1. The only question in this Letters Patent Appeal is whether the document in question dated 14th February 1910, evidences an out and out sale or whether a mortgage by conditional sale.
2. It appears that the appellant Mt. Mumtaz Begam borrowed a sum of rupees 400 on 2nd October 1905 from two persons Narwar Mal and Kishan Lal. The mortgage was a simple one and carried interest. Five years later the appellant executed the document in question and purported to sell the property in consideration of the loan that was owing by her. It was agreed that if Mumtaz Begam paid the 'money within three years the property would be 'released' (wa guzasht kara lengen). The plaintiff's suit has been dismissed by the Courts below and a learned single Judge of this Court. The first two Courts came to the conclusion that on the true interpretation of the document it was an out and out sale and the condition as to the 'release' of the property on payment within three years did not bring the transaction down to one of a mortgaga by conditional sale. In second appeal the learned single Judge of this Court did not consider the document itself, on the ground that no transaction of the document had bean placed before him. The learned Judge however considered the law on the point, and after a careful consideration of the law came to the conclusion that he had no reason to differ from the finding of the Courts below.
3. The document has been read out to us, and we have carefully gone into the language of the document ourselves. The whole question before the learned single Judge was whether the document expressed a transaction of sale or a transaction of a mortgage. The answer to the question can properly be given by a consideration of the language alone and possibly in conjunction with certain circumstances. But if the document was not to be looked into, the only consequence that should have followed was a dismissal of the appeal on the sole ground that the transaction of the document had not been placed before the learned single Judge; but as the learned single Judge has gone into the case, we feel that we are justified in looking at the document itself. If the learned Judge had dismissed the appeal on the sole ground that a translation of the document had not been placed before him, as required by the rule, probably we would not have been in a position to say that the learned Judge was wrong and that we should be prepared to. hear an appeal against his judgment. But, as already stated, the case has been heard on the merits, we feel we are bound to look into the document itself.
4. We find that the vendor and the vendee were already in the position of a borrower and a lender. A mortgage was created on the security of the property itself, and at the date of the ostensible sale deed there was a loan due from Mumtaz Begam to the vendee Nawar Mal and Kishan Lal. This was a circumstance which strongly pointed to a further mortgage being made on the property, to secure the interest payable to the lenders on the one hand, and a right of redemption on the other. The fact that Narwar Mal and Kishan Lal agreed to allow a release (wa guzasht) if they were paid within three years, would go to indicate that the transaction was meant to be a security for the money due to Narwar Mal and Kishan Lal. The use of the word 'release' indicates that the' property was regarded as being under a sort of restraint that is to say was a security. The transaction falls within the language Section 58 (c) T. P. Act. The new amendment which has come, into force since 1st April 1930 does not stand in the way of the appellants' success. The term of ''re-sale' or 'release' is to be found in the document itself, and therefore the right of redemption, if there be any, is not lost. On a consideration of the entire document we are of opinion that it was a case of mortgage and not of an out and out sale.
5. In the result, we allow the appeal, set aside the judgment of this Court and the decrees of the Courts below and make a decree for redemption in favour of the appellant on condition of payment of Rs. 500 within six months of this date. A decree under Order 34, Rule 7, Civil P. C, will be prepared with six months' time for redemption. In the circumstances of the case we direct that the parties shall pay their own costs throughout.