MT MUMTAZ BEGAM Vs. MTLACHHMI

JUDGEMENT

(1.) The only question in this Letters Patent Appeal is whether the document in question dated 14 February 1910, evidences an out and out sale or whether a mortgage by conditional sale.

(2.) It appears that the appellant Mt. Mumtaz Begam borrowed a sum of rupees 400 on 2 October, 1905 from two persons Narwar Mal and Kishan Lal. The mortgage was a simple one and carried interest. Five years later the appellant executed the document in question and purported to sell the property in consideration of the loan that was owing by her. It was agreed that if Mumtaz Begam paid the "money within three years the property would be "released" (wa guzasht kara lengen). The plaintiff's suit has been dismissed by the Courts below and a learned single Judge of this Court. The first two Courts came to the conclusion that on the true interpretation of the document it was an out and out sale and the condition as to the "release" of the property on payment within three years did not bring the transaction down to one of a mortgaga by conditional sale. In second appeal the learned single Judge of this Court did not consider the document itself, on the ground that no transaction of the document had bean placed before him. The learned Judge however considered the law on the point, and after a careful consideration of the law came to the conclusion that he had no reason to differ from the finding of the Courts below.

(3.) The document has been read out to us, and we have carefully gone into the language of the document ourselves. The whole question before the learned single Judge was whether the document expressed a transaction of sale or a transaction of a mortgage. The answer to the question can properly be given by a consideration of the language alone and possibly in conjunction with certain circumstances. But if the document was not to be looked into, the only consequence that should have followed was a dismissal of the appeal on the sole ground that the transaction of the document had not been placed before the learned single Judge; but as the learned single Judge has gone into the case, we feel that we are justified in looking at the document itself. If the learned Judge had dismissed the appeal on the sole ground that a translation of the document had not been placed before him, as required by the rule, probably we would not have been in a position to say that the learned Judge was wrong and that we should be prepared to. hear an appeal against his judgment. But, as already stated, the case has been heard on the merits, we feel we are bound to look into the document itself.