NARAYAN RAMKRISHNA PANDIT Vs. VIGHNESHWAR GANAP HEGDE

JUDGEMENT

(1.) The only question involved in this appeal is, whether the document, Exhibit 25, executed by the plaintiffs in favour of the defendants, is, as on its face it purports to be, a sale, or is in reality a mortgage in the guise of a sale. The plaintiffs suit was brought to redeem the mortgage which, as the plaintiffs alleged, was effected by this Exhibit 25, so that admittedly the suit must fail if it should be held that no mortgage is created by this document.

(2.) The learned Judge below was of opinion that Exhibit 25 was in reality a mortgage, and the grounds of this opinion are stated by him in the following words: after referring to the terms providing for the condition to repurchase the property after the lapse of twenty years, the Judge says: But for the addition of these terms the deed (Exhibit 25) would have been a sale. But with the addition of the terms the deed becomes a mortgage by conditional sale, because there is a condition in Exhibit 25 that the sale should become void on payment of Rs. 13,000 by instalments or in a lump sum within twenty years [vide Clause (c), Section 58 of the Transfer of Property Act]. Under the circumstances it is not necessary to find out the indications which determine any transaction to be a mortgage.

(3.) But it seems to me clear that the question, whether Exhibit 25 effects a mortgage or a sale, is not to be answered by mere reference to Clause (c) of Section 58 of the Transfer of Property Act. And, if I am not mistaken, to decide the point upon this view is to assume what is really in dispute. For, Section 58 of the Transfer of Property Act defines what a mortgage is, and Clause (c) of the section describes one method of effecting a mortgage, viz., the method of mortgaging by conditional sale. But the words of Clause (c) are to be read not in an isolated manner, but in reference to the first paragraph of the section, and when they are so read, it will be manifest that Clause (c) comes into play only when there is a mortgage as that term has been defined. Now from the definition itself there is no mortgage except where there is a transfer of an interest in specific immoveable property for the purpose of securing the payment of a debt, and the whole question involved in this debate is, whether the Rs. 13,000, paid for the lands transferred by Exhibit 25, was an out and out price paid for land sold or was a continuing debt secured by a transfer of the immoveable property. To decide between these two theories we must look at the intentions of the parties as those intentions have been disclosed in the documents executed. As was said by Lord Chancellor Cranworth in Alderson v. White (1858) 2 Deg. and J. 97 at p. 105: