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PETITIONER: PANDIT CHUNCHUN JHA
Vs.
RESPONDENT: SHEIKH EBADAT ALI AND ANOTHER.
DATE OF JUDGMENT: 14/04/1954
BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MUKHERJEA, B.K. HASAN, GHULAM AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 345 1955 SCR 174 CITATOR INFO : D 1963 SC1906 (7) D 1992 SC1236 (11,15,18,21)
ACT: Transfer of Property Act (Act IV of 1882)-Section 58(c) as amended by Act XX of 1929-Document-Wether a mortgage or sale outright -Principles for determining whether the document is one or the other.
HEADNOTE: There is no hard and fast rule for determining whether a given transaction is a mortgage by conditional sale or sale outright with a condition for repurchase. Each case must be decided on its own facts. The numerous decisions of the High Courts on the point are of no help because two documents are seldom expressed in identical terms. The intention of the parties is the determining factor but the intention must be gathered from the document itself which has to be construed to find out the legal effect of the words used by the parties. If the words are express and clear, effect must ’be given to them and any extraneous enquiry into what was thought or in. tended is ruled out. If however there is ambiguity in the language employed then it is permissible to look to the surrounding circumstances to determine wha...