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TMI Blog1952 (12) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... an agreement to reconvey executed by the vendee under the sale deed. The contention on behalf of the appellants was that both these documents embody a single transaction which was either a mortgage by conditional sale or an anomalous mortgage. In this view they claimed redemption of the same. There were also other allegations challenging the validity of the transaction, but the learned Subordinate Judge found against them and we are not concerned with them in this appeal. 2. The defence to the claim for redemption was twofold. The contesting respondent, namely, first respondent, who is the son of Venkataramaraju, pleaded that it was not open, in view of the proviso to Section 58(c), Transfer of Property Act, to contend that the transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have that effect. Its object evidently was to shut out an enquiry whether a sale with a stipulation for retransfer is a mortgage where the stipulation is not embodied in the same document. The learned Judges followed the ruling of the Rangoon High Court in -- 'Ma Sein Nyo v. Maung San Pe', AIR 1935 Rang 212 (B). With great respect to the learned Judges we entirely agree with this decision. No authority has been cited to us which takes a different view on this point. The argument of the learned counsel to the contrary proceeded on a misapprehension of the effect of holding a transaction which consisted of an ostensible sale and an agreement to reconvey to be a mortgage. It was evidently an implication underlying his argument th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgagee an ostensible sale deed and the intention of the parties is to be arrived at by the construction of the document, the proviso says that the right of repurchase must be embodied in the same document, and that if it is embodied in more than one document the inference of a mortgage would not necessarily arise, and that no transaction should be deemed to be a mortgage by conditional sale unless the condition is embodied in the document of the ostensible sale. These observations were not necessary to dispose of the case before the learned Judges which arose out of a document executed long before the proviso was inserted in the Act. Indeed there was only one document of sale in which the condition to reconvey was embodied. We do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the first part of the sentence which implies that in spite of the proviso even if the agreement to sell and the covenant to repurchase are embodied in more than one document, a court could hold that the transaction amounted to a mortgage. 6. In a later decision of the Nagpur High Court reported in -- 'Samsher Khan v. Vithaldas', AIR 1946 Nag 264 (F) these very observations of Niyogi A. J. C, were not approved. The learned Judges said: In (E) which was one of these cases, Niyogi J. suggested that the proviso to Section 58(c) could not be interpreted as laying down any rigid rule that if the agreement to sell and the covenant of repurchase were embodied in more than one document the inference of a mortgage would not. nec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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