenancy Act that is for substitution of a cash rent instead of one in kind in respect of this very property clause 1
It was admitted before us and the lower Courts so find that the commutation proceedings related to this very land
The learned High Court Judges discount this by saying that there is no evidence to show that the proceedings which were started in 1929 continued after the deed
But that is a mistake apparently due to the fact that the copy of the entry in the Rent Schedule produced before the learned Judges inadvertently omitted the date
Mr N C Chatterjee produced a certified copy of the revenue record here and that gives the missing date
From that it is clear that the proceedings continued till 18th February 1931 that is to say for some ten months after the deed
This we think is crucial
Persons who are selling their property would hardly take the trouble to borrow money in order to continue revenue proceedings which could no longer benefit them and could only enure for the good of their transferees
There is another point in favour of the appellant and that is that the surrounding circumstances show that there was a relationship of debtor and creditor between the parties existing at the date of the suit transaction
The bulk of the consideration went in satisfaction of the mortgage of 6th May 1927
In those circumstances seeing that the deed takes the form of a mortgage by conditional sale under section 58c of the Transfer of Property Act it is legitimate to infer in the absence of clear indications to the contrary that the relationship of debtor and creditor was intended to continue
The point made on behalf of the respondents about the adequacy of the consideration and the absence of interest can be explained
The transferee was to take possession of the property and would thus get the produce and it is evident to us from the tenor of the document that he was not to be accountable for it
184 We say this because the indemnity clause clause 9 says in sub clause b that in the event of the transferee s possession being disturbed the executants would among other things pay him in addition to damages the entire consideration together with interest at 2 per cent
per month from the date of the deed and would not require the transferee to account for the usufruct
It is true this can also be read the other way but considering these very drastic provisions as also the threat of a criminal prosecution in sub clause a we think the transferee was out to exact more than his pound of flesh from the unfortunate rustics with whom he was dealing and that he would not have agreed to account for the profits indeed that is his own case for he says that this was a sale out and out
In these circumstances there would be no need to keep a reasonable margin between the debt and the value of the property as is ordinarily done in the case of a mortgage
Taking everything into consideration we are of opinion that the deed is a mortgage by conditional sale under section 58c of the Transfer of Property Act
The appeal is allowed
The decree of the High Court is set aside and that of the lower appellate Court is restored except as to costs
The original owners of the property have lost it
The value of the property was put at over Rs 10000 in the special leave petition
The second defendant oust
 the original owners by getting a mortgage decree for Rs 130 in his favour on a mortgage of only Rs 25 and purchasing it at the auction himself
He is no longer in the picture as he sold it to the plaintiff for Rs 400
The plaintiff has accordingly obtained property which on his own showing is worth more than Rs 10000 for only Rs 400
The first defendant spent only Rs 250 plus Rs 65 6 0 on it Rs 315 6 0 and the consideration of the disputed deed is only Rs 700
it is evident that both sides are speculators
In the circumstances we direct that each party bear its own costs


Summary:
There is no hard and fast rule for determining whether a given transaction is a mortgage by conditional sale or sale outright with a condition for repurchase
Each case must be decided on its own facts
The numerous decisions of the High Courts on the point are of no help because two documents are seldom expressed in identical terms
The intention of the parties is the determining factor but the intention must be gathered from the document itself which has to be construed to find out the legal effect of the words used by the parties
If the words are express and clear effect must be given to them and any extraneous enquiry into what was thought or in
tended is ruled out
If however there is ambiguity in the language employed then it is permissible to look to the surrounding circumstances to determine what was intended
175 In view of the provisions of the amended section 58c of the Transfer of Property Act if the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not
But the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale
If the condition of repurchase is embodied in the document that effects or purports to affect the sale then it is a matter for construction which was meant
Balkishen Das vs Legge 27 IA 58 Alderson vs White  at 928 Bhagwan Sahai vs Bhagwan Din 17 IA 98 at 102 and Thanda Singh vs Wahid ud din 43 IA 284 at 293 referred to