1. This appeal is by the plaintiff in a suit for redemption of a mortgage bond by way of conditional sale. The mortgage was executed on 23rd November 1905 by one Ananda Chandra De, and the plaintiff has acquired Ananda's interest under a kobala. The first Court decreed the plaintiff's suit, ordering that the plaintiff shall recover possession on payment into Court within seven days of the decree the sum of Rs. 700 which is the amount for which the property was mortgaged. The Court of appeal below reversed the decree of the first Court. Its findings were that the transaction was not a mortgage but an out-and-out sale, and that the plaintiff had acquired no title under his kobala which was not a bona fide deed. The learned Subordinate Judge's ground for holding that the deed which expressly states that it is a mortgage by way of conditional sale is an out-and-out sale, is that the word 'bikrita' which means 'sold' had been written in one part of the document and had been penned through prior to registration. From the fact that the word 'bikrita' had been written in the document even though it had been penned through, the learned Subordinate Judge thought himself justified in saying that the transaction was an out-and-out sale. The learned Subordinate Judge has also treated as good evidence, with regard to the intention of the parties, various statements made by witnesses on the side of the defendants. The learned Subordinate Judge was clearly in error in admitting evidence on the question of the intention of the parties when that intention is clearly expressed in the deed. The finding by the learned Subordinate Judge that the plaintiff had acquired no title and that his deed is not bona fide is not based on anything more than his finding immediately above to the effect that he is not satisfied that the plaintiff had paid anything to Ananda. It is perfectly immaterial whether the plaintiff had paid anything to Ananda or not. It is open to Ananda to make a gift to the plaintiff if he so chose, and the plaintiff is Ananda'a grandson-in-law.
2. It has also been urged on behalf of the respondents that there are two other grounds on which the judgment of the learned Subordinate Judge may be supported. It is contended that according to the term3 of the deed executed by Ananda, the mortgage should be turned into an out-and-out sale on the expiry of six years from the date of the execution of the deed. Such a clause in the mortgage is to be expected in a mortgage by way of conditional sale. In fact if reference is made to Section 58, T.P. Act, it will be found that it is when such a clause exists in the deed or when such other clauses there mentioned, with which we are not concerned, exist that the transaction is a mortgage by way of conditional sale. It has also been urged that on the expiry of six years the mortgagee defendant executed the kabuliyat in favour of the landlord, the date of that kabuliyat being a little over 12 years prior to the institution of the suit. The contention is that the mortgagee by executing a kabuliyat dispossessed the mortgagor and acquired title by adverse possession for more than 12 years. There is no force whatever in this contention. The mortgagee could not dispossess the mortgagor.
3. The appeal is, therefore, allowed, the judgment and decree of the learned Subordinate Judge are set aside and those of the Munsif are restored with costs in this Court and in the Court of appeal below.