S.K.CHOUDHURI, J.

1. This second appeal by the defendant is preferred against the judgment of reversal passed by the District Judge, Purnea in Title Appeal No. 142 of 1976 dated 6th August, 1977 allowing the appeal and thereby setting aside the judgment and decree of the trial Court which decreed the suit for redemption.

2. The substantial question of law which was formulated at the time of admission was as to whether Exhibit A is a deed of mortgage by conditional sale or a deed of sale with condition of repurchase and whether the lower appellate Court was right in holding that the document was a mortgage by conditional sale on the ground that the consideration of Rs. 400.00 was not the proper consideration for sale specifically in the absence of evidence to that effect.

This second appeal was listed for hearing before a Single Bench of this Court. The learned single Judge held that it involves interpretation of the document in question and considered it proper to refer the case to a Division Bench. That is how this case has been placed before us.

3. The plaintiff brought this suit for redemption of the document (Ext.A) treating it to be a mortgage bond executed by him in favour of the defendant on 9-8-1972 in respect of five decimals of land appertaining to plot No. 788, Khata No. 36 of village Rahmatpur, P.S. Terhagachh in the district of Purnea. The allegation of the plaintiff who is the respondent before this Court was that he executed a mortgage by conditional sale in favour of the defendant-appellant for a consideration of Rs. 400.00 and delivered possession to the latter. According to the plaintiff, he tendered the mortgage money to the defendant but the latter did not accept it and, therefore, he instituted the present suit for redemption.

4. The defence, in short, was that the document executed by the plaintiff was an outright sale and not a mortgage and that a right of repurchase was reserved by the plaintiff in the said document. The further defence was that the amount was to be repaid by the plaintiff to the defendant latest by the end of the year 1974, and that not having been done, the defendant has acquired absolute right in the document.

5. The trial Court held that the document (Exhibit A) was a sale deed and not a mortgage by conditional sale, and accordingly it dismissed the suit. The lower appellate Court however, as already stated above, reversed the said judgment and has held that the document was a mortgage by conditional sale and, therefore, passed a preliminary decree in the suit for redemption.

6. At the outset I may state here that the plaintiff-respondent remained unrepresented in this appeal, and in spite of service of notice, he did not choose to appear before this Court. As such we had the advantage of hearing the learned counsel for the appellant only.

Mr. Krishna Prakash Singh learned counsel appearing on behalf of the appellant contended that the document in question (Ext.A) is out and out a sale and not a mortgage bond and he strengthened his argument relying upon the clause in the mortgage deed itself where right has been reserved by the executant for repurchase of the property after paying the consideration amount by the end of 1974. According to the learned counsel, the said right of repurchase not having been exercised by paying the amount by the end of 1974, the defendant has acquired absolute title on the expiry of the said period and, therefore, the deed cannot be construed a deed of mortgage.

7. It appears from the order sheet of this Court that on a request made by learned counsel for the appellant, Exhibit A which is in Hindi was officially translated into English and the official translation has been included in the paper book. Learned counsel for the appellant accepts the said translation and has not challenged any portion of it before us.

8. It cannot be disputed that the law regarding construction of a document is well settled, namely, that the intention has to be gather