MOHAMMAD USMAN Vs. ABDUL RAHAMAN

JUDGEMENT

(1.) The question raised in this appeal is as to the true construction of a document dated the 26 Jaistha, 1308 B.E. The Courts below differed in construing the document, the Court of first instance holding that it was a mortgage by way of conditional sale, and She lower appellate Court being of opinion that it was a deed of out and out sale. The document runs in these words: " I have been in the ownership and possession of land fit for erection of shops by right of nay purchase within the boundaries mentioned below situated in the line to the north of the road facing westward in Bander Bazar Chak. Now for my own necessity, on receipt from you Rs. 400 in cash as the price of that shop land, I sell to you the same and I and my descendants cease to have right therein. You from this day being in ownership and possession in these lands, continue to enjoy the same with the rights of transfer by gift and sale, etc. I and my successors cease to have any right thereto I make over my kobala of purchase dated the 11 Sravan, 1287. Moreover, when I or my heirs would return the purchase price to you and your heirs, you shall give up the properties. And I shall get this kobala registered within the period of limitation." There is a further stipulation in the document which runs in these words: " Moreover if I Pay you back the said price of Rs. 400 then you will without any objection give up the lands sold and return the connected deeds, etc. I shall seek the protection of Court if you do not return the same." In construing the document in the present case it should be remembered that the transaction was between parties who were Muhammadans and it is well known that documents are executed by Muhammadans in which they conceal, or at least try to conceal, the real nature of the transaction and attempts to make out that the transaction is an out and out sale, although as a matter of fact, the intention of the parties was to create a mortgage. The learned Subordinate Judge was of opinion that the deed was one of out and out sale. He relied upon certain pieces of evidence which is evidence relating to the subsequent; conduct of the parties themselves as showing their intention. This evidence has been laid down by the Judicial Committee in the case of Maung Kyin V/s. Ma Shwe La A.I.R. 1917 P.C. 207 as not admissible in a case where no third parties are involved or no question of fraud arises. In order to construe the document intrinsic evidence afforded by the terms of the document has to be taken into consideration, and the Court has also to take into consideration the facts which may legitimately be proved with a view to showing in what manner the language of the document was related to the existing facts and may also refer to the contrast between the value of the property and the consideration that passed in money. Those principles have been laid down by this Court in the case of Abdul Goffur V/s. Sheik Jamal [1913] 18 C.L.J. 228 and also by the Judicial Committee in the very recent case of Raja Narasingerji V/s. Raja Panuganti A.I.R. 1924 P.C. 226.

(2.) So far as the first of these elements is concerned, namely, the adequacy or other wise of the consideration of the transaction there is no discussion of it in the judgment of the learned Subordinate Judge, while in the judgment of the learned Munsiff it appears that the consideration mentioned in the document was Rs. 400; whereas the executant of the document had purchased it for Rs. 600 long before the data of the document in question. This clearly shows that the consideration was wholly inadequate. It was certainly one of the matters to be taken into consideration in determining the real character of the documents. The learned Subordinate Judge in dealing with this question has referred to the decision of this Court in the case of Kamini Kumar Chowdury V/s. Latifunnessa Chowdhurani [1920] 24 C.W.N. 176 (Notes). That decision affords us very little assistance inasmuch as we are not in a position to know exactly what the terms of the document in that case were.

(3.) The learned Subordinate Judge says that the document on the face of it purports to be a kobala, that the word sale is clearly mentioned in the document; and it is also stated in the document that the purchaser, his sons and grand-sons are to enjoy the lands and the executant gives up his right and authorizes the purchaser to transfer the same by sale or gift, etc. These terms undoubtedly would go be show that the object of the executant was to make out that the document would purport to be one representing an out and out sale. But that is a matter of very little consequence if we take into consideration the fact that the document was executed between the Muhammadans; and even if the real object of the parties was to create a mortgage they might conceal that intention by using terms and expressions of this description. The learn-ed Subordinate Judge then goes on to say that there is absence in the document as to certain date within which the money was to be repaid. This omission, however, would not indicate that the deed was not one of mortgage, as will be seen from the decision of this Court to which I have already referred; the case of Abdul Goffur V/s. Sheikh Jamal [1913] 18 C.L.J. 228. The document in that case provided that if ever the vendor or his sons or son's sons or other heirs paid up the price the vendee or his sons or his son's son or other heirs would be bound to reconvey the homestead. As was observed by Mr. Justice D. Chatterjee in that case, whose decision was upheld on appeal by the Chief Justice, Sir Lawrence Jenkins, and Mr. Justice Mookerji that if the term is indefinitely long it should be taken as indicating that an absolute sale was not meant. So the mere absence of the mention of a certain date is no indication as to the real character of the document. Then the learned Subordinate Judge says that there was no mutual agreement in the document for bringing a suit for redemption. But the absence of any reservation to the purchaser of the right to recover his purchase money or of a stipulation authorizing the grantor to sue for redemption, is not always a safe criterion for the determination of the question. The learned Subordinate Judge says that the executants parted with possession immediately after the execution of the document; but it is usual in such cases to put the mortgagee in possession and set off the rents against the interest.