BIND BASNI PRASAD, J.

( 1 ) THIS is a plaintiffs appeal arising out of a suit for redemption of a mortgage. On 3rd January 1936, the plaintiffs appellants executed ostensibly a deed of sale in favour of the defendant-respondent in respect of a house situated in the city of Agra for a sum of Rs. 150 only. Towards the end of this deed there was the following condition to the sale:

"there is one important condition which has been agreed to between the parties. If within the period of three years I, the vendor, pay Rs. 150 in a lump sum to the vendee I shall be entitled to the house and at my own expense I shall cause a sale-deed to be executed in my favour by the vendee. Otherwise after the expiry of the period fixed above this deed of sale will become a deed of absolute sale. I have, therefore, executed this deed of conditional sale providing for a period of three years in favour of the vendee. "

( 2 ) ON the same date, the appellant executed a rent deed also in favour of the defendant, respondent. It begins with a recital that the appellant had executed a deed of conditional sale on the same day. It provides that the appellant shall continue in possession of the house on a monthly rent of Rs. 3. It further stipulates that the liability to keep the house in repairs and to pay its taxes shall be upon the tenant, viz. , the appellant.

( 3 ) THE plaintiffs contend that the transaction was in reality a mortgage, although ostensibly it was a sale. On this ground they brought a suit for redemption. Both the Courts below have held that the transaction was an out and out sale and not a mortgage by conditional sale.

( 4 ) THE sole point for determination is whether the transaction before us is a mortgage by conditional gale or a sale with a condition of repurchase.

( 5 ) CLAUSE (c) of Section 58, T. P. Act defines a mortgage by conditional sale as follows:

" (c) 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 and the mortgage 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.

( 6 ) ONE thing is clear from the above definition and it is this. A mortgage by conditional sale is ostensibly a sale. The law provides that even though a transaction may ostensibly be a sale it will nevertheless be treated as a mortgage if the intention was not an out and out sale but to advance the money to the transferor and to give him a right to get back the property on the repayment of the money and if the property was transferred only for the purpose of serving as a security for the money advanced, The real test in such cases is to see the intention of the parties. Intention can be judged only from the surrounding circumstances. If we were to go only by the language used in the deed then there would hardly be any case of a sale which could be treated as a mortgage. Learned Civil Judge has relied upon two cases of this Court in support of his finding : The first case is Bishan Lal v. Banwari Lal, A. i. r. (26) 1939 ALL. 713: (135 I. C. 487 ). I am unable to see how this case lends support to the view which the learned Civil Judge has taken. It was held in that case that the question whether a deed is a mortgage by conditional sale or an out and out sale is a question which falls to be determined on a consideration of the terms of the deed itself and of the surrounding circumstances. In that case a lady had executed a sale deed by which she had conveyed the property to the vendee for a reasonable price. The deed contained a condition that if she should repay the amount

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