M. HIDAYATULLAH, C. J.

( 1 ) THIS appeal under the Letters Patent is against the Judgment of Kotval J, in second appeal No. 371 of 1950 dated 16th March 1956 and with the leave of the learned Single Judge.

( 2 ) THE appellant filed a suit for redemption of a mortgage (Ext. P-1) executed on 14th December 1927. By that document a house was conditionally sold to the respondent and it was one of the terms in the document that within six years if the consideration was repaid the property would be reconveyed to the vendor. After the expiry of the six years' period, on 16th December 1933, the defendant respondent served a notice upon the vendor saying that inasmuch as the stipulated condition of repurchase had been broken, the vendee had become full owner of the property and no right was outstanding in the vendor. As a result of this notice, it appears that parties negotiated further and on 1st February 1935 the vendee paid a further sum of Rs. 100/- to the vendor in lieu whereof the vendor relinquished all rights in the property in favour of the vendee. That document was not registered. All along the vendee was in possession,

( 3 ) THE contention of the vendor was that the document (Ex. P-1) was a mortgage and the equity of redemption was never relinquished by him. All that he had relinquished was the option of repurchase which had been reserved by him at the time he entered into this agreement of conditional sale. All the three Courts-including the learned Single Judge--decided against his contention and his suit was ordered to be dismissed by all the three Courts. In this appeal the same contention is raised.

( 4 ) SHRI Dube on behalf of the appellant contends that the document in question (Ex. D-4) of 1st Feburary 1935 was unregistered and that being unregistered and being in respect of property above Rs. 100/- in value it did not serve to extinguish the right of redemption of the vendor. He contends that the terms of that document cannot be looked into and that even if read all that the appellant surrendered was his option of repurchase and not his right of redemption. He relied upon a number of rulings which however do not apply to the facts of this case.

( 5 ) UNDER the first proviso in Section 60 of the Transfer of Property Act the right of redemption gets extinguished by act of parties. The transaction dated 1st February 1935 can easily be interpreted as an act of parties. The question is only whether by that document the vendor gave up his right of redemption unequivocally. It was contended that on the former view of such composite documents the vendor must have felt that he was entitled only to a right of repurchase and not to a right of redemption and that that being the state of the law he cannot now be deemed to have given up what the parties did not contemplate existed. The intention of the writer of Ex, D-4 is thus interpreted on the strength of the interpretation of such documents given by Courts in or about the year 1935. It has now been ruled by the Supreme Court as well as this Court that where a condition of repurchase is incorporated in the same document, then at least after 1929 there a presumption to start with that the document is one of mortgage unless the mortgage is expressly excluded or, in the case of an ambiguous document, it can be proved that no mortgage was intended. The relationship of creditor and debtor is apparent in Ext. P-1. In other words, the document cannot but be interpreted as one evidencing a mortgage and not a sale coupled with an option of repurchase.

( 6 ) WHETHER or not the parties understood it to be a mortgage, the terms of Ext. D4 are quite dear. By that document the vendor not only gave up his option of repurchase but went further and stated that from that day he had no right of any kind over the said house. In the presence of such a general abandonment of all rights and claims to the property, the vendor must be deemed to have given up whatever rights he had and those would includ

Click Here to Read the rest of this document