BHOJU MANDAL versus DEBNATH BHAGAT

Citation: [1963] SUPP. 2 S.C.R. 82 · Decided: 14-11-1962 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Dismissed

Judgment (excerpt)

1!162 
Nt111d,,, Jf, 
82 
SUPREME COURT REPORTS[1963] SUPP 
BHOJU MANDAL 
v. 
DEBNATH BHAGAT 
(S. J. IMAM, K. SuBBA RAo and J. R. 
MuDHOLKAR, .U.) 
Construction of Document-Mot1gage by cmulitional Bilk--
Sale with a condition of repurclia~e-Disti'.nction-lmenti1»1 of 
partieB-Relevant circum'!/an~. 
The High Court in dismissing the suit for redemption 
brought by the appell,.nt in reversal of the decisions of the 
courts below held that the document on which the suit was 
based was one of sale and not a mortgage by conditional sale. 
It was executed to meet pressing demands and not merely to 
discharge a previous mortgage in favour of the respondent. It 
provided that in case of defect of title and consequent disposses-
sion of the . vendecs, the executants would remain bound to 
refund the consideration with interest which would be a charge 
on the property and that the executant would pay the rent 
for a short period after the execution. The document described 
itself.as "tamashuk sarti kebala". The total area of the land 
mortgaged to the respondent in the previous year was 13.17 
acres and the amount a(lvanced was Rs. I ,600/·· Only a year 
thereafter 12.6 acres out of the aforesaid area were transferred 
for Rs. 2,800/- to the respondents who were put in posoession. 
There was no 'dispute \hat the latt~r amount represented the 
real value of the land. 
Held, that there is a clear distinction between a mortgagee 
by conditional sale and a sale with a condition of repurchase. 
The former is a mortg'gee and the right to redeem remains 
with the debtor. Th< latter is ar.. out and out sale by which 
by the owner divest air his rights to the property, reserving a 
right of repurchase. 
The question to which category a docu-
ment belongs can be decided only by ascertaining the intention 
of the parties on a consideration of the document and other 
relevant circumstances. 
Decided cases are only illustrative 
and not exhaustive. 
In the instant case, the cumulative efi'ect of the terms of 
the document and the surrounding circumstances left no manner 
of doubt that the document in ')Ucstion was not a mortgage but 
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2 S.C.R. 
SUPREME COURT REPORTS 
83 
a sale with the condition of repurchase. Whatever ambiguity 
there might be in the document, the crucial circumstance that 
smaller area of the ,land was sold for a higher amount in 
discharge of an earlier mortgage of a large area for a smaller 
amount, left no doubt as to ihe real character of the document. 
Pandit Chunchun .Iha v. Sheikh Ebada/. Ali [1955] I S.C.R. 
174, distinguished. 
A decision on the construction of a document can hardly 
afford any guidance for ascertaining the intention of the 
parties in another unless the terms used are exactly similar. 
ClvIL APPELLATE juRtSDIOTION : Civil Appeal 
No. 204of1960. 
Appeal by special leave from the judgment and 
decree dated March 31, 1958 of the Patna High 
Court in Appeal from Appellate Decree No. 582 of 
1954. 
Jagadish Chandra Sinha and R. R.' Biswas, 
for the Appellants. 
Bhawani Lal and P. C. Agarwala, for Respon-
dents Nos. l to 16. 
1962. November 14. The Judgment of the 
Court was delivered by 
SuBBA RAO, J.-The only question in this 
appeal is whether the suit document is a mortgage 
by conditional sale or a sale·with a condition of re-
purchase. 
The fa<:ts that gave rise to this appeal may be 
briefly stated : On February 2, 1924, the appellants 
1 & 2, their father late Matooki Manda) and their 
uncle late Lila l\fandal executed a deed purporting 
to ccinvey a property of the extent of 12.6 acres in 
favour of respondents 1 & 2 for a consideration of 
Rs. 2,800/- and pat them in ~on 
of the same. 
In 1950 the appellants institu~ tide suit No. 73 of 
}91/Z 
BJr.J• M0.'41 
. •. 
DtbMth Bh•.(• I 
Subbo RGo, J. 
lff2 
llAojw M-1 
v. 
/M,..tllU1•1 
&.hl• llM, J. 
84-
SUPREME COURT REPORTS [1963] SUPP. 
1950 in the Court of the Munsif, 1st Court, Bhagal-
pur, Bihar for redemption on the ground that the said 
document was a mortgage by conditional sale. The 
contesting defendants i. c., respondents l & 2 pleaded 
that the said document was not a mortgage but an out 
and out sale and therefore the suit for redeemption was 
not maintainable. The Munsif and on appeal the Sub· 
ordinate .Judge, Bhagalpur, accepted the contention 
of the appellant and decreed the suit but on second 
appeal the High Court held that the document was 
a sale and on that finding the appeal was allowed 
and the suit was 

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