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TMI Blog1962 (11) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... on appeal the Subordinate Judge, Bhagalpur, accepted the contention of the appellant and decreed the suit but on second appeal the High Court held that the document was a sale and on that finding the appeal was allowed and the suit was dismissed with costs throughout. The appellants by Special leave preferred the present appeal against the decree and judgment of the High Court. 3. The only question in this appeal is whether the said document is a mortgage or sale. As the question turns upon the construction of the provisions of the sale deed, it would be convenient to read the document as the High Court did omitting the unnecessary words :- 1. We, the executants, executed a registered Sudbharna bond, dated 1-3-1923, in favour of Deonath Bhagat and Raghunath Bhagat and received the entire consideration money. 2. We, the executants, are badly in need of some money in cash for repayment of debt of Sumeri Kapri and are in great need of some more money in cash for meeting the expenses of cultivation, purchasing bullocks and also for meeting the household expenses and repayment of petty debts to creditors. 3. We, the executants, cannot arrange the aforesaid money in cash wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of repurchase. The former is a mortgage, the relationship of debtor and creditor subsists and the right to redeem remains with the debtor. The latter is an out and out sale whereby the owner transfers all his rights in the property to the purchaser reserving a personal right of re-purchase. The question to which category a document belongs presents a real difficulty which can only be solved by ascertaining the intention of the parties on a consideration of the contents of a document and other relevant circumstances. Decided cases have laid down many tests to ascertain the intentions of the parties but they are only illustrative and not exhaustive. Let us therefore look at the terms of the document extracted above. The learned counsel for the appellants relied upon the following circumstances :- 1. The consideration of the document went mainly in the discharge of a registered sudbharna bond dated March 1, 1923, given in favour of the respondents 1 2. It indicates that relationship of creditor and debtor was continued under the document. 2. There are no words of conveyance in the document. 3. There are no words of re-conveyance after the stipulated date. 4. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the rent by the executants for a short period subsequent to the execution of the document may be due to the fact that the rent had become due before the execution of the document or for some other circumstance which is not clear from the document. This is at best a neutral circumstance. The fact that in case of any defect in title the vendees were dispossessed, the consideration amount with interest was charged on the property is nothing more than an indication of the intention to keep alive the mortgage's rights under the earlier document. The said clause only makes explicit what the respondents would be entitled to in law. The translation of the words 'tamashuk sarti kebala' as mortgage by conditional sale does not appear to be correct. The learned Subordinate Judge observes that if those words were literally translated, they would mean 'a bond by way of conditional sale'. If that was the meaning the said expression would be consistent both with a mortgage by conditional sale as well as a sale with a right of re-purchase. In law Lexicon, P. Ramanatha Iyer gives the following meanings to the word 'kebala'; 'Any deed of conveyance or transfer of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents and it is highly improbable to say the least that a person would advance the amount equivalent to the value of the land mortgaged without keeping a reasonable margin for realizing his amount. This is sought to be explained by throwing a suggestion that as the respondents were put in possession, they would be getting the interest and therefore there was no chance of the debt exceeding the value of the property. Even so a mortgagee in lending monies would insist upon a reasonable margin in the value of the property to provide against the possible contingency of the properties going down in value and the amount due to him swelling by the addition of cost, damages etc., in the event of his filing a suit to recover the same. In our view whatever ambiguity there may be in the document, the fact that only a portion of the land already mortgaged was sold for a proper and adequate consideration is a circumstance which stamps the document as an out and out sale. 7. Reliance is placed by the learned counsel for the appellants on a judgment of this court in 'Pandit Chunchun Jha v. Sheikh Ebadat Ali' [1955]1SCR174 . It may be stated at the outset that for ascertaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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