SM NILAMONI BEWA Vs. MRUTUNJAYA PRADHAN

JUDGEMENT

(1.) This appeal was heard by Das, J. & Narasimham J. In view of the four unreported decisions of this Court in Second Appeal No. 10 of 1945, Second Appeal No. 192 of 1946, Second Appeal No. 86 of 1944 & Second Appeal No. 41 of 1946 giving rise to conflicting opinions on some vital aspects of the question as to certain distinctive features of a transaction of "mortgage by conditional sale" as distinguished from "a sale out & out", they have referred it to a Full Bench. The divergence of view, that according to them was of a serious character, was regarding the burden of proof, & besides, it also related to the effect of

(2.) The conflict of opinion, as to the burden of proof, arose in the following manner: In the unreported decision of a Division Bench of this Court consisting of myself & brother Panigrahi in Second Appeal No. 10 of 1945, it is held that in a case where the distinctive condition of a "mortgage by conditional sale" is embodied in the document, that effects or purports to effect the sale, the transaction is prima facie a mortgage. A contrary view was given in Second Appeal No. 86 of 1944" in their decision by my learned brothers Das & Narasimham, JJ., to the effect that

(3.) In this context, the question that arises for consideration is whether the case of 'Gouri Pradhan v. Bhagaban Pradhan', in Second Appeal No. 10 of 1945 has been correctly decided. The propositions for solution may be formulated as follows: Firstly, whether if "the condition is embodied in the document which effects or purports to effect sale" as prescribed in the proviso to Schedule 8 (c), T. P. Act, it gives rise to a presumption that the transaction is a mortgage; Secondly, whether the express provision for postponement of mutation of the grantee's name in the landlord's papers till after the time for repayment expires is decisive of the transaction being a mortgage; Thirdly, whether the covenant for refund of the consideration money with interest from the date of grantee's dispossession, if any, either attributable to defects of grantor's title or otherwise, is a circumstance decisive of its character as a mortgage; & Fourthly, in view of Das, J's expression of doubt about the correctness of certain observations of Panigrahi, J., in Second Appeal No. 41 of 1946, with which I did not go to the full length of concurring at the time, the further question that arises for solution is whether in case of ambiguity or doubt, the construction should lean in favour of a mortgage & not of a sale, or, whether, on the other hand, ex facie import of the tenor of the document or documents shall prevail.