Patna High Court
Ram Narain Prasad Singh And Anr. vs Manki Singh And Ors. on 7 July, 1954
Equivalent citations: AIR1954PAT562, 1954(2)BLJR486, AIR 1954 PATNA 562
JUDGMENT Ahmad, J.
1. These two appeals arise from two suits for redemption, both instituted by the same plaintiffs on the basis of two mortgage deeds.
2. The main common point for decision in these two appeals is as to whether between the parties to the transactions parol evidence is admissible to prove that the documents, which on their face appear to be mortgage deeds, constitute documents of absolute sale.
3. Of the two mortgage deeds, one is dated 30-7-19D4, which is exhibit 1 on the record and is the basis of the action in suit No. 169/133 of 1944/1946 corresponding to Second Appeal No. 1255 of 1948, and the other is dated 22-1-1909, which is exhibit 1(a) on the record and is the basis of action in suit No. 170/77 of 1944/1946 corresponding to Second Appeal No. 1258 of 1948. Both these documents were executed by the same person, namely, Megho Tanti. On his death, his heirs and successors, who were impleaded as defendants 3rd party in both the suits sold the equity of redemption along with some other properties for a sum of Rs. 500/- to the common plaintiffs of the two suits by a sale-deed dated 19-4-1944 (exhibit 2).
4. The first mortgage deed dated 30-7-1904, was executed in favour of two persons Kashi Singh, the ancestor of the defendants 1st party, and Ramsahay Singh, the ancestor of defendants 4th party, in suit No. 169/133. This document was executed for a sum of Rs. 150/- and the property covered under the document was 1 bigha and 11 dhurs of the tenancy land in plot No. 184 of khata No. 57. The period of grace given under that document was twenty-one years. The other mortgage deed was also executed in favour of two persons, Ramrup Kumar (defendant No. 11) and Manmohan Kumar, the ancestor of defendants 12 to 14, in suit No. 170/77, who all constituted the second party in that suit. That was for a sum of Rs. 99/- and the property covered by it was 18 kathas and 2 dhurs of the tenancy land in plot No. 13 under the same khata No. 57. The period of grace stipulated in that document was thirty-five years. It is said that Ramsahay Singh, one of the two mortgagees under the mortgage deed, dated 30-7-1904, transferred his interest under that document for a sum of Rs. 100/-, and in the case of the other mortgage deed dated 22-1-1909, all the mortgagees thereunder transferred their interest under that document for a sum of Rs. 1000/- in favour of the common contesting defendants by two sale deeds of the same date, namely, 27-6-1921. The originals of the two sale-deeds have been exhibited as A and A/1 and their certified copies as 3 and 3(a).
5. The tenancy holdings in plot Nos. 184 and 13 are both situate in village Mohammadpur Mani bearing touzi No. 591, which were at the time of the execution of the two mortgage documents in the zamindari of Mahanth of Dularpur.
6. The case of the plaintiffs is that on their purchase of the equity of redemption from the heirs and successors of Megho Tanti they tendered the mortgage money to the defendants but they did not accept it and, therefore, they deposited that amount in court on 27-4-1944, under Section 83, Transfer of Property Act, in Miscellaneous Case No. 140 of 1944. On the service of the notices in that case the transferee defendants asserted that they were not sudbharnadars but purchasers of the properties and hence the plaintiffs instituted the two suits bearing Nos. 169/133 and 170/77, for a declaration that they had a right to redeem the mortgage lands and prayed for a decree of redemption with mesne profits.
7. The suits were substantially contested only by the common transferees under the two sale-deeds dated 27-6-1921, who were impleaded as defendants second party in suit No. 169/133 and as defendants first party in suit No. 170/77, No appearance or written statement was filed in either of the suits on behalf of the defendants third party or on behalf of the defendants fourth party in suit No. 169/133 or even on behalf of defendants first party in suit No. 170/77. The defendants first party in suit No. 169/133, who are the successors of Kashi Singh, the other mortgagee under the document dated 30-7-1904, did no doubt file written statement but subsequently they compromised the matter on 16-12-1946, and, therefore, they also had no interest left in the matter after the compromise.
8. The defence put up by the main contesting defendant was that the mortgage deeds dated 30-7-1904, and 22-1-1909, though in the form of usufructuary mortgages, were in fact documents of sale and that they have been in possession of the land as tenants on mutation of their names in the sherista of the zamindar and on payment of rents for which they received rent receipts in their names. The reasons given by them to explain as to why the documents were written in the form of usufructuary mortgages were that in those days in the zamindari of Mahanth of Dularpur there was no custom of transferability of tenancy holding without the consent of the landlord and hence in order to circumvent that bar tenants selling their lands used to resort to the device of executing sale-deeds in the form of sudbharna deeds as a cloak to hide the real nature of the transactions.
On these allegations the defendants pleaded that the suits should be dismissed.
9. The trial Court on a consideration of the evidence and other circumstances on the record came to the conclusion that-
".....Though there are some circumstances in favour of defendants, they are not so strong to support the case of defendants to prove that the transactions were sale deeds. Hence I hold that the bonds in suit are really sudbharna bonds and they did not operate as sale deeds."
In appeal the Court did not agree with this finding and it held -
".....from the attending circumstances and the conduct of the parties I am thoroughly convinced that Exts. 1 and 1a were out and out sale deeds in garb of sudbharna bonds."
10. The contesting defendants in support of their case firstly relied on two documents, exhibits F1 and G, to prove that there was no custom of transferability of tenancy holding at the relevant time in the zamindari of Mahanth of Dularpur. Exhibit F1 is a decree of a title suit whereby a document of sale was set aside on the ground that the transfer by sale was done without the consent of the landlord. Exhibit G is the certified copy of village note. The entry under heading IX in it reads:
"Custom of sale without Malik's consent is not admitted, But mutations are generally allowed on receiving arrear due from the holding transferred plus Rs. 2/8/- as salami (Rs. 2/- to maliks and 8 as to the patwari). About 30 years ago that there was once a registered deed of sale in village Balapur appertaining to the same touzi as this village was set aside by the High Court when any tenant wants to part with his holding but usually goes to the malik with the intending purchaser and gets the latter name substituted in the malik's sirista on payment of all arrears and salami as stated above."
About these documents the view of the trial Court was, and I think rightly, that though they fully proved that the transfers, which were not infrequent in those days and which could be secured by payment of salami, could only be made with the consent of the landlord but that there was no indication in these documents that mortgage deeds used to be accepted as documents of absolute sale. The Court of appeal, however, on a consideration of these two documents not only came to the conclusion that no transfer was possible in those days without the consent of the landlord, a fact which is not now in dispute, but further held-
"It is, therefore , no wonder that raiyats with a view to escape the harassment of the maliks might have been getting only sudbharna bond executed even in cases where they intended for all practical purposes to take kebala of the land concerned."
This last finding, as it is apparent, is not based on any document but purely on conjecture, which, I need not point out, is not permissible in law.
11. Next the contesting defendants relied upon a series of sudbharna bonds which are exhibits B series. The vendors of these bonds were not examined and therefore the trial Court rightly came to the conclusion that those documents by themselves could not show that they were treated as deeds of sale. Contrary to it, the Court of appeal, however, without giving any cogent reason for its view held, "Exts. B to B4 are similar sudbharna bonds executed in appellants' favour." I must confess that I have failed to understand as to what is meant by the word "similar". Perhaps the Court of appeal meant to say that they also, though in the form of sudbharna bonds, operated as sale-deeds for the simple reason that the period of grace in some of them was 51 years and 60 years and hence they, in its opinion, give support to the case of the defendants. If so, this as well, in my opinion, is based on conjecture and not on any evidence on the record.
12. The third evidence relied upon by the defence was a batch of rent receipts (Exhibits D series). The case pleaded in the written statement is that the sudbharnadars in cases where they were in fact vendees used to get their names recorded in the sherista of the malik on payment of salami soon after the execution of the said sudbharna bonds. In the present case the documents in favour of the contesting defendants were executed in the year 1921 but the mutation of their names in the sherista of the landlord was made in 1336 Fasli, that is, near about 1929. This delay in the opinion of the trial Court was not consistent with the pleading made in the written statement nor was consistent with the conduct of a person who was anxious to show that the bond, though sudbharna in form, was in fact a sale deed, and, therefore, in its opinion this evidence did not support the defence case.
As against that the Court of appeal held, though it conceded that there was no evidence on the record to show that Meghu or his heirs were consenting party to the mutation of the names of the defendants in place of Meghu, that as there was nothing to show that they at any time thereafter objected to the landlord's action, the receipts in the names of the defendants could not be brushed aside. This, in my opinion, is not a correct approach of the proposition. The learned Additional Subordinate Judge, who heard the matter in appeal, should have realised that the onus of proving by parol evidence -- even when permissible in law -- that the document is not what it purports to be is heavily on the person who makes that allegation and not on the other side and that onus becomes still heavier when the challenge is advanced after a long time: -- 'Bishambhar Nath v. Muhammad Ubaidullah Khan', AIR 1923 All 586 (A) and -- 'Sisir Kumar v. Naran Chandra', AIR 1929 Cal 548 (B).
As to the mere payment of rent to the landlord by the defendants, if considered independently of the fact as to who was the person in whose name the receipt was issued, the learned Additional Subordinate Judge should have realised that it was not at all of any importance in the circumstances of the present case. In this connection he was in fact misled by the non-consideration of the facts that in the case of the document dated 22-1-1909, under its very terms the liability for the payment of rent was on the mortgagees and they were, as stipulated therein, to get back the rent paid by them at the time of redemption and that in the case of the other document, though the contract was silent on the point of the liability of the payment of rent, yet in that case also the rent had to be paid by the mortgagees because of the provisions of law in Section 76, Transfer of Property Act. Therefore, in either case, in one under the contract and in the other under law, rent had to be paid by the mortgagees for the lands given in mortgage.
13. Fourthly the case of the defendants was that in those days the sudbharna mortgages used to be of two classes; one which in fact operated as genuine sudbharna bonds and the other which though in the form of sudbharna bonds used to operate as out and out sales. The differences in the two classes of sudbharna bonds, according to the defendants, were to be found in the fact that the period of grace used to be longer and consideration heavier in the case of those sudbharna bonds which operated as sales as compared with those which were genuine sudbharna bonds. On these allegations it was contended that the bonds in dispute in fact constituted sale-deeds as the periods of grace stipulated therein were comparatively long and considerations paid therefor were high.
The trial Court dismissed this part of the case on the" ground that there was no reliable evidence in support of this contention. The defendants did not file any sudbharna bond which could be proved to have operated as a sale-deed. Neither there was any evidence on the record to prove as to what was the rate of price of the lands prevailing in that area at that time and as to what was the normal period of grace generally stipulated in genuine sudbharna bonds in that village in those days. In the absence of evidence on these points, the trial Court concluded and 1 think rightly that no inference could be drawn from them in favour of the allegations set up by the defendants. In coming to this conclusion he was careful to take note of one more important fact -- which has not been considered at all by the Court of appeal -- namely that in para 9 of the written statement in suit No. 170/77 it was specifically stated that the ancestor of the defendants 3rd party had a necessity of taking loan and, therefore, the bond dated 22-1-1909, was executed by him. This averment in the written statement, as held by the trial Court, on the face of it completely negatives the defence case.
In this connection reliance was also placed by the defence on the two sets of sale-deeds, exhibits A series and C series, all in their favour. Exhibits A series, as already stated above, relate to the property in dispute, and they have been cited to show that the considerations shown for the transaction covered by them are higher than the mortgage moneys under the documents dated 30-7-1904, and 22-1-1909. The other set of sale deeds, namely, exhibits C and C(1) are sale, deeds executed by persons, who as it is stated in those documents, held those lands on the basis of sudbharna bonds. They are of the year 1941, The trial Court did not rely much on either of these sets of sale-deeds for the reasons, firstly, that they are documents wherein the executants of the bonds in dispute or their successors-in-interest are not a party to them. They, in its opinion, at best amounted to statement made by third persons for the benefit of the defendants who were the transferees under those documents. Secondly, the trial Court thought that as none of the venders of exhibits C series on of A series were examined in the present case, their statements in those documents are not of any evidentiary value against the plaintiffs.
The Court of appeal, however, thought that the statements made in the two sets of documents, exhibits A series and C series, were of evidentiary value even against the plaintiffs and that they were relevant for finding out the meaning of the documents in dispute though their executants were not examined to prove that the statements made therein were true. I must say that here also the approach made by the Court of appeal was entirely wrong. These statements could not have been used in the circumstances of this case against the plaintiffs or their predecessors-in-interest. Apart from this, the Court of appeal was not justified to hold that the documents in dispute operated as deeds of sale on the ground that the periods of grace stipulated therein were long and heavy. The mere fact that the conditions on which a mortgage! can be redeemed are onerous would not be sufficient to justify a Court in coming to the conclusion that the transaction which purported to be a mortgage was a sale as laid down in the case of -- 'Muhammad Qasim v. Sheo Ling Swarm", AIR; 1916 All 153 (C).
14. This survey of the entire discussion on the evidence by the two Courts clearly demonstrates that the Court of appeal in reversing the conclusion arrived at by the trial Court erred in many respects and the finding given by the Court of appeal is partly based on conjecture and partly on a wrong application of law. It is as such perverse and not of a character which can be said to be binding on this Court in second appeal. I have myself carefully gone through the evidence and in my opinion the parol evidence on the record even if held to be admissible in law in the present case cannot lead to the conclusion that the parties to the two mortgage deeds in dispute intended them to operate as deeds of sale.
15. The matter, however, does not end there. It has been strongly contended by Mr. Lal Narayan Sinha appearing for the appellants that the Court was completely wrong in relying at all on parol evidence in this case to come to the conclusion that the documents in dispute, though on their face mortgage deeds, were in fact documents of sale. In support of this contention reliance was placed by him on a number of authorities laid down in the cases of -- 'Balkishen Das v. W.F. Legge', 22 All 149 (D); -- 'Achutaramaraju v. Subbaraju', 25 Mad 7 (E); -- 'Dattoo Totaram v. Ram Chandra', 30 Bom 119 (F); -- 'Maung Kyin v. Ma Shwe Lal', AIR 1917 PC 207 (G); -- 'Mian Feroz Sha v. Sohbat Khan', AIR 1933 PC 178 (H); and -- 'Baraboni Coal Concern Ltd. v. Gokhula-nanda Mohanta', AIR 1934 PC 58 (I). All these cases turn on the interpretation of the rule of evidence laid down in Section 92, Evidence Act. The main body of that section reads:
"When the terms of any such contract, grant or other disposition of property, or any matter re quired by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:"
Along with it there are six provisos attached to it. The case of the defendants is that the term of proviso (6) is applicable to the facts of the present case and to give support to the argument following cases were cited on their behalf -- 'Mt. Hanif-un-Nisa v. Mt. Faiz-un-Nisa', 15 Cal WN 521 (J); -- 'Baijnath Singh v. Hajee Vally Mohomed', AIR 1925 PC 75 (K); AIR 1917 PC 207 (G); -- 'Abdul Goffur v. Jamal', 18 Cal LJ 228 (L); -- 'Narsingerji Jyanagerji v. P. Partha-saradhi Rayanim', AIR 1924 PC 226 (M); -- 'Ali Sheikh v. Imam Ali, AIR 1917 Cal 565 (N) and
-- 'Amritram v. Dwarka Narayan', AIR 1948 Pat 332 (O).
Proviso (6) reads :
"Any fact may be proved which shows in what manner the language of a document is related to 'existing facts'."
The other provisos are also mostly in the nature of exceptions to the main rule given in Section 92, and it is admitted by the parties that they are not applicable to the circumstances of the present case. Proviso (6) is on the face of it couched in very wide terms and the meaning of it is not apparently confined to a defined scope. I, however, think that this proviso when read with Sections 94 and 95, Evidence Act, does convey certain defined scope of its meaning. Section 94 reads:
"When language used in a document is plain in itself, and when it applies accurately to 'existing facts', evidence may not be given to show that it was not meant to apply to such facts."
Section 95 says:
"When language used in a document is plain in itself, but is unmeaning in reference to 'existing facts', evidence may be given to show that it was used in a peculiar sense."
These two sections when read with the main rule of law laid down in Section 92, I think, clearly suggest that the proviso (6) comes into play only when there is a latent ambiguity in a document, that is, when the language of the document is not prima Facie consistent with the existing facts, or, in other words, when there is a conflict in the plain meaning of the language used in the document and the Facts existing or when they put together lead to an ambiguity. In case, therefore, when the language used in a document is plain and not in any way ambiguous in reference to facts existing, there is no scope for coming into play of the rule of interpretation laid down in proviso (6) to Section 92, Evidence Act.
In the case of -- 'Tsang Chuen v. Li Po Kwai', AIR 1932 PC 255 (P), it has been laid down that the general rule is that where the words of the written instrument are free from ambiguity in themselves and where external circumstances do not create any doubt or difficulty, evidence 'de hors' the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument is utterly inadmissible. On the same line is the principle of law laid down in the cases of -- 'Babu v. Gokuldoss Govardhandoss', AIR 1928 Mad 1064 (Q); --'Babu v. Official Assignee, Madras', AIR 1934 PC 138 (R) and--'Gopal Ojha v. Ramadhar Singh', AIR 1925 Pat 228 (S). By now it is also settled that the rule on this point in English and American laws are slightly different to what is laid down in Section 92. In those laws the rule of equity has also its own say in construing a document, which, as laid down in the case of -- 'Lincoln v. Wright', (1859) 4 De G and J 16 (TJ; says that "The principle of the Court is, that the statute of Frauds was not made to cover fraud. If the real agreement in this case was that as between the plaintiff and Wright the transaction should be a mortgage transaction, it is, in the eye of this Court, a fraud to insist on the conveyance as being absolute, and parol evidence must be admissible to prove the fraud."
Contrary to English and American laws in India the transaction reduced to writing as between the parties has to be construed strictly in accordance with the statutory rule of evidence given in Section 92 and not also in accordance with the rule of equity 22 All 149 (D). Notwithstanding, however, this difference and wider scope for the admissibility of parol evidence under those laws, it has been held even by the American Court in the case of -- 'Snyder v. Griswold', 37 111 216 (U) that where the deed and accompanying papers on their face constitute a mortgage, parol evidence is not competent to show the contrary. To the similar effect are the principles laid down under English law in the cases of -- 'North Eastern Railway Co. V. Hastings', 1900 AC 260 (V) and -- 'Higgins v. Dawson', 1902 AC 1 (W).
16. In the present case it is admitted that the documents in dispute on their face are mortgage deeds. Further the terms stipulated in them, some of which I have already referred to above, clearly indicate that the properties covered by those documents were given in security for a debt and not transferred absolutely. It is, therefore, manifest that the two mortgage deeds do not, in the least, when read by themselves, indicated that they were documents other than mortgage deeds. All the elements necessary to constitute them mortgage deeds are on their face plainly and abundantly present without any scope for any ambiguity.
There is no indication whatsoever in them that they were in fact intended to operate as documents of sale. Neither there is any fact existing which can be said any way sufficient to give rise to any ambiguity in the language of the documents when related to that fact. Even according to the admitted case of the defendants, the usufructuary mortgages were then used to be of two kinds; one of which operated, according to them as a document of sale and the other as a genuine usufructuary mortgage. Here there is no fact brought on the record, as already discussed by me above, which can prove that the present mortgage deeds were not of the class of genuine usufructuary mortgages but were of the class which used to operate as deeds of sale.
I, therefore, hold for the reasons stated above that the documents are plain in themselves and apply accurately to facts existing and in that view of the matter parol evidence should not have been in law admitted for the interpretation of those documents. When parties have deliberately put their mutual engagements into writing in language which plainly and clearly imports a legal obligation, it is only reasonable to presume that they have introduced into the written instrument every material term and circumstance. In the case of -- 'Shaw v. Foster', (1872) 5 HL 321 (X), Lord Cairns, though it was, it may be noted, a case under English law, observed:
"..... although it is the well established rule of equity that a deposit of a document of title without more, without writing, or without word of mouth, will create in equity a charge upon the property, I apprehend that rule will not apply where you have the deposit accompanied with an actual written charge. In that case you must refer to the terms of the written document, and any implication that might be raised, supposing there was no document, is put out of the case, and reduced to silence by the document by which alone it must be governed."
It is true that the name given by the parties to a document is not conclusive as to its real nature and effect -- 'Appa v. Kachai Bayyan Kutti', AIR 1932 Mad 689 (Y) and there is nothing in Section 92, Evidence Act, to exclude oral evidence of an oral agreement which contradicts, varies, etc., not the terms of the contract, but some recitals in the contract itself -- 'Sah Lal Chand v. Indarjit', 27 Ind App 93 (PC) (Z); but in the present case apart from the names given to them in their bodies, the terms stipulated thereunder also conclusively prove that they were intended to operate as usufructuary mortgage deeds. Accordingly, in my opinion, Mr. Lal Narayan Sinha is right in contending that in the circumstances of the present case the Courts below should not have relied on the parol evidence brought on the record to prove that the mortgage deeds were in fact intended to operate as deeds of sale.
17. The cases relied upon by the parties are mostly those wherein the language of the documents, though plain by themselves, was unmeaning in reference to existing facts and in that view of the matter facts were allowed to be proved which showed in what manner the language of these documents was related to existing facts. But in doing that the Court was put to a question which it had to answer and that was, what should be the scope and latitude of the parol evidence to be given in order to show in what manner the language of those documents was related to existing facts. On that point the Madras and Bombay High Courts at a point of time took one view which may be found illustrated in the case of the Madras High Court in the case of 25 Mad 7 (E) and in the case of the Bombay High Court in the case of 30 Bom 119 (F).
The dominant view taken then by the Calcutta High Court was, however, different to it and that is to be found lucidly discussed in the Full Bench case of -- 'Preonath Shaha v. Madhu Sudan Bhuiya', 25 Cal 603 (Z1) which was followed subsequently in the case of -- 'Mahomed Ali Hossein v. Nazar Ali', 28 Cal 289 (Z2) and in the case of of -- 'Khankar Abdur Rahman v. Ali Hafez', 28 Cal 256 (Z3). While the opinions on this point of law were in this conflicting state in India, the Privy Council in the leading case of 27 Ind App 58 (PC) (D) laid down:
"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."
Subsequently the Privy Council reiterated this view again in the case of -- Jhanda Singh v. Wahid-ud-Din', AIR 1916 PC 49 (Z4) and in the case of AIR 1917 PC 207 (G). In the latter case their Lordships have observed:
"Notwithstanding the decision of this Board, however, a certain conflict of authority on the subject still remains in India._ But the respondents rightly refer to 25 Mad 7 (E), -- 'Maung Bin v. Ma Hlaing', 3 Low Bur Rul 100 (Z5) and 30 Bom 119 (F), and in particular to the judgment of Jenkins C. J. in the last case. In these the judgment of the Board, as pronounced by Lord Davey, has been rightly followed and applied."
Referring in this decision to the cases reported in 25 Cal 603 (Z1); 28 Cal 256 (Z3) and 28 Cal 289 fZ2) their Lordships specifically observed therein that they ceased to be of binding authority after the judgment of the Board pronounced by Lord Davey in the case of 27 Ind App 58 (PC) (D). In the face of these decisions of the Privy Council there is now no scope left for any controversy even on the point of the extent to which parol evidence is admissible in law to show in what manner the language of a document is related to existing facts. Following these decisions of the Privy Council this Court recently held in the case of -- 'Bhagwat Rai v. Ramasis Rai', AIR 1952 Pat 431 (Z6) that no parol evidence is admissible in law in between the parties to the transaction or their successors-in-interest to construe a mortgage document of a type in dispute to operate as a document of sale. This, therefore, fully supports the view stated above.
18. Further it appears that the rule of construction given in proviso (6) to Section 92 was originally relied on for construing wills though now it is applicable in other matters as well. Among those cases where apart from wills it has been freely used are mostly those where the controversy between the parties has been as to whether a document in dispute is a mortgage or a document of absolute sale either with or without a contract for resale. The reason perhaps for this in India has been the fact that under Indian law, as given in Section 58(c), Transfer of Property Act, a mortgage may, in certain cases, be entered into in the form of ostensible sale. There is, however, no such provision in law for the converse, that is, for the execution of a deed of sale in the form of a mortgage. I, therefore, doubt whether proviso (6) to Section 92 is at all available to prove that what is on the face a mortgage document is in fact an absolute sale. The very terms of a mortgage deed in general are so different to those of a deed of sale that any attempt to construe such a mortgage deed as a deed of sale will inherently result in the variation and the contradiction of the terms of the mortgage deed.
The case relied upon by Mr. De, which appears to be closest to the facts of the present case, is one to be found in the case of AIR 1917 Cal 565 (N). In that the issue to be decided was whether evidence of conduct was admissible to show that a document which was on the face of it a kot kobala (mortgage) was in reality a Kobala (deed of sale). Therein Chatterjee and Newbould JJ. observed:
"There is some divergence of opinion in the different High Courts with regard to the question, whether evidence is admissible to prove that a document purporting to be a mortgage is really a sale. In our Court, however, there is a pre-ponderance of authority on the point that evidence of conduct is admissible to show that what was on the face of it a mortgage, was in reality a kobala. We may refer to the case of 28 Cal 256 (Z3)."
I may point out here that the very authority, which has been relied upon in this case for the aforesaid view, has been condemned by the Privy Council in the case of AIR 1917 PC 207 (G). Therefore, it has no binding force. Further that case was decided mostly on the question of relinquishment. It was proved therein that the executant of the kot kobala had put in an application before the landlord for mutation of the names of the mortgagees stating in that application that the creditor had paid the money and that the tenants had executed the deed of kot kobala and also that it was arranged between them that the creditor was to pay the arrears of rent and was to be the de facto tenant. It was in fact, I think, in view of those facts brought on the record that the learned Judges in that case held that the transaction was to operate as that of sale. In the present case the defendants have not pleaded any case of relinquishment or of estoppel nor there is any evidence in support thereof. I, therefore, think that that case is of no avail to Mr. De. The other cases cited by him are, in my opinion, all the more remote from the point in controversy.
19. In the case of AIR 1925 PC 75 (K) the question was whether the transfer of certain shares in an oil company was by way of security or sale with a clause for repurchase. In the case of AIR 1917 PC 207 (G) the matter in controversy was as to whether a deed which was on the face of it a deed of sale operated as a deed of mortgage. In the case of 18 Cal LJ 228 (L) the point in dispute was as to whether a transaction was a mortgage or a deed of absolute sale with a clause for repurchase. In the case of AIR 1924 PC 226 (M) the point to be decided was as to whether two deeds of the same date phrased as documents of ostensible sale with an agreement for a resale and repurchase were intended to operate as mortgage by conditional sale. In all these cases the documents on their face were to operate as deeds of sale, but the contesting party pleaded that they were intended to operate as mortgage deeds. Further in those cases there were existing facts found which when considered with the words of the documents made them unmeaning.
In the case of 15 Cal WN 521 (JJ the principal questions for determination were; firstly, whether a deed of sale embodied a genuine transaction or was merely a fictitious deed; and secondly, whether or not the parties should be allowed to give parol evidence for the purpose of showing that the aforesaid deed, which purported to be and was a deed of sale on the face of it, was really a deed of gift. In this case what was in substance in controversy was the recital in the document and not its terms. In the case of AIR 1948 Pat 332 (O) the question in issue was the construction of a sanad wherein the words 'Jagir dowami' were used. The Court had to decide whether the word 'dowami' meant life interest or also a heritable estate. That was a case, in my opinion, which was covered by Section 98, Evidence Act.
20. These cases, therefore, do not throw any light on the point as to whether a document, which on the face of it without any ambiguity is a pure and simple mortgage, can be allowed in between the parties to the transaction or their successors-in-interest to be proved by parol evidence to have been intended to operate as a deed of sale.
21. For the reasons stated above, I think the appeals should be allowed and the judgment of the trial Court should be restored. In the circumstances of the case, no order for costs is passed.
Choudhary, J.
22. I agree.