Manohar Lall, J.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 16th 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 17th 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 Munshi Bishan Lal Vs. Lala Banwari Lal and Others, , 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 17th September 1943, the document was executed on 16th 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 17th September 1943, the vendee shall have full rights and claim in respect of the vended property.

4. Reliance was placed upon Bhagwan Sahai v. Bhagwan Din 17 I.A. 98. In that case their Lordships had to construe two documents and held that the true construction thereof did not establish the relationship of mortgagor and mortgagee between the parties, but purported to be an absolute sale with a right to repurchase within ten years. Their Lordships observed at page 102 that.

in this case the vendors did not stipulate that they should have a right to repurchase; but the vendee as a matter of grace and kindness, stipulated that they should have that right.

The real test in such cases is that which was pointed out by the Lord Chancellor in Alderson v. White 1858 De G. & J. 97 referred to by their Lordships, viz.

In every such case the question is, what upon a fair construction is the meaning of the instruments Here the first instrument was on the face of it an absolute conveyance; the second gave a right to repurchase on payment not of what should be due, but of the full amount of the purchase money of & 4739.

I cannot see how this case helps the appellant.

5. Jhanda Singh v. Waheduddin AIR 1916 P.C. 49, was also cited by Mr. De. In this case, their Lordships again referred with approval to Alderson v. White 1858 De G. & J. 97 and to the case of Manchester, Sheffield and Lincolnshire Ry. Co. v. North Central Wagon Co. 1888 A.C. 554 and distinguished the case of Balkishen Das v. Legge 27 I.A. 58 thought that the case before them resembled the case of Bhagwan Sahai v. Bhagwan Din 17 I.A. 98. This case was really cited before us in order to show that the provisions in the agreement of sale for a deposit in Court of the repurchase price do not neoessarily show an intention to mortgage, as is said in the head-note; but on a perusal of the judgment of their Lordships at page 289 it appears that this part of the head-note is not correct, because their Lordships while referring to the conditions.

in the event of our refusal, they have power to deposit into the treasury attached to the Court the amount of the consideration in the sale deed, and after, institution of a suit in Court to purchase their property again

observed:

The wording of the first two lines leaves their meaning somewhat obscure. They may mean to confer upon the vendors the right and power to make this deposit or they may possibly mean merely to state the fact that the vendors already possess this right and power, having derived them from a source external to the agreement itself.

It may be observed that the term in that case was a statement on behalf of the vendors and gave the vendors powers to institute a suit to purchase the property (italicised by me). I do not find any such condition in the present case, and the condition referred to by me above in the present case is absolutely clear and unambiguous. I cannot conceive of any other way in which a deposit can be made in the Court, and then a notice issued to the vendees unless the deposit is made u/s 83, T.P. Act.

6. The present case more closely resembles Balkishen Das v. Legge 27 I.A. 58 where Lord Davey after referring to the condition in the ikrarnama that if the bankers object to receive the money and relinquish the property the vendor may deposit the amount in the treasury by virtue of this agreement and obtain possession over the ilaka observed at page 68:

This provision at once suggests a reference to Regulation I [1] of 1798 as being in the opinion of the parties applicable to the case. It was not suggested that there was any other statutory provision or practice by which such deposit could be made by virtue of the agreement alone, without the intervention of the Court, in a suit for the purpose, while on the other hand the words exactly describe the procedure under the Regulation.

It may also be observed that in this case the term was that the vendor can deposit the amount in the treasury and obtain possession. This condition is different from the conditions in the document in Jhanda Singh v. Wahiduddin AIR 1916 P.C. 49 where, as already observed, the vendee stipulated that after the deposit into the treasury attached to the Court and after the institution of the suit in Court the vendors can repurchase the property again. It will also be observed that there was no condition in the term of the document of giving a notice to the vendee, suggesting that the parties had not contemplated the provisions of Section 83, T.P. Act.

7. The further condition in the document that the vendor shall repay the consideration also suggests to me that in this case it was not a case of out and out sale. Mr. De argued that the vendor was to pay only the amount of the consideration and not the interests thereupon, and therefore this should be taken to be out and out sale with an option of repurchase. There is some force in this argument but the interest may have been omitted because the vendee was put in possession, and therefore, the transaction is like that of a usufructuary mortgage.

8. For these reasons, I am satisfied that the view taken by the Courts below was incorrect. I would allow the appeal and decree the suit with costs in all the Courts.

Mahabir Prasad J.

I agree.

9. I wish to add just this. Regard being had to the definition of a "mortgage by conditional sale," as given in Section 68(c), T.P. Act, it appears to me that when the transaction is evidenced by one document, as in the present case, the question whether the transaction is a sale with a condition of repurchase can hardly arise. The mortgagor must ostensibly sell the property in, question on any of the three conditions mentioned in Section 58(c) of the Act. One of the conditions is "that on such payment being made the buyer shall transfer the property to the seller." The document must in every case be ostensibly a document of sale. It is for the reason that it has a condition that the property has to be "transferred" to the seller on repayment of the purchase price i.e., the condition of repurchase the document evidencing such a transaction becomes a document of a "mortgage by conditional sale." Apart from other considerations already dealt with by my brother Manohar Lall, the document is completely covered by the definition of a mortgage by conditional sale, and cannot but be held that the transaction evidenced by this document was a mortgage and not a sale.