P.C. Jain, J.
1. This revision petition is directed against the order dated 23rd July, 1884, passed by the learned District Judge, Jhalawar in Civil Suit ho. 1 of 1979, whereby the learned District Judge dismissed the application dated 19th March, 1983, filed by the petitioner-plaintiff praying that the burden of proof of issue No. 1 should be placed on the non-petitioners defendants.
2. Briefly stated the facts of the case are that the petitioner and non-petitioners Nos. 2 & 3 filed a suit for redemption of mortgage dated 29th July, 1969 against non-petitioner defendant No 1. It was contended that the suit house was mortgaged by conditional sale with non-petitioner defendant for Rs. 33,000/- by the petitioner. It was also stipulated that on return of the amount the house would be resold to the petitioner's father. Non-petitioner defendant filed a written statement and alleged that it was not a mortgage by conditional sale, but it was out-right sale with the condition of re-purchase within five years.
3. On the basis of the pleading of the parties, the learned trial court framed issue No. 1 as follows-
D;k fooknxzLr tk;nkn ds lEcU/k es Hk`rd 'kadj yky o izfroknh es e/; fnukad 29&7&69 dks tks ys[k Ik= lEikfnr gqvk og eksjxst ckbZ dUMh'kuy lsy gS A
4. The burden of proof of this issue was placed on the petitioner. The petitioner, therefore, moved an application on 19th March, 1984 with the prayer that the burden of proof should be placed on the non-petitioner defendant. The learned trial court dismissed the applicafion. Being aggrieved by the same, the petitioner has preferred this revision petition.
5. Shri J.K. Singhi, learned Counsel for the petitioner has raised the following to grounds two assail the order dated 23rd July, 1984.
(1) That the trial court was required to decide the onus of proof with regard to issue No. 1, but the trial court did not confine itself to this controversy and proceeded to decide the dispute itself. The contention of Shri Singhi is that the learned District Judge committed serious irregularly and illegality when he gave verdict that the suit document was an out-right sale and not mortgage by conditional sale;
(2) That the execution of the document dated 29th July, 1969, was admitted by the defendant non-petitioner No. 1. From the document it is evident that it is a document of sale with the condition for re-purchase and, this condition of re-purchase is embodied in the same document and, therefore, there is a presumption that the document is a mortgage by conditional sale. In view of this position of law, the trial court should have placed the burden of proof of issue No. 1 on the non-petitioner defendant.
6. Shri Singhi, thus, submitted that the trial court committed a grave illegality affecting its jurisdiction which would seriously prejudice the case of the petitioner.
7. On the other hand, Shri Gupta, learnsd counsel for the defendant petitioner No. 1, has submitted that there is no irregularity or illegality in the order passed by the learned trial Court. His submission is that the learned trial Court placed the onus rightly on the petitioner. He placed reliance on Hans Raj v. Mat Ram , which placed reliance on Baagwan Sahal v. Bhagwan Din 17 Ind App. 98 (PC), where in their Lordships of the Privy Council quoted with approval the following passage from Alderson V. White (1858) 2 De G & J 97:
The rule of law on the subject is one dictated by common sense, that prima facie an absolute conveyance containing nothing to show that the relation of debtor and creditor is to exist between the parties not cease to be an absolute conveyance and becomes a mortgage merely because the vendor stipulates the vendor stipulates that be shall have a right to repurchase.
8. In Shri Narain v. Bhaskar AIR 1954 Nagpur 193, a Division Bench of the Nagpur High Court has observed that there is no presumption attaching to ostensible sale deed but the onus is on the party allenging that an ostensible sale is in fact a mortgage. In Dayath Saheb v. B. Bharamanna : AIR1953Kant105 , the Mysore High Court held that the Proviso to Section 58 is no authority for holding that merely because the condition is embodied in the same document the transaction must be deemed to be a mortgage. In Bhaiyalal v. Kishorilal AIR 1950 Nagpur 198 it was observed that the onus must upon the person who wants to construe a document contrary to its tenor to establish the circumstances which go to prove that the sale evidenced by the document is only ostensible and not real.
9. Shri Gupta also placed reliance on Chunchun Jha v. Ebadat Ali : [1955]1SCR174 , wherein their Lordships of the Supreme Court has stated that the real rule of law on the subject is one dictated by common sence, 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 became 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 instruments?
10. Mr. Singhi placed reliance on Palani Goundar v. Thirumalal Goundar : AIR1982Mad57 , Nilamoni Bewa v. Mrutunjaya : AIR1951Ori362 and M.G. Ramaswami v. K.K. Vallabha : AIR1953Mad815 Shri Singhi also placed reliance on Chunchun Jha v. Ebadat Ali (Supra), on which reliance has been placed by Mr. Gupta also.
11. As the learned Counsel for the parties placed reliance on Chunchun Jha v. Ebadat Ali (Supra), it would be better if the proposition of law laid down by the Supreme Court in that case may be called out. The following principle may be derived from this case:
1. Once a transaction is embodied in one document and not two, and once its terms are covered by Section 58 of the Transfer of Property Act, then it must be taken as a mortgage by conditional sale unless there are express words to indicate the contrary, or in a case of ambiguity the attending circumstances necessarily lead to the opposite proposition.
2. Where a document has to be construed, intention must be covered in the first place from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended to mean but what is the legal effect of the words which they used. If, how ever, there is ambiguity in the language employed, then it is permissible to lock into the surrounding circumstances to determine what was intended.
3. The legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore, it is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words; and if the conditions of Section 59 are fulfilled, then we are of opinion that the deed should be construed as a mortgage.
12. The above referred judgment of the Supreme Court has been construed in Palani Garden v. Thirumalai Goundar (supra) by the Madras High Court and on the basis of Chunchun Jha v. Ebadat Ali (supra) and other authorities of the Supreme Court, namely Bhoju Madan v. Debnath Bhagat : AIR1963SC1906 Bapusami v. P. Gounder : [1966]2SCR918 and Bhaskar Wawan Joshi v. Shri Narayan Rambiias Agarwal : [1960]2SCR117 , the Madras High Court deducted the principle that the form of document is inconclusive. The question whether there is a mortgage or sale is one of intention. If the condition for repurchase is embodied in the same document, there is a presumption that the documents is a mortgage by conditional sale. Further it was also observed that in order to find out whether the intention was to execute a mortgage or an out and cut sale, it would be possible to refer to the surrounding circumstances for which oral evidence can be let in, but subsequent conduct would be inadmissible in evidence.
13. In Venkatapathiraju v. Ventakaratnam : AIR1953Mad801 , it was observed by a Division Bench of the Madras High Court that when the condition of reconveyance is embodied in the same document it is open to the Court to hold that what purports to be a sale is really a mortgage. Then it can be said that the sale is deemed to be a mortgage.
14. In Nilamoni Bewa v. Mrutunjaya (supra), which is a Full Bench judgment of the Orissa High Court, it was observed that where the mortgagor ostensibly sells the mortgage property on condition that on such payment being made the buyer shall transfer the property to the seller and the condition is embodied in the document which effects or purports to effect the sale in accordance with the Proviso added to Section 58(c) of the TP Amendment Act, 1929, it is to be presumed as mortgage, and the party, who asserts to the contrary, must have to prove it.
15. From the discussions made above, it is evident that the judgment of the Madras High Court in Patent Goundar v. Thirmalai Goundar (supra) is based on the proposition of law laid down by the Supreme Court in Chunchw Jha v. Ebadat All (supra). The Supreme Court in that case categorically stated that once the transaction of sale and the agreement to repurchase are embodied in on document and not two and once its terms ate covered by Section 58(c), then it must be taken to be mortgage by conditional sale, unless there are express words to indicate the contrary, or in case an ambiguity and attending circumstances necessarily lead to the opposite conclusion. It is also clear from the Full Bench judgment of the Orissa High Court in Nilamoni Bewa v. Mrutunjaya (supra) that in such circumstances the document should be presumed to be a mortgage. In my opinion, the Full Bench judgment in Nilamoni Bewa v. Mrutunjaya (supra); Palai Goundar v. Thirumalai Goundar (supra) are in accordance with the proposition of law laid down by the Supreme Court in Chunchuu Jha v. Ebadat AH (supra). From the document itself it is evident that it was a sale-deed with an agreement for repurchase of the property. This document is prima facie covered under the Proviso to Section 58(c) of the Transfer of Property Act. Prima facie, such an ostensible sale will be deemed to be a mortgage in view of the proposition of law laid down by the Supreme Court, referred to above and in view of the provisions made under the Proviso to Section 58 Thus, I am of the view that in the facts and circumstances, the onus should have been placed procedure and material irregularity and serious illegality in the matter of exercise of its jurisdiction which is likely to prejudice the case of the petitioner.
16. With regard to the other objection Shri Gupta submitted that in the case trial court has not decided the merit of issue No. 1 Prima facie, the contention of Shri Gupta appears to be correct. Whatever may be the position any observations on the merit of issue No, 1 made by the trial court in the impugned order will not be taken note of and the trial court will decide issue No. 1 on merit without being observed by the observations made in the order dated 23rd July, 1984. X am also making it clear that any observations made by this Court with regard to consideration of document or with regard to agreement will not be taken account in deciding merit of issue No. 1. The onus to prove issue No. 1 shall be placed on defendant non-petitioner No. 1.
17. In the premises aforesaid, the revision petition is accepted and it is directed that the burden to prcve issue No, 1 will remain en defendant-non-petitioner No. 1. The issue is recast as under.