Evidence of subsequent conduct of the parties is inadmissible under Section 92 of the Evidence Act to prove that a transaction which is in form an absolute conveyance was intended to be a mortgage.

Ramaswami, J.

1. The question to be determined in this appeal is whether the plaintiffs can be granted a decree for redemption with respect to certain lands of khata Nos. 257 and 333 and certain palm trees in khata No. 368 located in village Shahbazpur, touzi Nos. 3051 and 3054.

2. The plaintiffs alleged that on 1st June 1897 Ganga Ram had executed a usufructuary mortgage deed in favour of Ramlal, ancestor of defendants 1 to 4, with respect to the lands in dispute for a consideration of Rs. 100. After the death of Ganga Ram, defendant No. 5 succeeded to the properties and on 5th of October 1946 the plaintiffs purchased the equity of redemption from defendant No. 5 by a registered sale deed. There was a stipulation in the document that a sum of Rs. 100 was kept in deposit with the plaintiffs for the purpose of redeeming the land. The plaintiffs alleged that though they tendered the amount to defendants 1 to 4, the latter refused to accept the money or to deliver possession of the land to the plaintiffs. The main ground of defence was that the document executed by Ganga Ram, though in form a mortgage deed, was intended to operate as a sale. It was averred on behalf of the defendants that the devise had to be resorted to since under the law then prevalent the holding could not be transferred unless there was custom of transferability in the village. Upon a consideration of the evidence adduced the Munsif held that the transaction was a sale and not mortgage and the plaintiffs ought not to be granted a decree for redemption of the alleged mortgage. The decision has been affirmed by the learned Subordinate Judge in appeal.

3. The main question to be decided is therefore whether the document dated 1st of June 1897 executed by Ganga Ram was a usufructuary mortgage, as contended on behalf of the plaintiffs, or constituted a sale, as contended on behalf of the defendants.

4. It is necessary for the purpose of answering this question that the terms of the document should be closely examined. The document, exhibit 11, recites that

"Ganga Ram in order to pay off the dues of a simple mortgage bond dated 5th June 1883 due to the mortgagee Ramlal Rai gives the lands including trees in rehan for a period of five years from Jeth 1304 to Jeth 1349 Fs. for a consideration of Rs. 100. That the consideration of Rs. 100 is set off towards the previous mortgage dues."

The document proceeds to state :

"The executant has put the rehandar in possession of the properties mentioned in the deed and the latter is required to appropriate the income from the lands after payment of rent as long as the principal money is not paid off."

There is the usual stipulation that in case the rehandar gets out of possession due to defect in title or being dispossessed then he would be entitled to realise the entire principal money with interest at the rate of Rs. 2 per cent. per mensem from the mortgage security and if this is not sufficient then the mortgagor would be personally liable for payment of the balance.

4a. The lower appellate court held that the document should be construed to be a usufructuary mortgage and there was no indication that the executant intended that the transaction should be a sale. But in view of the other evidence adduced on behalf of the defendants with respect to the conduct of the parties the lower appellate court held that the document was in reality an out and out sale and the plaintiffs were not entitled to be granted a decree for redemption of the alleged mortgage. In the first place, the lower appellate court referred to the circumstance that in the record of rights, exhibit 12, the lands in question are measured in khata No. 257 and 333 of touzi No. 3051 and there is a remark that Ganga Ram was the vendor and Ramlal Rai was the vendee. In the remarks column of khata No. 333 there is a note that the lands have been transferred by a registered document dated 1st June 1897 for a consideration of Rs. 100. There is also evidence t