AIR 1963 SUPREME COURT 1906

Supreme Court Of India

(From Patna: AIR 1958 Pat 371)

Hon'ble Judge(s): S. Jafer Imam, K. Subba Rao, J. R. Mudholkar , JJJ

Transfer of Property Act (4 of 1882) , S.58— Mortgage by conditional sale and sale with condition of repurchase -Distinction - Tests. There is a clear legal distinction between the two concepts, a mortgage by conditional sale and a sale with a condition of repurchase. The former is a mortgage, the relationship of debtor and creditor subsists and the right to redeem remains with the debtor. The latter is an out and out sale whereby the owner transfers all his rights in the property to the purchaser reserving a personal right of repurchase. The question to which category a document belongs presents a real difficulty which can only be solved by ascertaining the intention of the parties on a consideration of the contents of a document and other relevant circumstances. Decided cases have laid down many tests to ascertain the intentions of the parties but they are only illustrative and not exhaustive. For ascertaining the intention of the parties under one document a decision on a construction of the terms of another document cannot ordinarily afford any guidance unless the terms are exactly similar to each other.(Para 4 7) The translation of the words 'tamashuk sarti kebala' as mortgage by conditional sale does not appear to be correct. In Law Lexicon, P. Ramanatha Iyer gives the following meanings to the words ....