MAHABIRSINGH Vs. BIGAN SAHUN

JUDGEMENT

(1.) The decision of this appeal by the plaintiff depends upon the proper construction of a document, viz., whether it should be construed as a sale out and out with an option of repurchase by the vendor, or whether it is a mortgage by conditional sale. A large number of cases have been cited before us, but in truth, the question depends upon the construction of the document itself though assistance may be sought from the observation made by their Lordships of the Judicial Committee when construing similar documents.

(2.) The document itself contains these important provisions: (1) It has been stipulated as a condition of sale between me, the executant, and the vendee that if I shall wish to repay the said consideration money after arranging for the same from my private fund within 16 September 1943 to the said vendee and take back the said vended share in that event the said vendee or her heirs and representatives shall take back the consideration amount without any objection and shall return the vended share and the deed of conditional sale, and shall not raise any objection thereto. (2) If the vendee or her heirs and representatives raise any objection, in that case I shall be competent to deposit Rs. 300 in the. Government Treasury in the district of Palamau and shall inform the said vendee or her representatives by means of a notice from the Court and shall enter into possession and occupation of my said vended share. (3) The said vendee or her heirs and representatives shall not be entitled to enter into any transaction whatsoever directly and indirectly and transfer or encumber the said vended share under any registered or unregistered deed within the period of the conditional sale. (4) If I or my heirs fail to repay the consideration amount within the due date, in that event on 17 September 1943 the said vendee shall have full rights and claims in respect of the said vended property.

(3.) In my opinion, these conditions in the document unmistakably point to the transaction being a mortgage by conditional sale. The cases relied upon so strongly by Mr. De point to the game conclusion. In Bishan Lal V/s. Banwari Lal , the learned Judges while considering the document More them laid stress upon a provision which ran as follows: I, the executant or my heirs and representatives shall not pay the amount by transferring or hypothecating the said house sold to any one for this purpose nor shall they transfer or hypothecate the property to any one else for five years after taking it back on payment of the amount of consideration. and observed that this restriction upon the executant in regard to her right to have the property retransferred to her within one year is also inconsistent with the relationship of mortgagor and mortgagee. In the present case, there is a converse condition, namely, that the vendee is debarred from encumbering or transferring the property before 17 September, 1943, the document was executed on 16 September 1940. This restriction is only consistent with the fact that the rights in the property still remained with the vendor. This view is further strengthened by the term at page 4 that if the vendor fails to repay the consideration money within the due date, in that event on 17 September, 1943, the vendee shall have full rights and claim in respect of the vended property.