JUDGMENT [ENTITY], J.
1. This second appeal by the defendant is preferred against the judgment of reversal passed by the District Judge, Purnea in [CASE NUMBER] dated 6th August, 1977 allowing the appeal and thereby setting aside the judgment and decree of the trial Court which decreed the suit for redemption.
2. The substantial question of law which was formulated at the time of admission was as to whether Exhibit A is a deed of mortgage by conditional sale or a deed of sale with condition of repurchase and whether the lower appellate Court was right in holding that the document was a mortgage by conditional sale on the ground that the consideration of Rs. 400/- was not the proper consideration for sale specifically in the absence of evidence to that effect.
2. This second appeal was listed for hearing before a Single Bench of this Court. The learned single Judge held that it involves interpretation of the document in question and considered it proper to refer the case to a Division Bench. That is how this case has been placed before us.
3. The plaintiff brought this suit for redemption of the document (Ext. A) treating it to be a mortgage bond executed by him in favour of the defendant on 9-8-1972 in respect of five decimals of land appertaining to plot No. 788, Khata No. 36 of village Rahmatpur, P. S. Terhagachh in the district of Purnea. The allegation of the plaintiff who is the respondent before this Court was that he executed a mortgage by conditional sale in favour of the defendant-appellant for a consideration of Rs. 400/- and delivered possession to the latter. According to the plaintiff, he tendered the mortgage money to the defendant but the latter did not accept it and, therefore, he instituted the present suit for redemption.
4. The defence, in short, was that the document executed by the plaintiff was an outright sale and not a mortgage and that a right of repurchase was reserved by the plaintiff in the said document. The further defence was that the amount was to be repaid by the plaintiff to the defendant latest by the end of the year 1974, and that not having been done, the defendant has acquired absolute right in the document.
5. The trial Court held that the document (Exhibit A) was a sale deed and not a mortgage by conditional sale, and accordingly it dismissed the suit. The lower appellate Court however, as already stated above, reversed the said judgment and has held that the document was a mortgage by conditional sale and, therefore, passed a preliminary decree in the suit for redemption.
6. At the outset I may state here that tho plaintiff-respondent remained unrepresented in this appeal, and in spite of service of notice, he did not choose to appear before this Court. As such we had the advantage of hearing the learned counsel for the appellant only.
Mr. [ENTITY] learned counsel appearing on behalf of the appellant contended that the document in question (Ext. A) is out and out a sale and not a mortgage bond and he strengthened his argument relying upon the clause in the mortgage deed itself where right has been reserved by the executant for repurchase of the property after paying the consideration amount by the end of 1974. According to the learned counsel, the said right of repurchase not having been exercised by paying the amount by the end of 1974, the defendant has acquired absolute title on the expiry of the said period and, therefore, the deed cannot be construed a deed of mortgage.
7. It appears from the order sheet of this Court that on a request made by learned counsel for the appellant, Exhibit A which is in Hindi was officially translated into English and the official translation has been included in the paper book. Learned counsel for the appellant accepts the said translation and has not challenged any portion of it before us.
8. It cannot be disputed that the law regarding construction of a document is well settled, namely, that the intention has to be gathered in the first place, from the language of the document and if the words are express and clear, then 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 parlies 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. This principle has been laid down in the case of [ENTITY] v. Ebadat Ali ([PRECEDENT]. Paragraph 14 of this decision reads thus:
"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] 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."
It will be also relevant to quote here a portion of para 8 of the judgment of the Supreme Court in the above case. It reads thus :
"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] are fulfilled, then we are of opinion that the deed should be construed as a mortgage."
The aforesaid principles are said to be some of the broad principles for construction of a document. The relevant clauses of the document for consideration before the Supreme Court have been quoted in para 9, and it has been held that the language of that document was not free from difficulty and was ambiguous. Accordingly, the attendant circumstances relied upon by the respondents of that case were discussed and it was ultimately held that the document in that case was a mortgage by conditional sale.
9. In order to test the validity of the argument advanced before us by Mr. [ENTITY], it is apposite to quote [SECTION] of the [ACT], which reads thus :
"(c) Where the mortgagor obstensibly sells the mortgaged property-
on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale;
Provided that no such transaction shall be deemed to be a mortgage, unless the condition it embodied in the document which effects or purports to effect the sale."
This is the definition of a mortgage by conditional sale. Therefore, if a document falls within this definition, then the presumption may be that the document is a mortgage by conditional sale and the onus will be upon the defendant to displace it, as laid down in the aforesaid Supreme Court's decision.
10. Now coming to the document (Exhibit A), the relevant clauses after the document recites the title and possession of the plaintiff and the annual jama of 16 annas being Rs. 3/- payable to the Government of Bihar, are the following:
"(a) At present, I, the executant, have several necessities.
(b) Without executing a deed of conditional sale, no other arrangement for each amount is possible. Therefore, I have executed this deed of conditional (sale) in respect of my share constituting 5 decimals of land together with all rights in favour of the claimant from 1972 to 1974 for the price of Rs. 400/-.
(c) On receiving the whole and entire amount, I, the executant, declare that the claimant to this deed shall remain in possession and occupation of the land covered by the deed of conditional sale by cultivating the same himself without paying the aforesaid rent and shall continue to appropriate the produce and the income thereof,
(d) I, the executant, shall within the year 1974 pay the entire principal amount aforesaid to the claimant to this deed and shall get a registered deed executed by the claimant to this deed, against which the claimant to this deed shall have no plea or objection.
(e) In case, I, the executant, fail to get a registered deed executed by the claimant to this deed by paying the amount within the term, this deed will be deemed to be the real sale deed after expiry of the term.
(f) I have neither transferred nor shall transfer the land covered by the deed of conditional sale anywhere in any manner, nor have I encumbered the same. The land is free from all sorts of defects.
(g) On expiry of the term, the claimant to this deed shall have the right to get his name recorded in respect of the said land and shall continue to appropriate the same generation after generation. Therefore, I have of my own accord and free will written a few sentences by way of conditional sale deed, so that the same may be of use when required."
In my opinion, the language of the relevant portions of the document quoted above is not explicit and clear, but is ambiguous. Therefore, the attendant circumstances are permissible to be looked into in order to gather the intention of the parties. Before I come to the construction of the document, the clauses of which have been quoted above, I shall refer to the decisions relied upon by learned counsel appearing on behalf of the appellant. Learned counsel has referred to a case of [PRECEDENT]. He has strongly relied upon a portion of paragraph five of this judgment which reads thus:
" The Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale. But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended. In a sale coupled with, an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to transfer the property within the period specified. The distinction between the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the documents viewed in the light of the surrounding circumstances. If the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. "
This decision of the Supreme Court reiterates the same principles as laid down in [ENTITY] case ([PRECEDENT] (supra). Their Lordships of the Supreme Court construed the document to be a mortgage by conditional sale on the construction of several clauses of the document viewed in the light of the surrounding circumstances.
11. The next case relied upon by Mr. [ENTITY] was the case of [PRECEDENT]. In the facts of that particular case it was construed that the document was the sale deed and not a mortgage by conditional sale. In the document considered in that case, according to their Lordships of the Supreme Court, there was a surrounding circumstance for holding that the document considered in that case was a sale deed, and their Lordships have held as follows (at p. 1908) :
" But there is one fact which dispels any doubt in regard to the construction of the document. The total area of the land mortgaged in the year 1923 was 13.17 acres and the amount advanced thereunder was Rs. 1,600/-. Only one year thereafter out of the said extent 12.6 acres was transferred by the document in question for a sum of Rs. 2,800/-, that is if the contention of the appellant was correct, a smaller extent of land was mortgaged for a higher amount. It is improbable that a mortgagee would advance an additional amount and take a mortgage of a smaller extent in discharge of an earlier mortgage whereunder a larger extent of land was given in security. Unless there are extraordinary reasons for this conduct, this would be a clinching circumstance in favour of holding that a document was a sale. "
12. It cannot be disputed that in ascertaining the intention of the parties it is the document in question which has to be construed, and a decision on a construction of the terms of another document cannot afford any guidance 'unless the terms are exactly similar to each other'. This principle is also laid down in this Supreme Court decision.
13. Now coming to the nature of the document under consideration, learned counsel for the appellant relied upon various clauses of Ext. A. In the first instance he pointed out that the lower appellate Court has erred in holding that Rs. 400/- was not the real price of the land in question as the defendant in his written statement has valued the property with structure constructed by the defendant at Rs. 1,000/-. Learned counsel drew our attention to the written statement itself (though not included in the paper book) and referred to us that the valuation of Rs. 1,000/- is explained therein by stating that the value of the land was Rs. 400/- and the value of the structure cost was Rs. 600/-, and thus the total value given in the written statement was Rs. 1,000/-. According to the learned counsel, the lower appellate Court has erred in construing the written statement as an admission that the value of the property under the mortgage was Rs. 1,000/-and, therefore, the consideration of Rs. 400/-was inadequate. He also argued that there is no evidence on record adduced from either side that Rs. 400/- was not the proper value of the land covered by the deed (Ext. A) and in absence of such evidence the Court below should not have recorded such a finding against the defendant-appellant. As it was an argument on behalf of the appellant that there is no evidence on record from either side about the real value of the land, it would be useless to call for a finding from the lower appellate Court. As the real market value of the land is not forthcoming, and the defendant had not adduced any evidence regarding the real value of the land, he cannot be permitted to say that Rs. 400/-was the real value of the land.
Therefore in the absence of any evidence as to the real value of the land, the defendant cannot take advantage of such a situation and contend that Rs. 400/- was the real value of the land. I would, therefore, proceed to deal with other clauses of the document relied upon by the learned counsel for the appellant. It cannot be disputed that the document in question has to be construed as a whole and no conclusion can be arrived at by relying upon few words used or a particular clause in that document, unless that particular clause shows the clinching circumstance for upholding the contention of any of the parties. Learned counsel for the appellant pointed out that nowhere the word 'mortgage' has been used throughout the document, but the document has been described as a deed of conditional sale. I have already indicated above that the document squarely comes within the definition of 'mortgage by conditional sale' as defined in [SECTION] of the [ACT]. Therefore, the presumption was in favour of the plaintiff and it is for the defendant to rebut the said presumption. Evidence has not been referred to by learned counsel for the appellant for showing attendant circumstances and it was conceded that there is no such evidence. Only reliance was placed upon some of the clauses used in this document (Ext. A). According to the language used in this document, learned counsel for the appellant contended that it should be construed as a deed of sale with condition of repurchase.
As already stated above, learned counsel pointed out that the word 'mortgage' nowhere has been used in the document, but the words 'conditional sale' have been used. He also pointed out that in absence of any evidence about the real value of the land, Rs. 400/- should be taken as the real price of the land covered by the document in question. The argument was that if a deed of reconveyance after repayment of the price was not taken by the end of 1974, then, according to the terms of the document, it would be construed to be a 'real sale deed' on the expiry of the period aforesaid. As no such document was taken by the plaintiff from the defendant within the aforesaid time, according to the learned counsel for the defendant-appellant, the defendant acquired absolute title. The question is whether this clause relied upon by learned counsel for the appellant from the document in question would make it a 'deed of sale with a right of repurchase'. It cannot be disputed that when a draft is made of a mortgage by conditional sale, the form and the language of the document as required under [SECTION] of the [ACT] would show the transaction covered by that document to be an obstensible sale and as laid down in [ENTITY] case ([PRECEDENT] (supra), "if a sale is obstensible, it must necessarily contain all the outward indicia of a real sale". The decision further says "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 '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 be under [SECTION], but whether that is done 'ostensibly' and whether conditions of a certain kind are attached."
Therefore, in my view, in absence of attendant circumstance, it cannot be construed from the clauses used in the document in question that it was a 'deed of sale with condition of repurchase'; and the defendant has miserably failed to discharge the onus which lay upon him. It is true that the lower appellate Court has relied upon the circumstances that Rs. 400/- was not the real value of the land for holding that the document is a mortgage by conditional sale, which conclusion is not borne out by the materials on record, but in my view the same conclusion can be arrived at from the reasons discussed above. It was for the defendant to show that the price of Rs. 400/- was the real value of the land and it was adequate. The defendant has not chosen to show it Therefore absence of such evidence does not help the defendant. There is also no clinching circumstance in favour of holding that the document in question was a sale. I, accordingly, hold that the document in question is a 'deed of mortgage with conditional sale'.
14. In the result, there is no merit in this appeal and it is, accordingly, dismissed. As the respondent has not appeared, I do not propose to make any order as to costs.
[ENTITY], J.
I agree.