LexPANDIT CHUNCHUN JHA versus SHEIKH EBADAT ALI AND ANOTHER
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
1954
. .Af. K. Gopalan
~!Id
Another
v.
The State of
Madhya Pradesh
Jagannadhadas J.
1954
April 14.
1'74
[l?55]
to issue the necessary. notifiqtjon .. and
h~ve ... dle case
transferred. In view of that statemep.t, it is unneces-
sary to. pronounce pn the obje~tion sg raised. .
.
In the result, all the. points .raised on behalf of the
petitioners fail, and. this petition must be dismissed.
It is desirable to observe that the questions above
dealt with appear to have been raised before the High
Court at previous stages ·by 'means of appliqtions urider
article 226
and decided . against. . No appeals. to this
Court have been taken
against the orders therein.
Nothing that we have said is . intended to be a pro-
nouncement as to ·the correctness or otherwise of those
orders,
J,10r to encourage the practice ·of direct approach
to this Court (except for good reasons) in matters which
have been taken \o the High Court and fou.nd. against,
without obtaining leave· to appeal ther.efrom. ·
Petition dismissed.
PANDIT CHUNCHUN JHA
tJ.
SHEIKH EBADAT ALI AND ANOTHER.
[MuKHERJEA, VIV!AN BosE, GHULAM I{AsAN and
.VENKATARAMA AvvAR JJ.J
Transfer of Property Act (Act IV of 1882)-Section 58(c) as
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amended by Act XX of .J929-,Document-Whether a mortgage or
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sale outright-Principles. for determining whether the
document is
one or the other.
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The.re is 1?-C? hard and fast" rule for de~ermining )Vhether a given
transaction is a mortgage by coh_ditional sale Or sale outright with
a con_dition for- repUrchase.
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:Each case must be dCcided On its
own facts.
The numerous
decisions of the High Courts on the point are of no help because
two documents are seldom expressed in identical -terms.
The intention of the parties is the determining. factor but the
intention must be _gathered from the document itself which has to
be construed to find out the legal effect of the word~ used by the
parties.
If the . words are express and clear, effe~t must be given to
them and any extraneous enquiry into what was thought or
in-
te.nded is ruled <.>ut.
If ho¥,rever there is ambiguity. in the language k
employed- then it is Permissible to look to the surrouflding circum-
stances to determine what was inten·ded.
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.s~C.R.
'SUPREME COURT.• REPORTS
f75
. In view of the provisions of the• amended section 58( c) .of the
Transfe{ of. Property .Ac_t, if' the sale _and agreemc::nq to repmchase
are .. embodied in separate, doc.um,ents, then ·_the ,tr~nsa\tion cannot
be a mortgage whether_· ilie . docijments
are. cont~inpor~neously
executed or not. But the niete fact that there is ·ohly one docu-
ment · does not necessarilv' mean that ·it' must ·be ·a 'mortage and
cannot be a sale. If, the ·condition of repurchase in:mbodied in . the
document that effects or purports · to effect the sale,.. then it . is a
matter for construction which was ,meant.
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Balkishen Das v. Legge .(27 I.A. 58), . Alderson y.: White. ( 44
E.R. <)42 at· 928), Bhagwan. Sahai v. Bflagwan Din (17, I.A. 98 at
102), and/handa Singh v. Wahid-ud-din (43 I.A. 284 a·t 293) re-
ferred to.
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CIVIL
APPELLATE
No. 98 of 1953.
.,
JuRISDICTION : Civil
Appeal
Appeal by Special Leave . from the .. Judgmen,~ and
.Decree dated the 27th
day of
January, 1949, ,of the
.High Court of Judicature at
Patna in Appeal .. from
Appellate Decree -No •. 690 of. 1947 against the Pecree
dated . the 13th January, 1947, of the Court of. the
District Judge, Bhagalpur, in Title Appeal No . .161 .of
1946 arising out of the
Judgment .and .Decree
dated
the 25th July, 1946, of the Court of· the lSt .·Additional
Subordinate Judge, · Bhagalpur, in Title Suit' No. 80
of 1945; ·
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N. C. Chatterjee, (A. N. Sinha and :S,, P. Verma,
with him) for the appellant.
. Murtaza Faz/ Ali and Rajinder Narain, for respond-
ent No. 1.
1954.
April 14. The Judgment· of the Court was
delivered by
BosE J.-This is a plaintiff's appeal in a suit for
re-
demption of what the plaintiff calls a mortgage . dated
15th April, 1930. The •only question for determination
is whether this is a mortgage by conditional sale · or a
sale out and out with. a condition' of repurchase;
If the
former the plaintiff succeeds. · If the latter he is· out of
Court.
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The property • covered by· the disputed deed belonged
to
one
Bijai Tanti who died leaving a widow Mst.
Phaguni and two sons Siban Tanfr and ChandExcerpt shown. Read the full judgment & AI analysis in Lexace.