M. Hidayatullah, C.J.
1. This appeal under the Letters Patent is against the Judgment of Kotval J, in second appeal No. 371 of 1950 dated 16th March 1956 and with the leave of the learned Single Judge.
2. The appellant filed a suit for redemption of a mortgage (Ext. P-1) executed on 14th December 1927. By that document a house was conditionally sold to the respondent and it was one of the terms in the document that within six years if the consideration was repaid the property would be reconveyed to the vendor. After the expiry of the six years' period, on 16th December 1933, the defendant-respondent served a notice upon the vendor saying that inasmuch as the stipulated condition of repurchase had been broken, the vendee had become full owner of the property and no right was outstanding in the vendor. As a result of this notice, it appears that parties negotiated further and on 1st February 1935 the vendee paid a further sum of Rs. 100/- to the vendor in lieu whereof the vendor relinquished all rights in the property in favour of the vendee. That document was not registered. All along the vendee was in possession,
3. The contention of the vendor was that the document (Ex. P-1) was a mortgage and the equity of redemption was never relinquished by him. All that he had relinquished was the option of repurchase which had been reserved by him at the time he entered into this agreement of conditional sale. All the three Courts--including the learned Single Judge--decided against his contention and his suit was ordered to be dismissed by all the three Courts. In this appeal the same contention is raised.
4. Shri Dube on behalf of the appellant contends that the document in question (Ex. D-4) of 1st Feburary 1935 was unregistered and that being unregistered and being in respect of property above Rs. 100/- in value it did not serve to extinguish the right of redemption of the vendor. He contends that the terms of that document cannot be looked into and that even if read all that the appellant surrendered was his option of repurchase and not his right of redemption. He relied upon a number of rulings which however do not apply to the facts of this case.
5. Under the first proviso in Section 60 of the Transfer of Property Act the right of redemption gets extinguished by act of parties. The transaction dated 1st February 1935 can easily be interpreted as an act of parties. The question is only whether by that document the vendor gave up his right of redemption unequivocally. It was contended that on the former view of such composite documents the vendor must have felt that he was entitled only to a right of repurchase and not to a right of redemption and that that being the state of the law he cannot now be deemed to have given up what the parties did not contemplate existed.
The intention of the writer of Ex, D-4 is thusinterpreted on the strength of the interpretation of such documents given by Courts in or about the year 1935. It has now been ruled by the Supreme Court as well as this Court that where a condition of repurchase is incorporated in the same document, then at least after 1929 there a presumption to start with that the document is one of mortgage unless the mortgage is expressly excluded or, in the case of an ambiguous document, it can be proved that no mortgage was intended. The relationship of creditor and debtor is apparent in Ext. P-1. In other words, the document cannot but be interpreted as one evidencing a mortgage and not a sale coupled with an option of repurchase.
6. Whether or not the parties understood it to be a mortgage, the terms of Ext. D-4 are quite dear. By that document the vendor not only gave up his option of repurchase but went further and stated that from that day he had no right of any kind over the said house. In the presence of sucha general abandonment of all rights and claims to the property, the vendor must be deemed to have given up whatever rights he had and those would include not only the rights of which he was aware but also the rights which were in existence.
In Seth Gokuldass Gopuldass v. Murli, 5 Ind App 78 (PC), it was held by their Lordships of the Privy Council that a mistaken view of the law on the part of the parties as to their rights is still a mistake of law and is not covered by Section 20 of the Indian Contract Act. The attempt of the appellant is to convert it into a mistake of fact. If he was mistaken in the extent of his rights, that is a mistake of law and does not save him.
When he unconditionally surrendered to the other party all his outstanding rights in the property he cannot now be heard to say that he parted only with one such right and not the other of which he was not then aware. In our opinion, the document by the general surrender of all the rights in the property must be deemed to be act of parties extinguishing the right of redemption and sufficient for the application of the proviso to Section 60 of, the Transfer of Property Act
7. As regards the question that the document is unregistered, the learned Single Judge relied upon the doctrine of part performance. It is obvious enough that Rs. 100/- were paid, as also the document was signed by the party relinquishing the rights in the property. It is also an admitted fact that the mortgagee vendee is and has been in possession of the property. All the ingredients necessary for the application of Section 53A of the Transfer of Property Act were therefore existing in the case and the learned Single Judge was not in error in relying upon that provision.
8. We see no reason to interfere. The appealfails and is dismissed with costs.