MUHAMMAD Vs. KATHEEYUMMA

JUDGEMENT

(1.) THIS is a defendants' appeal from the decree of the learned Subordinate Judge, Tirur, affirming the decree of the trial court in O. S. No. 353 of 1966.

(2.) THE suit was for redemption of what according to the plaintiff was a mortgage by conditional sale. THE defendants contested the suit on the ground that the transaction in question was not a mortgage, but an out and out sale with a right of repurchase in the vendor. It was contended that the suit for redemption was not maintainable in respect of the suit property.

(3.) CERTAIN principles are well-settled in regard to the construction of a document such as Ext. Al. The test to be applied in determining whether a transaction is a mortgage or a sale is to find out the intention of the parties to the instrument. Their intention has to be gathered from the language of the document itself viewed in the light of the surrounding circumstances: Jhanda Singh v. Sheikh Wahid-ud-din, (1916) 36 I. C. 38 ). For the purpose of ascertaining their intention, oral evidence, other than that of surrounding circumstances, is not admissible, as it is excluded by S, 92 of the indian Evidence Act. The case has therefore to be decided on a consideration of the contents of the document itself "with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts": Balkishen Das v. W. F. Legge (1899) ILR. 22 Allahabad 149 PC. ; Raja Bahadur Narasingerji gyanagerji v. Raja Panuganti Parthasaradhi Rayanim Garu (AIR. 1924 PC. 226 ).