CHODHARI MADHAJI GANESHIJI Vs. PATEL MAGANDAS BECHARDAS

JUDGEMENT

(1.) This is original plaintiff second appeal direct and the decision of the learned Assistant Judge Mehsana. given on October 26, 1967 in Regular Civil Appeal NO. 19. of 1966. The leaned Judge had thereby allowed the appeal of the respondent- defendant and dismissed the plaintiff Regular civil Suit No. 27 of 1965 which suit was decree by the learned Civil Judge, Kalol. by his judgment a and decree dated December 27, 1965. The plaintiff suit was for redemption of an alleged mortgage Ex. 20 dated June 22 1953. The said document is an estensible sale-deed. There is a condition incorporated in the document provided for the reconveyanced of the property to the plaintiff on a fixed date which would fall on the completion of five years of the execution was a mortgage by conditional sale and not a sale outright with a condition of re-purchase. It was his case that by incorporation of the said condition, the transaction which was ostensibly a sale was in its true character a mortgage transaction,. The learned trial Judge construed the suit document Ex. 20 in the context of the surrounding circumstances. namely:-- I. That certain date was fixed for repayment and for reconveyance. II. That the price fixed originally was Rs. 1,551/- but as the plaintiff was to meet the expenses of the registered document the consideration was raised to Rs. 1,650/-. III. That the amount of consideration which was costly and no landholder was prepared to sell the same. IV. That the document did not reply to plaintiff notice Ex. 24 dated 15-864 which was admittedly served on the defendants and in which notice the plaintiff had alleged that the transaction was one of mortgage by conditional sale. V. That the plaintiff was in need of money to meet his debts. VI. That the defendants did not produce the previous document which was executed in the defendants account-book and which would have shown the real natural of the transaction. VII. That the defendants did not hold a money-lending licence. Having regard to these circumstance and in the context of the language used in the document the learned trial Judge found that the real character of the document was a mortgage by conditional sale and not a sale outright with a condition of repurchase. He thus passed a preliminary decree of redemption to be drawn under Order 34, Rule 7 of the Code Civil Procedure and in Form No. 7B of Appendix D of the Code. In defendants appellant the learned Assistant Judge, Mehsana has found that the language of the document was not ambiguous and that even otherwise the circumstance showed that the document was one of outright sale. He thus accepted the appeal of the defendants and dismissed the suit and reversed the Preliminary decree of the redemption of the property that was passed by the learned trial Judge. It is against this decision that the present second appeal is directed.

(2.) It is not dispute that the parties reside in village Amja of Taluka Kalol, District Mehsana. they are owners of neighbouring agricultural lands. ?The transaction which is evidence by registered document Ex. 20 dated June 22. 1953 and which is the suit document was preceded by negotiations between the parties to which defendants witness Ambalal examined at Ex. 39. was a party. Ambalal who happened to the Sarphanch of the Gram village was instrumental in bringing about the transaction. A 'Kachha; writing for this transaction on a consideration of Rs. 1,151/- was made in the account-book of the defendants and this was written by the said witness Ambala and attested as admitted by the him in his evidence. This writing has not been produced by the document although it was in his possession. According to the plaintiff if the writing had been produced it would have shown the real character of the transaction as one of mortgage by conditional sale. The plaintiff was in need of money at the relevant point of the time as admitted by witness Ambalal who haw stated that the plaintiff wanted money for paying his debts to Chandubhai and of some others. The defendants did not posses the money lending licence as admitted by him in his evidence at Ex. 32 in paragraph 8. It was in these circumstance that the suit document came to be executed on the day next to the writing taken by the defendants in his own account-book and not now produced in Court.

(3.) It is settled law that the question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase must be decide on its own facts. In such case, the intention of the parties is the determining factors as observed by the Supreme Court in Chunchun Jha v. Ebadat Ali AIR 1954 SC 345. The Supreme Court has observed that 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 instrument? The Supreme Court has further observed that where a document has to be constructed. 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 though to 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 the words which they used. If, however, there is ambiguity in the language employed then it is premissible to look to the surrounding circumstance to determine what was intended: