The main legal point established is that the interpretation of a mortgage deed should consider the intention of the parties at the time of execution, and the title of the deed should not solely determine the nature of the transaction.

JUDGMENT

1. The appellant herein impugns the judgment and order dated 3 rd August 1988 thereby upholding the judgment and order passed by the Civil Judge, Junior Division, Ajara in Reg. Civil Suit No.33 of 1982. Although there are concurrent findings, the substantial question of law in the present case is restricted to the issue framed by the appellant in Issue No.1 and Issue No.2 which reads as follows :-

"(1) Does plaintiff prove that the suit property was mortgaged with the defendant on 27/1/68 for Rs.2,000/-?

(2) Does he further prove that defendant refused to redeem the property?"

2. The said issues call for considering the interpretation of the document i.e. the mortgage deed which is marked at Exh.30 in the original proceedings.

3. The appellant herein has filed a suit for re-conveyance/ redemption of the mortgage on the basis of the mortgage deed dated 27 th January 1969 executed between the parties before Registrar. It was a registered document. Both the Court have held that the very title of the said document is enr [kjnh i= which means a sale for specific period. According to the plaintiff, this was not a sale deed but a deed of mortgage executed between the parties and was covered by section 58 of the Transfer of Property Act, 1882. Section 58 reads thus :

''58. ''Mortgage'', ''mortgagor'', ''mortgagee'', ''mortgage-money'' and ''mortgage-deed'' defined.

"(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

(b) Simple mortgage. Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.

(c) Mortgage by conditional sale. Where, the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: 1[Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.]

4. Perused the original mortgage deed. It clearly indicates that in order to meet agricultural expenses the plaintiff i.e. the present appellant had borrowed a sum of Rs.2,000/- from the original defendant and it was agreed between the parties that upon return of Rs.2,000/- after 7 years from the date of execution of the deed upto 10 years the property shall be re-conveyed in favour of the plaintiff. By the said deed, the defendant was put into possession of the said agricultural land which admeasured approximately 7 Acres along with trees and the other properties inherent in the said agricultural land and the executant would have no interest in the said land for a period of 7 years upto 10 years or till he returns the amount of Rs.2,000/-.

5. The intention of the parties was more than clear that it was a conditional sale deed/ mortgage deed. The clause of re-conveyance of the prop