MT MUMTAZ BEGAM Vs. MTLACHHMI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for redemption of what is alleged by the plaintiff to be a mortgage by conditional sale dated 14 February 1910, that is long after the Transfer of Property Act came into force. The defendant's contention is that the transaction was an out-and-out sale. Both Courts have agreed with the defendant and have dismissed the suit.

(2.) The transaction is all evidenced by only one document. I have not had the document itself placed before me. Nor has the Court been supplied with a translation or transliteration of the document as required by the rules of the Court. From the judgment of the trial Court it is manifest that in addition to the sale there was also a clause empowering the transfer to repurchase the house that had been sold at any time within three years from the date of the sale. The trial Court has held that there was nothing to show that the relation of debtor and creditor continued to exist, that the documents of title were all handed over to the purchaser; that immediate possession of the house was given, that there was nothing about interest; that the price was a very fair one; and that the period for the purchase was a fair indication that the document was intended to be a sale and not a mortgage-deed. The lower appellate Court referred to the fact that the present suit had been brought 15 years after the execution of the deed, i, e., about 12 years after the date fixed for the purchase; that all the incidents of an absolute sale had come into effect including immediate possession and the passing of the title; that the price was found more than a fair price; and that there was nothing to show that there was a relation of debtor and creditor continuing to exist between the parties. Both Courts held without hesitation that the document constituted an out-and-out sale with a covenant that the vendee would resell the property if he was asked to do so within three years. The only material section of the Transfer of property Act is Section 58.

(3.) The case stated by counsel for the appellant, if I have put it together correctly from his argument and the cases referred to by him, is as follows: The only portion of Section 58 requiring consideration is 01. (c). It is not necessary before applying 01. (c) first to determine whether there is a mortgage at all. The: words "the mortgagor," "mortgaged property" and "mortgage-money" must be read as "the transferrer," "the property" and "the price or consideration" respectively. Whore there is a transfer which is on the face of it a sale coupled with one or other of the conditions set out in Clause (c) that transfer is a mortgage by conditional sale, and the question of intention is immaterial.