JUDGMENT Allsop, J. - This appeal arises out of proceedings under the Encumbered Estates Act. Hari Bahadur and others made an application u/s 4 of the Act and mentioned in the list of their property, which they bad to supply a share of five annas and four pies in the village of Akbarpur Barni, Mahal Hori Lal. An objection was taken by Prag Datt and Musammat Ram Dulari, widow of Chheda Lal that they were the owners of the property. The property was transferred to Prag Dutt and Chhera Lal by Hori Lal, deceased, the father of Hari Bahadur on the 18th January, 1915 The question at issue is whether this deed evidenced a sale or a mortgage by conditional sale. 2. The learned Judge of "the Court below held that the transaction was a mortgage, and there is an appeal before us by the objectors. 3. Learned Counsel for the Appellants argued that the natura of the transaction must depend upon the intention of the parties and not upon the question whether the property was sold on any of the conditions mentioned in Section 58 (c) of the Transfer of Property Act. The deed of sale dated 18th January, 1915 specifically said that the property was sold subject to a separate deed of agreement for the re conveyance of the property. That separate agreement was evidenced by another document executed on the same date. It recited that the vendees had agreed to reconvey the property if the vendor repaid to them, within 11 years, the full price in a lump sum or in two instalments. It was also agreed that the vendees would not give up possession if the vendor paid half the price only and that the vendor would not be entitled to any interest on the half share paid nor would be entitled to claim a reduction in the profits of the vendees. The learned Judge of the Court below has held that the two documents are evidence of one transaction and we have no doubt that he is right upon this point. As we have already said, the two documents were executed on the same date and there was a reference to the a.greement in the deed of sale. The learned Judge of the Court below has held that the two documents are evidence of one transaction and we have no doubt that he is right upon this point. As we have already said, the two documents were executed on the same date and there was a reference to the a.greement in the deed of sale. This was then a transaction by which the transferor transferred the property on condition that he would retransfer the property to the seller if the price of the property was repaid to him within a certain time. If we were to rely upon the terms of Section 58 (c) of the Transfer of Property Act alone, there could be no doubt that this was a mortgage by conditional sale. Learned Counsel for the Appellants has produced considerable authority in support of bis argument that we are not to look to that Sub-section alone, but to the intention of the parties. There can be no doubt that it was at one time the law that the intention of the parties was to be the criterion. We may refer to the cases of Bhgwan Sahai v. Bhagwan Din, (1890)12 All 887, Balkishan Das v. Legge, (1900) 22 All 149, and Jhanda Singh v. Wahiuddin, (1916)38 All 670. The question is whether the Transfer of Property Act made the law more definite and certain. There is no authority of their Lordships of the Privy Council upon this point, although in a subsequent case, Narasingerji Jayanagerji v. Panuganti Parathasaradhi Rayanum Garu, (1194) 47 Mad 779 (sic), the decision depended upon intention. That, however, was a case where their Lordships were called upon to decide whether it was necessary to base their decision upon intention. They decided that the transaction was a mortgage by conditional sale. There are decisions of various High Courts in favour of the Appellants, but it may be doubtful whether the question should not be reconsidered. In Ghulam Nabi Khan v. Niyazunnisa,(1915) 33 All 337 a Bench of this Court relied upon the English case of Alderson v. White,2 De. Gex and j. 105,which was the basis of the decisions of their Lordships of the Privy Council to which we have referred although the document with which they were dealing was executed in the year 1894. In Ghulam Nabi Khan v. Niyazunnisa,(1915) 33 All 337 a Bench of this Court relied upon the English case of Alderson v. White,2 De. Gex and j. 105,which was the basis of the decisions of their Lordships of the Privy Council to which we have referred although the document with which they were dealing was executed in the year 1894. It does not seem to have been noticed that Section 58 (c) of the Transfer of Property Act might have affected the issue. In the case of Bishambhar Nath v. Mohammad Obaidulla,(198) 45 All 581, the learned Judges relied upon the cases of Bhagwan Sahai v. Bhagwan Din, (1890) 12 All 887, Jhanda Singh v. Wahiduddin3 and Alderson v. White2 De. Gex and j. 105,, although the document before them was executed in the year 1886. Alderson v. White, (198) 45 All 581, was a case in which emphasis was laid upon the principle that a document must be construed according to its terms, unless there are circumstances to prove that it is not what it appears to be. In the case of Bishambhar Nath v. Mohammad Obaidullah Khan, (198) 45 All 581, the learned Judges asked themselves what the circumstances were which justified them in holding that the transaction with which they were dealing was not a sale which on the face of it seemed to be. They also said that a mortgage by conditional sale must first be a mortgage. They mentioned the case of Mithuvelu(sic) Mudaliar v. Vythilinga Mudaliar, (1920) 42 Mad 407. In that case the question did arise whether the Transfer of Property Act had made any modification in the law. The learned Judges held that it had not. They relied upon a remark in the case Balkishan Das v. Legge (1900) 22 All 149 that the Transfer of Property Act had not changed the law. That remark certainly appears in the judgment but It is made in another context. Their Lordships mentioned that the question had been raised before them whether it was necessary to look to the intention of the parties and they specifically refused to decide it. They were dealing with a document executed in the year 1883. That remark certainly appears in the judgment but It is made in another context. Their Lordships mentioned that the question had been raised before them whether it was necessary to look to the intention of the parties and they specifically refused to decide it. They were dealing with a document executed in the year 1883. The other basis of the decision in Muthvelu Mudaliar v. Vythilinga Mudaliar, (1920) 42 Mad 407 is that the Transfer of Property Act, by Section 53 (c) did not change the law because the terms 'mortgagor' and 'mortgaged property' are used in that Sub-section and the use of these terms shows that it is necessary to look elsewhere to discover whether the transaction is a "mortgage" or not. In a sense this, of course, is so as was pointed out by a learned Judge of this Court in the case of Mt. Mumtaz Begam Vs. Mt. Lachhmi and Others . Sub-section (c) of Section 58 does not give a complete definition of a "mortgage". It is necessary to look to Sub-section (a) of this section to discover that a "mortgage" is the transfer of an interast in specific immovable property for the purposes of securing the payment of money advanced or to be advanced by way of loan or any existing or future debt. This does not take us very much further because the questions remain, what is a "loan" or a "debt"? We are inclined to think that a loan or a debt is a sum of money which the parties intend to be repaid and it is at least arguable that any condition for retransfer on payment of a sum of money necessarily implies that there is an intention that the money may be repaid. It seems that the terms 'debt' or 'loan' in Section 58 do not necessarily imply that the money advanced can be recovered by the creditor in a Court of law, because, otherwise, a usufructuary mortgage would not be a mortgage at all. It is certainly one of the incidents of a mortgage that the mortgage money can be recovered if the security is destroyed, bat we doubt whether this contingency would ever be present in the minds of the parties in ordinary circumstances. It is certainly one of the incidents of a mortgage that the mortgage money can be recovered if the security is destroyed, bat we doubt whether this contingency would ever be present in the minds of the parties in ordinary circumstances. On the whole we are somewhat doubtful whether Section 58 of the Transfer of Property Act has not, in some measure, modified the previous law, but we express no definite opinion because we find it unnecessary to do so and because we have not heard counsel on the other side. There are certainly some decisions in favour of the view that the condition for retransfer would necessarily convert a sale, into a mortgage provided that the agreement and the sale were parts of the same transaction. 4. The reason why we do not think it necessary to express any definite opinion upon this point of law is that we are satisfied on the construction of the document before us that the learned Judge of the Court below was right in holding that there was an intention to mortgage rather than to sell. As the learned Judge has pointed out, the term given is eleven years, which we think, suggests that the transferors were giving themselves as long as possible to reply the money. Then the learned Judge has come to the conclusion that the property was worth more than the sum of Rs. 6,000 in consideration of which it was transferred. This finding has been contested before us. It is true that the price might be a fair one it the profit from rents alone was taken into consideration but the learned Judge has pointed out that there must have been considerable miscellaneous profits accruing from forest land and grazing land. Learned Counsel has drawn our attention to oral evidence suggesting that the miscellaneous profits were not large. There may be some force in what he says, but on the other hand we notice that Prag Dutt and one of his witnesses said that the property had decreased by a third in value and still Prag Dutt said that he was not willing to transfer it now for a sum of Rs. 8,000. As it was not an ancestral property it is unlikely that any sentimental interest was attached to it and the attitude of the witness rather suggests that Rs. 6,000 was not the full value in 1915. 8,000. As it was not an ancestral property it is unlikely that any sentimental interest was attached to it and the attitude of the witness rather suggests that Rs. 6,000 was not the full value in 1915. The learned Judge also relied upon the evidence of two witnesses, who appeared before him, Raj Narain a teacher and Durga Shanker Maewall, the director of a company. The learned Judge believed them. They said that they were present when the transaction was being discussed; that the transferors wanted a sum of Rs. 12,000 for their property which the transferees were not able to supply and that it was suggested that the property might be transferred for the smaller sum of Rs. 6,000 in the form of a mortgage. This evidence would not be admissible to prove that the transaction was, but it seems to us that it is admissible to prove the probable value of the property. The term in the agreement, that the money might be repaid in two instalments and that the payment of one half would not give a right to any interest or reduction of profits also seems to us to be inconsistent with the idea that the property was to be sola outright. On the whole we are satisfied that there is no reason for disturbing the decision of the learned Judge of the Court below. We, therefore, dismiss the appeal with costs. 5. We have before us a connected appeal, No. 381 of 1942. arising cut of the same proceedings under the Encumbered Estates Act. The question is whether certain houses were transferred by Hori Lal to one Musammat Sunder Kunwar on the 4th February, 1915. The applicants u/s 4 of the Encumbered Estates Act entered houses 1/181 and 1/182 as items 5 and 8 of their list of property. The Appellants claimed these houses as theirs under the deed of sale to which we have referred. In that deed the property transferred was half of one house and the whole of another house, the latter being to the south of the former. The question is whether these are identical with houses 1/181 and 1/182 which are items Nos. 5 and 8 in the application. In that deed the property transferred was half of one house and the whole of another house, the latter being to the south of the former. The question is whether these are identical with houses 1/181 and 1/182 which are items Nos. 5 and 8 in the application. The learned Judge has come to a conclusion against the Appellants on the evidence produced before him and learned Counsel has not been able to satisfy us that that conclusion was wrong. Unfortunately there are no plans or maps upon the record. It is, therefore, difficult from the boundaries alone to come to a definite conclusion. The objectors bad to prove their case and, in our judgment, they failed to do so. We see no reason to interfere with the decision of the learned Judge of the Court below and we dismiss this appeal also with costs.