CHANDRA SEKHAR PATHAK Vs. MURAL GOPE

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for redemption of a sudbharna bond dated the 4-8-1913, whereby 5 bighas 10/ 1/4 Kathas of land-bearing survey plot No. 2127 of Khata No. 36 lying in village chowki tauzi No. 591 within the Zamin-dari of the Mahant of Dularpure, district Monghyr, were given in sudbharna. The suit was contested on various grounds only one of which is relevant for the purpose of the present suit. The contention raised on behalf of the defendants was that the sudbharna mortgage bond was really an out and out sale but it was given the shape of a sudbharna bond inasmuch as there was no custom of transferability of raiyati land without the landlord's consent in the village in question, or in other words, the defence was that because of want of the custom of transferability of a tenancy holding without the consent of the landlord, the parties had to resort to the divicc of executing sale deeds in the form of sudbharna deeds in order to circumvent the bar of non-transferability. The trisil court rejected the contention of the defendants and held that the bond in question was a sudbharna bond and not a krbala. It, therefore, passed a decree for redemption. On appeal the lower appellate Court reversed the finding of the trial Court on this point and held that the transaction in question amounted to an out and out sale and was treated by the parties as such. It, therefore, allowed the appeal and dismissed the suit of the plaintiffs. Hence they have come up to this Court in this second appeal.

(2.) The only point that has been urged on behalf of the appellants is that no parol evidence was admissible to show that the document in question, though on its very face, was a sudbharna mortgage deed was in reality a deed of sale. It has therefore, been argued that the Court of appeal below was wrong in relying on parole evidence for coming to the conclusion that the document in question was an out and out sale and not a mortgage.

(3.) This appeal, first, came up for hearing before a single Judge who on account of the question raised as stated above referred it to be heard by a Division Bench on the 15-12-1851. Since thereafter a similar case appertaining to the village and tauzi in question came to be considered by a Bench of this Court of which I was a member in Ram Narain Prasad Singh v. Manki Singh, AIR 1954 Pat 562 (A). In that case also, within the zamindari of the said Mahant of Bularpure two mortgage deeds were executed which were pleaded by the defendants in the Suits for their redemption to be out and cut sale deeds. The reason for the said plea was the same as has been given in the present case, namely, that in order to circumvent the bar of non-transferability of tenancy holdings they were sold by execution of mortgage bonds which, for all purposes, were treated as sale deeds. It was held in that case that the documents in dispute, on their face, were mortgage deeds and the terms stipulated in them clearly indicated that the properties covered by those documents were given in security for a debt and not transferred absolutely. It was further held that the two mortgage deeds did not, in the least, when read by themselves, indicate that they were documents other than mortgage deeds, and that all the elements necessary to constitute them mortgage deeds were, on their face, plainly and abundantly present without any scope for any ambiguity. In the present case also the property covered by the sudbharna bond has been given in security for the debt, mentioned in that bond. The due date of payment was to expire in Baisakh 1350 Fasli. It is therefore, manifest that the trial court was perfectly correct in holding that the bond in question was a sudbharna bond and not a sale deed. Be that as it may, the point that has been urged before us is, as already stated, that the document in question on the very face of it being a mortgage deed, no parole evidence was admissible to prove that it was a sale deed. Mr. Das appearing for the respondents has, however, contended that under proviso (6) to Section 92 of the Indian Evidence Act any fact could be proved which showed in what manner the language of a document was related to existing facts. He therefore, contended that parole evidence was admissible to prove the circumstances namely, the custom of non-transferability of tenancy holdings, in order to show as to the manner in which the language of the document in question was used for making it out and out a sale deed though the shape given was a mortgage deed. He has also relied in support of his contention on Balkishen Das v. Legge, 27 Ind App. 58 (PC) (B) Hanif-un-Nisa v. Faiz-un-Nisa, 38 Ind App. 85 (PC)(C), Jhanda Singh v. Wahid-ud-Din 43 Ind App. 284: (AIR 1916 P. C. 49) (D). Maung Kyin v. Ma Shwe Law, 44 Ind App. 236: (AIR 1917 PC 207) (E) and Madhab Charan Das v. Rajani Mohan Das, 64 Ind Cas 583 (Cal) (F). Most of these cases as well as various other cases and proviso (6) to Section 92 of the Indian Evidence Act have been thoroughly considered in the above Bench decision of this Court, namely, AIR 1954 Pat 562 (A), and after an elaborate discussion of the law on the subject it has been held that proviso (6) of Section 92 comes into play only when there is latent ambiguity in a document, that is to say, when the language of the document is not prima facie consistent with the existing facts or in other words, when there is a conflict in the plain meaning of the language used in the document and the facts existing or when they put together lead to an ambiguity. It was further held that when the language used in a document is plain and not in any way ambiguous, in reference to facts existing there is no scope for coming into play of the rule of interpretation laid down in proviso (6) to Section 92, Evidence Act. In this connection the following observation made by, Ahmad J., who delivered the judgment may be profitably quoted here: