1. I have listened with pleasure to the clear and forcible argument of Mr. Desai to induce me to come to the conclusion that in this appeal there is a question of law on which the lower appellate Court has given a wrong decision.
2. The question is, whether the document, Exhibit 97, dated March 17, 1917, is a sale out and out, or whether it cornea within the terms of Section 58, Clause (c), of the Transfer of Property Act, 1882, and is to be treated as a mortgage by conditional sale.
3. The question arises in a suit for possession, brought on November 25, 1926, nine years and eight months after the document in question was executed. The defendant, the executant of the deed, resists the suit for possession, alleging that there was only a mortgage intended.
4. The terms of the deed are to the effect, that the transferee should take possession from the date of the deed : the consideration for the deed was a sum of Rs. 3000, which was the sum at which the transferor's indebtedness was fixed, and which sum was to be taken as being paid in full satisfaction of a decree obtained by the transferee against the transferor. It is stated that the transferor and his heirs or executors have no right whatsoever left in the property and that from the date of the document the transferee and the first defendant are absolute owners. Then a description of the property is given, and it is provided as follows :
All these are given into your possession today. I requested you to sell these back to me, if 1 would pay Rs. 3,000 within four years from this day. You have consented. But if I fail to give the amount within this fixed period of four years only, I will have absolutely no right, on any account, to ask you for a resale to me. Thus the sale deed given in writing with my free will and consent.
5. It will be observed that in accordance with the terms of the contract there was an agreement that the property was to be retransferred to the transferor if the amount was paid within four years. This condition of re-transfer is not denied by the transferee. But, as the suit is brought more than nine years after the date of the document, it is contended that whatever right there was of obtaining a re-transfer has now lapsed. The defendant's contention, on the other hand, is that this right of obtaining a re-transfer is to be prolonged to the period to which it would be prolonged if the deed is taken as a deed of mortgage.
6. It was strenuously argued before me, especially with reference to the decision in Kasturchand Lakhmaji v.Jakhia Padia I.L.R. (1915) Bom. 74 : 17 Bom. L.R. 928 that this question is a question of law and depends only on the construction of the document. Notwithstanding this argument, I could not help observing that a great portion of the appellant's contentions was directed to induce me to come to the conclusion that the oral evidence in this case had not been considered or properly appreciated by the learned Judge. The circumstances usually connected with transactions similar to that in question are referred to in Kasturchand'scase. They may not always be similar to the circumstances of that case. There the Court felt that all the relevant considerations depended entirely on the construction of documents and on inferences to be drawn from documents so as to make the inferences purely questions of law. In the present case I have no doubt that the question (whether there was a sale or a mortgage) was not one purely of law ; it was not dependent only on the construction of documents or on inferences from the found facts; but the question was dependent on the appreciation of the evidence before the learned Judge.
7. The point which caused a certain amount of hesitation in my mind was the admission of fresh evidence by the learned District Judge in appeal. In his order he states that after hearing the arguments on both sides and going through the papers it appeared to him that the evidence of D.B. Patwardhan was likely to throw some light on the nature of Exhibit 97, and he ordered that this witness should be called as a Court witness.
8. The learned Judge has not referred to the terms of Order XLI, Rule 27, under which provision of the Civil Procedure Code the order, I presume, had been made. In view of the exceptional nature of the power given under Rule 27, and in view of the specific provisions that the Court shall record the reasons for exercising the power under this rule, shall specify the points to which the evidence is to be confined, and shall record on its proceedings the points so specified (Rules 27 and 29), and in view of the remarks of the Privy Council in several cases beginning with KeasowjiIssur v. Great Indian Peninsula Railway (1907) L.R 34 IndAp 115 : 9 Bom. I.R. 671 which have been recently again referred to by the Privy Council in Parshottam v. Lal Mohar : (1931)33BOMLR1015 it is extremely desirable that when the Court exercisesitspower under Order XLI, Rule 27, it should make a direct reference to the rule, giving its reasons in such a form that there is no room for doubt that the Court has realised the exceptional nature of the powers that it is exercising.
9. In the present case, the order has been vigorously attacked before me. The grounds of attack were of a general nature, mainly dependent on the consideration why the powers under Order XLI, Rule 27, should be very sparingly brought into operation. It has been objected,-and with good ground,-that the result of the exercise of this power in the present case has been that the learned appellate Judge has paid undue attention to evidence adduced before himself: that instead of directing his attention to the whole of the evidence including the evidence adduced in the Court of the first instance, he seems to have altogether overlooked the evidence previously adduced, though prima facie the evidence originally adduced would (at least in the eyes of the parties) be more important than such evidence as had been admitted for the purpose of filling in a lacuna discovered by the appellate Court. This error, into which the Court is apt to fall, was strikingly illustrated by the leading case of Kessowji v. Great Indian Peninsula Railway. It was strenuously argued that the learned Judge in the present case has made himself open to the same charge, and that it is necessary to remand the case for reconsideration of the evidence, not only the evidence that the learned Judge himself took, but the evidence that was already on the record. After considering,' however, the whole of the judgment and all the materials on which the decision is given, I feel that there is no necessity for prolonging the litigation any further.
10. Out of respect to the careful argument addressed to me, I shall recapitulate the circumstances that were referred to in the argument as the circumstances on which the decision should have proceeded. It will be unnecessary for me to do more in order to show that the question is dependent on the appreciation of the evidence-a question of fact within the province of the lower appellate Court. It was pointed out that the property was situated at a distance from the place where the transferee was residing-sixty miles away; that the transferor continued to be in possession ; that the purchase was for Rs. 3,000 when a debt of Rs. 6,000 was due from the transferor to the transferee; that this showed that the relation of debtor and creditor existed between the parties prior to the deed ; that it must be presumed that the relation continued after the document had been entered into; that there were other debtors besides the transferor. Then there are letters, Exhibits 78, 79, 80, 81, and 83, in which the transferee asks for payment from the transferor. It was argued that these letters show that the transferee considered himself to be the creditor of the transferor, and not the owner of the property. Then there was the fact that the kabuliyat for possession was to be retained by the transferor; and my attention was drawn to the new proviso to a 58, Clause (c), of the Transfer of Property Act, which makes a distinction between a document that embodies the conditions referred to and a document in which the conditions are not embodied.
11. As I have already indicated, all these matters were considered by the learned Judge who was the Judge of facts, and it is not shown to me that there has been any such error as needs to be corrected in second appeal.
12.The appeal is dismissed with costs.