The main legal point established in the judgment is that the intention of the parties has to be gathered from the terms of the document when they are express and clear. The court emphasized the legal effect of the words used in the deed and the principles to be applied while interpreting a document.

The appeal arises from a suit for redemption of mortgage. Plaintiffs are the appellants. The trial court as well as the lower appellate court held the transaction to be a lease and the request for redemption was denied. Hence the second appeal.

2. Plaintiffs are admittedly the owners of the building described in the plaint schedule which according to them was mortgaged to defendant as per mortgage deed dated 23-10-] 978. An amount of Rs. 1000/-was borrowed from defendant on the security of the building, possession of which was handed over to the defendant on condition to pay an amount of Rs. 85/- per month by way of surplus profits. The document stipulated for payment of interest at 12% on the amount defaulted. The period prescribed in the document is six months on the expiry of which defendant had to retransfer the building to plaintiffs. In case of default to pay the amount within the stipulated period defendant was given the right to realise the amount by way of sale of the right, title and interest of the plaintiffs over the building. Alleging that profits were paid up to 23-7-1982 request was made to retransfer possession. Defendant did not succeed to this request. That resulted in the filing of O.P.18/83 under S.83 of the Transfer of Property Act. That petition was dismissed. Hence the suit for redemption of the mortgage.

3. Defendant while admitting the transaction contended that the document evidences a lease of the building and not a mortgage. According to him the building was required for his occupation and plaintiffs wanted a document to evidence the transaction. The amount of Rs. 1000/- represents the advance paid. He therefore claimed to be a building tenant coming within the purview of the Kerala Buildings (Lease & Rent Control) Act, Act 2 of 1965.

4. The only document produced before the trial court is a registration copy of the possessory mortgage deed executed by plaintiffs to defendant. No oral evidence was adduced by the plaintiffs. The defendant examined himself as DW-1, On a consideration of the recitals contained in Ext. A1 and the testimony of DW-1 the trial court held that the transaction evidences a lease and not a mortgage. In consequence the suit was dismissed. On appeal the lower appellate court concurred with that decision. The plaintiffs have come up in second appeal challenging those decisions. The second appeal was admitted on the following substantial questions of law formulated in the appeal memorandum.

i. Whether the lower appellate court has not misconstrued S.92 of the Evidence Act and has it not misunderstood its scope and object in construing Ext. A1 in the light of extraneous evidence?

ii. On a true consideration of its terms whether Ext. A1 is not a redeemable mortgage and is the lower appellate court correct in law in holding that it amounts to a lease?

iii. Whether the respondent is not estopped from contending that Ext. A1 is not a redeemable mortgage but is a lease?

5. Heard counsel on both sides.

6. Assailing the decisions of the courts below learned counsel for the appellants submitted that the various recitals in Ext. A1 had not been properly analysed and considered in order to ascertain the nature of the transaction and the intention of the parties. The nomenclature of the document though not conclusive is an indication regarding the nature of the transaction intended to be created by the parties. The document is styled as a usufructuary mortgage deed. Though it purports to be a usufructuary mortgage deed the transaction amounts to an anomalous mortgage in view of the right conferred on the mortgagee to bring the right of the mortgagor to sale for realisation of the amount borrowed. Before analysing the recitals contained in the document to find out whether the parties intended to create a mortgage or a lease it is worthwhile to refer to the definition of mortgage contained in the Transfer of

Property Act and the ingredients of the usufructuary mortgage and an anomalous mortg