The distinction between a mortgage by conditional sale and a sale out and out with a condition of repurchase depends on the intention of the parties and the construction of the document, and not solely on the presence or absence of a condition of repurchase.

R.K.Choudhary, J.

1. The only question which arises in this appeal is whether the document which is the subject-matter of the suit out of which the present appeal arises is a mortgage by conditional sale or a sale out and out with a condition of repurchase.

2. The plaintiffs-respondents executed a registered sudhbarna bond on the 1st of March 1923, in favour of the defendants-appellants for a sum of Rs. 1600 giving 13.17 acres of land in sudbharna. It appears that the defendants could not get possession over the sudbharna land as a result of which they demanded the payment of the mortgage money. On the 23rd of February 1924, therefore, the plaintiffs executed the document in question in favour of the defendants transferring 12.6 acres of land out of the above 13.17 acres of sudbharna land for a sum of Rs. 2800. It is contended on behalf of the plaintiffs that this document of transfer is a mortgage by conditional sale, and they have, therefore, instituted a suit for redemption. On the other hand, the case of the defendants is that it was a sale out and out with a condition of repurchase and as the time fixed for repurchase had expired, the plaintiffs were not entitled to any relief. Both the courts below held that the document in question was a mortgage by conditional sale and they decreed the suit for redemption. Being, thus aggrieved, the defendants have presented this appeal in this Court.

3. A mortgage by conditional sale has been defined in Sec. 58 (c) of the Transfer of Property Act in these terms :

"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 a mortgage by conditional sale .... 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."

In order, therefore, that a transaction should be a mortgage by conditional sale, the conditions referred to above must be embodied in the same document under which the transaction is entered into. In this view of the law it has been held that where the condition of repurchase is given by a separate document and not by the same document under which the transaction was entered into, it is a sale out and out and not a mortgage by conditional sale, but the converse is not true. Though the conditions referred to above must be embodied in one and the same document for making that document a mortgage by conditional sale, it does not necessarily follow that wherever, a condition of repurchase is made in one and the same document under which the transaction is entered into, it must be held to be a mortgage by conditional sale. A Full Bench of the Allahabad High Court in Debi Singh V/s. Jagdish Saran Singh, A.I.R. 1952 All 716(A) took the view that the proviso added to S. 58(c) lays down the statutory test to be applied in such cases and that irrespective of the intention of the parties wherever a condition of re-transfer is embodied in the same document the transaction must be construed as a mortgage by conditional sale. Similar view was expressed by Mahabir Prasad J. in Mahabir V/s. Bigan, ILR 28 Pat 286 : (AIR 1949 Pat 503) (B) who held that regard being had to the definition of a mortgage by conditional sale as given in S. 58 (c) of the Transfer of Property Act, it appears that when the transaction is evidenced by one document, the question whether the transaction is a sale with a condition of repurchase can hardly arise. The leading judgment in that case was given by Manohar Lall J., who did not consider this question, but, on the other hand, observed that the question had to be determined on a construction of the document itself and decided the case on the