1. This is an appeal from a decision of the Additional Subordinate Judge of Chittagong, dated 19th September 1929, whereby he reversed the decision of the Munsif, 3rd Court, Patiya, dated 5th September 1927. The suit, out of which this matter arises, was instituted on 20th December 1926, and the plaintiffs were claiming to redeem certain lands, originally held by their predecessor in kayemi raiyati right. The plaintiffs claimed to redeem those lands upon the allegation that they were mortgaged by the plaintiff's predecessor-in-title to one Ashkar Ali on 23rd Jaistha 1260 M.E., corresponding to 5th June 1898. The defendant asserted that he had been continuously in occupation of the lands in question from the date just mentioned up to the time of the institution of the suit on 20th December 1926. The real defence to the plaintiffs' claim was that the document dated 23rd Jaistha 1260, was in law not a mortgage but was a deed of sale by which the lands therein referred to were sold, but subject to re-purchase, the condition of such re-purchase, being if the transferor repaid the sum stated to be the price together with an equal amount of profit within a period of eight years from the date of the document then he would be entitled to get back the lands transferred by him. The plaintiff's were ready and willing to pay to the defendant an amount equal to the principal sum and an equal amount by way of profit in order to redeem the lands from the defendant.
2. The only question which arises for determination in this appeal is the short point whether or not the document of 23rd Jaishtha 1260 was a mortgage by way of conditional sale or was an out and out sale. It is admitted by the defendant that if that document is a mortgage, then the plaintiffs have not lost their right to redeem the lands and that they are entitled to succeed in their suit. On the other hand, if the document effected an out and out sale of the lands then the plaintiffs long since lost their right to buy back the lands, and their suit fails. The question whether a document of this character is a mortgage or an out and out sale has to be determined mainly with reference to the terms of the document itself. Lord Davey in giving the judgment of their Lordships of the Judicial Committee of the Privy Council in the case of Balkishen Das v. Legge (1899) 22 All 149 said with reference to a matter of this kind:
The case must therefore be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts.
3. In the present case it appears that the plaintiffs sought to support their contention that the document of 23rd Jaistha 1260 was really a mortgage, by referring to statements in a petition which had been put forward in connexion with certain execution cases by the defendant, in which the defendant had described the document with which we are now concerned as kat-kabala. In my opinion, however, as the filing of that petition was an event which occurred some time subsequent to the execution of the document, it is not a matter which falls within the latter part of the proposition laid down by Lord Davey and accordingly that petition ought not to be taken into account one way or the other for the purpose of deciding the point at issue between the parties in the present proceedings. It is to be observed, from the dates which I have already mentioned that some 28 years had elapsed from the time when the bargain was made between the parties to the time when the present suit was instituted and therefore in endeavouring to construe the terms of the document, one must bear in mind the observations of Lord Cranworth, L.C, in the well-known case of Alderson v. White (1858) 2 DEG & J 97 where he said:
What is there to show that it (that is to say the document then under consideration) was intended to be a mere mortgage? I think that the Court, after a lapse of 30 years, ought to require cogent evidence to induce it to hold that an instrument is not what it purports to be, and I see but little evidence to that effect here.
4. That passage in the judgment of the Lord Chancellor has been quoted in a number of cases since and always with approval, notably by Lord Atkinson in the judgment of the Judicial Committee of the Privy Council in the case of Jhanda Singh v. Wahiduddin AIR 1916 PC 49. The same passage had previously been referred to by Sir Barnes Peacock in giving the judgment of the Judicial Committee of the Privy Council in the case of Bhagwan Sahai v. Bhagwan Din (1890) 12 All 387. Owing to the lapse of time in the present case, I think one is bound very carefully to scrutinize the actual provisions of the document of 23rd Jaistha 1260 before approving the judgment of the learned Subordinate Judge of Chittagong, who came to the conclusion that the view taken by the learned Munsif that the transaction was an out and out sale was not correct and that the transfer was really by way of mortgage. There is another important passage in the judgment of Lord Cranworth in Alderson v. White (1858) 2 DEG & J 97, which also has been relied upon in subsequent cases where a point similar to the present one was under consideration. That passage is in the following terms:
The rule of law on this subject is one dictated by commonsense that prima facie an absolute conveyance, containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase. In every such case the question is, what, upon a fair construction, is the meaning of the instrument?
5. In order to decide what is the meaning of the instrument now before me, one must therefore look at the precise terms of the document itself. They are as follows:
This kabala for absolute sale of lands and rent sheweth: 'I possess, separately, in kayemi raiyati right the lands measuring 1 kani 4 gandas and 2 karhas, at an annual rent of Rs. 2-15-0 in proportion to my share, out of the total lands and rents described below with details regarding mauza, mehal, dags, etc. Now, owing to my necessity, for clearing up my debts, I sell the said lands absolutely to you at the price of Rs. 44. You, being possessor in my right and title, continue to enjoy and possess the said lands in succession of sons and grandsons downwards, with all its tenements and hereditaments. On no occasions, I or my successors-in-interest should claim or have the right to claim the said lands; if such a claim is ever made, it will be disallowed. If ever there be any impediments to your purchase or possession, then you shall be able to realize the principal amount and an equal amount of profits with costs and interest at the rate of one anna per rupee per month from me personally and from my movable and immovable properties-calculating the date of the cause of action from the date of your dispossession. I have not created any charge on the said lands, etc., by any deed in favour of anybody; if the creation of any such charge be proved, then I shall be liable to be prosecuted under the Penal Code. Be it known that if the said principal amount and the equal amount of profit be paid to you within the period of eight years, then you shall return back the said lands with this kabala. Under these terms I execute this absolute sale-deed'.
6. It is to be observed that the document begins with the words:
This kabala for absolute sale of land and rent sheweth.
7. The document therefore at the outset purports to be a deed of sale and also to sell absolutely the lands described in it at the price of Rs. 44. The transferee is not only to be the possessor in the right and title of the transferor, but is to continue to enjoy and possess the lands in succession of sons and grandsons downwards, but on no occasion shall the transferee or his successors-in-interest claim or have the right to claim the said lands and, if such a claim is ever made, it is to be disallowed. It seems to me therefore that, on the face of this document, it is an absolute sale of the lands described therein and that it operated as a transfer of the property in those lands to the present defendant immediately upon the execution of the document. The learned Subordinate Judge has been greatly influenced by the fact that in the margin of the document there is a writing in these terms 'kat-kabala: lands. 1 kani 4 gandas 2 karhas, amount-Rs. 44.' The learned Subordinate Judge, contrary to the view of the Court of first instance, came to the conclusion that endorsement on the document must have been put there by or with the knowledge and assent of the defendant and therefore afforded some indication that the parties themselves intended the document to operate as a mortgage by conditional sale. The appellate Court below seems to have placed more reliance on the presence of the expression kat-kabala in the margin of the document than on the presence of the word kabala in the body of the document itself. Whereas, on the other hand, the learned Munsif said:
The words 'kabala of sale' are very significant and had the transaction been really a mortgage there was no bar in writing the words 'deed of conditional sale' in place of 'kabala of sale'
8. In passing, I may point out that it seems that, in its origin, the expression kat-kabala meant no more than a conditional agreement or any deed of conditional sale stipulating that if by a certain date the purchase price or money advanced be not paid, then the sale would become absolute: see 'Wilson's Glossary, p. 267. It seems clear that originally the expression was not used as necessarily meaning a mortgage. Mr. Sen, on behalf of the defendant-appellant in this appeal, has drawn my attention to the case of Kinuram Mondol v. Nitye Chand Sirdar (1907) 11 CWN 400, and in particular to a passage in the judgment of Sir Francis Maclean, C.J., at p. 402, where he says:
Let us look at the documents. There can be very little doubt upon the face of the first document that it was an out and out sale. The language of the document is clear, that the defendants did sell the property in question, and they speak of this document as a clear deed of sale divesting all rights for a consideration of Rs. 375, which they say is 'its proper value at the present time.' The purchasers were to become entitled to all the rights of the vendors and to possess and enjoy the property with their 'heirs, sons and grandsons, etc'. This clearly is an out and out sale.
9. Mr. Sen points out that in the present case, the document is not one of the kind where there is a provision that, if the transferor does not repay the price with or without some addition by way of compensation within a certain time, then and in that event, the property will pass to the transferee, which in effect was the situation as regards one of the documents in the case, to which I have just referred. Mr. Sen lays much stress upon the point that, as regards the document in the present case, the effect was that the property passed at the time of its execution and that the provision relating to the getting back of the property was in these words:
If the said principal amount and the equal amount of profit be paid to you within the period of eight years, then you shall return back the said lands with this kabala. Under these terms I execute this absolute sale-deed.
10. Mr. Sen accordingly argues that the property in question passed immediately upon the execution of the document and the transferors had merely the right to get back the property the event of their taking advantage of the condition within the specified period of eight years. Mr. Rakshit on the other hand, on behalf of the plaintiffs-respondents to this appeal, relied upon and emphasised the reasons given by the learned Subordinate Judge in the course of his judgment in support of his view that the transaction was really a mortgage and not an out and out sale. In particular Mr. Rakshit says that the clause in the document, to which I have just referred, is really in favour of the plaintiffs because there is no stipulation in the document providing for a re-conveyance of the land in question. It simply provides that 'you (that is, the transferee) shall return back the said lands with this kabala.' Those words, says Mr. Rakshit, clearly indicate that the transaction was a mortgage, seeing that what the parties agreed to was that if the principal and an equal amount of profit were paid within a period of eight years the transferor would get back the lands and the kabala would be handed over for cancellation. On the whole I think the view put forward by Mr. Sen is correct and moreover I think I ought to give greater weight to the fact that the document is expressed to be a kabala (i.e., a deed of sale) and to the provisions in it indicative of absolute conveyance of the lands, rather than to the other fact already discussed, namely, that in the margin there happens to be the expression 'kat-kabala.' In my opinion, such an endorsement placed outside the actual terms of the documents by no means necessarily stamps the instrument with the character of a mortgage.
11. The expression in any case might be intended to do no more than indicate that the document was a deed of sale with a condition subsequent. The marginal addition cannot be taken conclusively to affect the transaction set forth in the document with all the incidents and implication of a mortgage. The descriptive expression may mean no more than that the kabala contains a condition for re-purchase of the lands described in the kabala on certain terms. I take the view therefore that I ought to pay more attention to what the document itself says than to a mere existence of a descriptive expression on the margin of the document which might have found its way there by some wholly fortuitous circumstances or for some extraneous reason. I do not think that much weight need be given oneway or the other to the fact that the condition for getting back the land by payment of money is expressed by the words 'if the said principal amount and an equal amount of profit be paid,' because it has to be borne in mind that whatever the nature of the transaction was, undoubtedly throughout all the years subsequent to the transfer, the defendant was in possession of the land and enjoyed therefrom all the profits accruing from the use and occupation of it. Mr. Rakshit has argued that because the words used are 'principal amount and an equal amount of profit,' they ought to be read and construed as if they were 'principal amount and interest.' He has sought to explain the particular form of words in the document upon the ground that the parties to the transaction are Mahomedans and so have disguised what is in substance a mortgage in the form of an out and out sale in order not to offend against the religious principles of their community which at one time at any rate were opposed to the lending out of money at interest. In support of this aspect of the matter, Mr. Rakshit cited the case of Mohammed Usman v. Abdul Rahman : AIR1925Cal1151 (at p. 76 of 42 CL J) where Mukerji, J., with the concurrence of Greaves, J., said:
The Subordinate Judge says that the document on the face of it purports to be a kabala, that the word 'sale' is clearly mentioned in the document, and it is also stated in the document that the purchaser, his sons and grandsons are to enjoy the lands and the executant gives up his right and authorises the purchaser to transfer the same by sale or gift, etc. These terms undoubtedly would go to show that the object of the executant was to make out that the document would purport to bo one representing an out and out sale. But that is a matter of very little consequence if we take into consideration the fact that the document was executed between Mahomedans, and even if the real object of the parties was to create a mortgage they might conceal that intention by using terms and expressions of this description.
12. In the same connexion, Lord Atkinson in Jhanda Singh v. Wahiduddin AIR 1916 PC 49 referred to the proposition of law laid down by Lord Cranworth which I have cited and said:
that statement of the law by Lord Cranworth was approved of in Manchester, Sheffield, and Lincolnshire Railway Co. v. North Central Waggon Co. (1888) 13 AC 554.
13. It may not be applicable to transactions governed by the Mahomedan law. Lord Atkinson however went on to say:
It (i e., the statement of law as enunciated by Lord Cranworth) was apparently held applicable by Sir Barnes Peacock, who had vast experience of India and its people, to the case before him. In this particular case Sir Barnes Peacock decided that it was clear that the case was not one of mortgagor and mortgagee, but one of absolute sale with a right to re-purchase within a period of ten years.
14. Lord Atkinson was cf course referring to the judgment of Sir Barnes Peacock in the case of Bhagwan Sahai v. Bhagwan Din (1890) 12 All 387.
15. In the light of that authority, I think that in the present case the learned Subordinate Judge placed too much reliance on the fact that the parties are Mahomedans. In his judgment he said:
The parties are Mahomedans who, in this part of the country, try to conceal the real nature of the transaction in case of mortgages. The wording of the deed shows that they prefer to call interest profit or khesarat or compensation.
16. It seems to me that the learned Subordinate Judge has rather assumed that because the parties are Mahomedans the transaction must therefore be of a different nature from what is apparent on the face of it and accordingly he seeks to explain the use of particular expressions upon that basis. That method of reasoning is however in my view, wrong, because, instead of seeking to construe the terms of the document as they stand for the purpose of ascertaining the effect of the document, it starts with the assumption that the transaction is other than its terms would indicate and then seeks to justify the use of those terms. To use a colloquialism, it is in effect putting the cart before the horse. The fact that the parties are Mahomedans does not really assist the Court to interpret the actual language of the document itself, which after all is really the only matter in a case like this with which the Court is concerned. It seems to me only reasonable to hold that the intention of the parties must be deduced from the language in which the document is couched and not by reference to the particular religious beliefs or ethical doctrines of the persons using them.
17. The other point raised by Mr. Rakshit that the document contains no express provision for the reconveyance of the property but only for the return of the deed and the giving up of possession of the land also seems to have had considerable weight with the Subordinate Judge. As regards this point Mr. Sen referred to the case of Ayyavayyar v. Rahimansa (1890) 14 Mad 170. In that case A, having previously hypothecated certain land to B, executed a conveyance of it to him in 1873 for a consideration which was now found to have been an inadequate price. On the same day, B executed to A a 'counter document,' by which he covenanted to re-convey the land and return the sale-deed, if the sale amount were repaid to him in cash on 27th May 1875. The documents contained no provision as to interest and reserved no power for the purchaser to recover his purchase money. In 1888 A's representative, alleging that the transaction evidenced by the above documents was a mortgage, brought a suit to redeem it. It was held by the Court, consisting of Sir Arthur Collins and Shephard, J., that the transaction did not constitute a mortgage and that the plaintiff was not entitled to redeem. In giving judgment the Court said:
Having regard to the language used in the two instruments, dated 17th January 1878, we think there can be no doubt that a sale with a condition for re-purchase on the date specified was intended. The absence of reference to reconveyance does not appear to us to be important, and there are certainly no words positively indicating that a mortgage was intended. There is no mention of interest and no power is reserved to the purchaser to recover his purchase money.
18. That judgment indicates that the Court was of opinion that the absence of a provision for reconveyance was not a decisive factor.
19. In the present case, neither of the Courts below came to any definite finding upon another matter which might have been of some importance in the determination of the case, namely whether or not the price of Rs. 44, which was paid, was adequate. Therefore the question of the consideration for the execution of this document cannot affect the determination of the case one way or the other.
20. I can only decide this case therefore upon an examination of the actual terms of the document. Bearing in mind the principles already set forth, I come to the conclusion that I ought to hold that the intention of the parties was that the transfer would be in the nature of an out and out sale with a right reserved to the vendor to re purchase the land on the terms stated, at any time within a period of eight years from the date of the execution.
21. It follows therefore that this appeal is allowed. The judgment of the Subordinate Judge is set aside and that of the Munsif restored. The defendant is entitled to his costs of this appeal. I make no order as to costs in the Courts below.