SHYAM LAL Vs. SHYAM NARAIN

JUDGEMENT

(1.) THIS is an appeal by defendant No. 4. It arises out of a suit for redemption of half share in the property in question on payment of Rs. 500/-. The material facts are as follows. The property in question was owned by two brothers Bhaggu and Buddhoo. On 20-6-1910 the sons of Bhaggu and Buddhoo executed a deed for Rs. l.000/- in favour of Sukhdeo Prasad. Again, on 17-2-1916 the three sons of Bhaggu sold the property to Sukh deo Pande and Sakatram defendant No. 1. Sukhdeo Pande is now dead and his sons are defendants Nos. 2 and 3. On 5-11-1959 ShyamLal, the present appellant got the property in question by an exchange from de fendants Nos. 1, 2 and 3. It appears that on 27-11-1959 Ashgar and Haflz sons of Kallu, Ishaq son of Buddhoo and Abdul Karim son of Rahim Baksh sold their share of the equity of redemption in half the shop in favour of Ram Lakhan. On 6-2-1960 Ram Lakhan obtained a sale deed from Idris in respect of his share of equity of redemp tion. Thereafter Ram Lakhan filed the suit, which has given rise to the present appeal, for redemption of the half share in the pro perty in question. This suit was contested only by defendant No. 4, the appellant, on a variety of grounds. The trial court found that the document dated 20-6-1910 was a mortgage deed and the plaintiff had a right to redeem half of the property. It accord ingly decreed the suit. Against that deci sion ShyamLal filed an appeal.

(2.) IT appears that before the appel late court below only one point was pressed, namely, that the document dated 20-6-1910 Was not properly construed inasmuch as it was an outright sale and not a mortgage by conditional sale. This contention did not find favour with the appellate court below and the appeal was dismissed. Aggrieved, Shyamlal has now come to this Court in second ap peal.

(3.) IN construing a document the fundamental rule is to ascertain the intention from the words used therein. If the words are plain and unambiguous they must in the light of the evidence of surrounding cir cumstances be given their true legal effect. If there is ambiguity in the language employ ed, 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 langu age of the deed was related to existing facts. Evidence of contemporaneous conduct is al ways admissible as a surrounding circum stance; but evidence of subsequent conduct of the parties is inadmissible. (See Bhaskar Waman v. Shrinarayan Rambilas, AIR 1960 SC 301). The plaintiff had contended that the transaction in question was a mortgage by conditional sale whereas the appellant had contended that it was an outright sale subject to a condition of reconveyance of the property in favour of the vendors. Such a question is undoubtedly a vexed one and has got to be decided on its own facts. In the instant case, it was stipulated in the v document, Ex. A-l, that the property in question was sold for a sum of Rs. 1, 000/-and possession thereof was delivered to the purchaser on the condition that if within a period of 10 years commencing from the date of the execution of the document the principal amount was paid to the purchaser by the vendors the possession of the said property would be restored to the vendors otherwise the document would be a sale deed. It was urged that by the terms contained in the document no relationship of the debtor and the creditor was created and that the property in question was not given by way of security for any debt and as such the transaction was not a mortgage by condi tional sale but was an outright sale. In the case of Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345, the Supreme CourtLald down 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 shaft have a right to repurchase. In every such case the question is, what upon a fair con struction, is the meaning of the instruments. The document Ext. A-l obviously does not create any relationship of debtor and credi tor. There is also no stipulation of payment of any interest nor is there any provision to the effect that the property in question was being given by way of security for any loan. By that document, the executants thereof conveyed the said property absolutely to the purchaser. The document nowhere imposes any obligation on the part of the vendors to recover the property on payment of the price but gives them only an option to do so. It was argued on behalf of the respondents that the vendors had reserved to themselves the right to purchase the property and no right in that respect was given to the pur chaser to enforce that obligation. This argu ment in fact supports the appellant. As indi cated above the stipulation in the document merely gave an option to the vendors to pur chase the property but it did not impose any obligation on the vendors to recover the pro perty on payment of the principal sum of Rs. 1, 000/-. The parties did not lead any oral evidence to prove the intention of the parties to that document. There is also no evidence on record pertaining to the con temporaneous conduct of the parties. The court below however placed reliance on the subsequent conduct of the parties, namely, the execution of the other two documents of 27-11-1959 and 6-2-1960 in coming to the conclu sion that the transaction of 20-6-1910 was a mortgage by conditional sale. This evidence Was however, inadmissible and could not be looked into. (See AIR 1960 SC 301).