1. The question raised in this appeal is as to the true construction of a document dated the 26th Jaistha 1308 B.E. The Courts below differed in construing the document, the Court of first instance holding that it was a mortgage by way of conditional sale and the lower Appellate Court being of opinion that it was a deed of out-and-out sale. The document runs in these words 'I have been in the ownership and possession of land fit for erection of shops by right of my purchase within the boundaries mentioned below situated in the line to the north of the road facing westward in Bander Bazar Chak. Now for my own necessity on receipt from you Rs. 400 in cash as the price of that shop land I sell to you the same and I and my descendants cease to have right therein. You from this day being in ownership and possession in these lands, continue to enjoy the same with the rights of transfer by gift and sale, etc. I and my successors cease to have any right thereto. I make over my kobala of purchase dated the 11th Sarvan 1287. Moreover, when I or my heirs would return the purchase price to you and your heirs you shall give up the properties. And I shall get this kobala registered within the period of limitation.' There is a further stipulation in the document which runs in these words 'Moreover if I pay you back the said price of Rs. 400 then you will without any objection give up the lands sold and return the connected deeds, etc. I shall seek the protection of Court if you do not return the same.' In construing the document in the present case it should be remembered that the transaction was between parties who were Muhammadans and it is well-known that documents are executed by Muhammadans in which they conceal or at least try to conceal the real nature of the transaction and attempt to make out that the transaction is an out-and-out sale, although, as a matter of fact, the intention of the parties was to create a mortgage. The learned Subordinate Judge was of opinion that the deed was one of out-and-out sale. He relied upon certain pieces of evidence which is evidence relating to the subsequent conduct of the parties themselves as showing their intention. This evidence has been laid down by the Judicial Committee in the case of Maung Kyin v. Ma Shwe La 42 Ind. Cas. 642 : 27 C.L.J. 175 : 22 C.W.N. 257 : 15 A.L.J. 825 : 33 M.L.J. 648 : 3 P.L.W. 185 : 6 L.W. 777 : 23 M.L.T. 36 : 20 Bom. L.R. 278 : (1918) M.W.N. 300 : 45 C. 320 : 9 L.B.R. 114 : 11 Bur. L.T. 21 : 44 I.A. 236 (P.C.) as not admissible in a case where no third parties are involved or no question of fraud arises. In order to construe the document intrinsic evidence afforded by the terms of the document has to be taken into consideration and the Court has also to take into consideration the facts which may legitimately be proved with a view to showing in what manner the language of the document was related to the existing facts and may also refer to the contrast between the value of the property and the consideration that passed in money. These principles have been laid down by this Court in the case of Abdul Gaffur v. Jamal 21 Ind. Cas. 90 : 18 C.L.J. 228 : 17 C.W.N. 1053 and also by the Judicial Committee in the very recent case of Narsingerji Gyanagerji v. Panuganti Parthasaradhi 82 Ind. Cas. 993 : 40 C.L.J. 481 : (1924) A.I.R. (P. C) 226 : 47 M. 729 : 20 L.W. 701 : 10 O. & A.L.R. 1172 : 47 M L.J. 809 : (1924) M.W.N. 915 : 27 Bom. L.R. 4 : 29 C.W.N. 246 : 51 I.A. 305 : 26 P.L.R. 18 : 23 A.L.J. 161; L.R. 6 A. (P.C.) 41 : 1 C.W.N. 684 (P.C.).
2. So far as the first of these elements is concerned, namely, the adequacy or otherwise of the consideration of the transaction there is no discussion of it in the judgment of the learned Subordinate Judge, while in the judgment of the learned Munsif it appears that the consideration, mentioned in the document was Rs. 400 whereas the executant of the document had purchased it for Rs. 600 long before the date of the document in question. This clearly shows that the consideration was wholly inadequate. It was certainly one of the matters to be taken into consideration in determining the real character of the document. The learned Subordinate Judge in dealing with this question has referred to the decision of this Court in the case of Kamini Kumar Chowdhury v. Latifanissa Chowdhurani 24 C.W.N. clxxv (175). That decision affords us very little assistance inasmuch as we are not in a position to know exactly what the terms of the document in that case were.
3. The learned Subordinate Judge says that the document on the face of it purports to be a kobala, 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 be 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 the Muhammadans 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. The learned Subordinate Judge then goes on to say that there is absence in the document as to certain date within which the money was to be re-paid. This omission, however, would not indicate that the deed was not one of mortgage, as will be seen from the decision of this Court to which I have already referred--the case of Abdul Gaffur v. Jamal 21 Ind. Cas. 90 : 18 C.L.J. 228 : 17 C.W.N. 1053. The document in that case provided that if ever the vendor or his sons or son's sons or other heirs paid up the price the vendee or his sons or his son's son or other heirs would be bound to re-convey the homestead. As was observed by Mr. Justice D. Chatterjee in that case whose decision was upheld on appeal by the Chief Justice Sir Lawrence Jenkins and Mr. Justice Mookerjee that if the term is indefinitely long it should be taken as indicating that an absolute sale was not meant. So the mere absence of the mention of a certain date is no indication as to the real character of the document. Then the learned Subordinate Judge says that there was no mutual agreement in the document for bringing a suit for redemption. But the absence of any reservation to the purchaser of the right to recover his purchase-money of a stipulation authorising the grantor to sue for redemption is not always a safe criterion for the determination of the question. The learned Subordinate Judge says that the executants parted with possession immediately after the execution of the document; but it is usual in such cases to put the mortgagee in possession and set off the rents against the interest.
4. These are all the circumstances upon which reliance has been placed by the Subordinate Judge in arriving at the conclusion that the document was one of out-and-out sale. The learned Subordinate Judge says that the condition as to making over of the property on receipt of the price paid is at best a solatium to the vendor. What probably he means by this finding is that although there is a condition of re-purchase attached to the sale which he thought was the real nature of the transaction that condition could not be given effect to in the absence of specific mention of the date by which the re-purchase was to be made.
5. On the whole I am of opinion that the circumstances upon which the learned Subordinate Judge has relied for coming to this conclusion do not necessarily lead to the conclusion that the document was one of out-and-out sale. On the other hand the inadequacy of the price coupled with the mention in the deed about the need of money on the part of the vendor, and the stipulation as to return of the purchase price to the vendee and the re-conveyance of the property indicate that the document was intended to be one of mortgage by way of conditional sale. I am, therefore, of opinion that the decision of the learned Subordinate Judge with regard to the construction, of this document is not right and that the Munsif arrived at a proper decision on this point.
6. In this view of the matter, in my opinion, the judgment of the learned Subordinate Judge should be set aside and that of the learned Munsif restored with costs of this Court as also of the Court of Appeal below.
7. I agree.