BABU BISHAMBHAR NATH Vs. MUHAMMAD UBAID ULLAH KHAN

JUDGEMENT

(1.) The question for decision in this appeal is whether a deed dated, 25 June 1886 executed by Durga Prasad and others in favour of one Qudrat Ullah Khan was an out and out sale or a mortgage by conditional sale. There is a subsidiary question as to whether this issue is res judicata between the parties by reason of the decision in Suit No. 124 of 1886. The document was on the face of it a sale- deed with a condition that if the purchase-money and any arrears of rent which happened to remain due at the time of re-payment were re-paid to the vendee on the last day of Jeth sixteen years alter the purchase, the vendors would be entitled to get back the property. It was clearly stipulated that unless payment was made on this particular date 110 right of re-purchase was reserved-to the vendors.

(2.) The question has been argued on the footing that the test of whether the document was sale or mortgage was 1he intention of the parties at the time of entering into the transaction. This rule was originally laid down by the Privy Council in Bhagwan Sahai V/s. Bhagwan Din 12 A. 387 : 17 I.A. 98 : 5 Sar. P.C.J. 557 : 6 Ind. Dec. (N.S.) 992 (P.C.) and was re-affirmed by their Lordship in Jhanda Singh V/s. Wahid-ud-din 36 Ind. Cas. 38 : 38 A. 570 : 31 M.L.J. 750 : 21. C.W.N. 66 : 20 M.L.T. 529 : 14 A.L.J. 1189 : (1916) 3 M.W.N. 570 : 19 Bom. L.R. 1 : 5 L.W. 189 : 25 C.L.J. 324 : 10 Bur. L.T. 131 : 43.

(3.) Dr. Sen in one portion of his very able argument on behalf of the appellant took the position that any deed which profession to be a sale-deed with a condition allowing the vendor to re-purchase came within the definition of a mortgage by conditional sale contained in Section 58(c) of the Transfer of Property Act, aid must be presumed to be such unless the surrounding circumstances were such as absolutely to exclude the possibility of a mortgage having been intended" This idea is supposed to derive some support from the decision in Mohindra Man Singh v. Maharaj Singh 70 Ind. Cas. 132 : 20 A.L.T. 810. (1923) A.I.R : (A.) 48 : 45 A. 72. A reference to Section 58(C) is sufficient to show that this is a misleading of the law. A mortgage by conditional sale is there defined as a mortgage in which the mortgagor "ostensibly sells the property on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment (i.e., payment of the mortgage-money) being made the sale shall become void, or on condition that on such payment (again referring back to the payment of the mortgage-money) being made the buyer shall transfer the property to the seller."