Judgment- 1. The plaintiffs to the suit and the petitioners in both the Writ Petitions (hereinafter, for the sake of brevity, referred to only as ""the plaintiffs"") are a company registered under the Companies Act are carrying on the business of manufacturing sugar and allied products at their factory at Harigaton in Ahmednagar District since the last about 45 years. Prior to the coming into force of the Maharashtra agricultural Lands (Ceiling on Holdings) Act (Maharashtra Act XXVII of 1961) on the 26th of January 1962, the plaintiffs owned a large area of agricultural lands which were contiguous to the Plaintiffs factory and within a convenient distance from the same. The plaintiffs used to cultivate sugarcane on the said lands which was used and consumed entirely by the plaintiffs sugar factory. In fact, it was with a view to ensure an adequate and continuous supply of raw materials of good quality, without being subject to fluctuations in the prices of sugarcane that the plaintiffs were cultivating the said lands. Under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961, however, all surplus lands of the plaintiffs, i.e. lands in excess of the ceiling fixed in the manner provided by the Act, vested in the State Government, subject, of course, to payment of compensation as therein provided. Section 28 of the said Act which is important for the purpose of this case and which must, therefore, be quoted in extenso, enacts as follows: ""28. (1) Where any land held by an industrial undertaking is acquired by and vests in, the State Government under Section 21, such land being land which was being used for the purpose of producing or providing raw material for the manufacture or production of any goods, articles or commodities by the undertaking, the State Government shall take particular care to ensure that the acquisition of the land does not affect adversely the production and supply of raw material from the land to the undertaking. (2) Notwithstanding anything contained in Section 27, but subject to any rules made in this behalf, for the purpose of so ensuring the continuance of the supply of such raw material to the undertaking, and generally for the full and efficient use of the land for agriculture and its effect management, the State Government (a) may, if it is in the opinion of that Government necessary for the purpose aforesaid (such opinion being formed after considering the representation of persons interested therein) maintain the integrity of the area so acquired in one or more compact blocks; (b) may, subject to such terms and conditions (including in particular, conditions which are calculated to ensure the full and continued supply of raw material to the undertaking at a fair price) grant the land, or any part thereof, to a joint faring society (or a member thereof) consisting as far as possible, of (i) persons who had previously leased such land to the undertaking, (ii) agricultural labour (if any) employed by the undertaking on such land, (iii) technical or other staff engaged by the undertaking on such land, or in relation to the production or supply of any raw material, (iv) adjoining landholders who are small holders, (v) landless persons; Provided that, the State Government may: (a) for such period as is necessary for the setting up of joint farming societies as aforesaid, being not more than three years in the first instance (extensible to a further period not exceeding two years) from the date of taking possession of the land, direct that the land acquired. or any part thereof, shall be cultivated by one or more farms run or managed by the State, or by one or more corporations (including a company) owned or controlled by the State; (b) grant to the landlord so much of the surplus land leased by him to the undertaking, which together with any other land by him does not exceed the ceiling area (but if the landlord be a public trust and the major portion of the income from the land is being appropriated for purposes of education or medical relief, grant the entire land to the public trust) lease the land to a farm or corporation described in clause (a) aforesaid, and thereafter, in the case of a landlord (not being a public trust) that he becomes a member of the joint farming society, and in the case of a public trust, that it leases the land to a joint farming society. (3) The State Government may provide that: (a) for the breach of any term of condition referred to in clause (b) of sub-section (2), or (b) if the landlord to whom the land is granted fails to lease the land to the farm or corporation or to become a member of a joint farming society; or (c) if it considers after such inquiry as it thinks fit that the production and supply of raw material to the undertaking is not maintained at the level or in the manner which, with proper and efficient management it ought to be maintained, or (d) for any other reason it is undesirable in the interest of the full and efficient cultivation of the land, that the joint farming society should continue to cultivate the land, the grant shall, after giving three months notice of termination thereof and after giving the other party reasonable opportunity of showing cause, be terminated, and the land resumed. Thereafter, the State Government may make such other arrangements as it thinks fit for the proper cultivation of the land and maintenance of the production and supply of raw material to the undertaking."" Section 46 of the said Act empowers the State Government to frame Rules, inter alia, for carrying out the purposes of section 28 of that Act. The State Government framed Rules in exercise of the rule-making power conferred upon them under section 46 of the said Act. The State Government framed Rules in exercise of the rule-making power conferred upon them under section 46 of the said Act. On 24th October 1967, the State Government amended these Rules by framing Rules 12B and 12C under sub-section 2(d) of Section 46 of the Act, to the contents of which I will refer at the appropriate place later on. 2. There are, however, certain material facts relating to this case which occurred prior to the framing of Rules 12B and 12C, which must be narrated here. On the 6th of March 1963, the Maharashtra State Farming Corporation Ltd., which is the defendant to the suit and the second respondent in both the Writ Petitions, was registered under the Companies Act in accordance with the provisions of proviso (a) to section 28(2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act; and it is not disputed that the entire share-holding of the said company was not only owned by the State Government, but its Board of Directors consisted wholly of nominees of the State Government, the Revenue Minister for the time being, being the Chairman of the Board of Directors of the said company. On a Writ Petition (being Special C. A. No. 80 (Sic of 1963) filed by the plaintiff company challenging the validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, a Division Bench of this Court, consisting of Kotawal and Mody JJ., held on the 25th October 1963 that section 28 of the said Act was void as offending against Article 14 of the Constitution, but that the rest of the said Act, which was severable, was valid. It may be mentioned that that was a common judgment delivered in the said Special C. A. No. 800 (Sic) of 1963 filed by the plaintiffs, and in several other petitions filed by other sugar companies. It may be mentioned that that was a common judgment delivered in the said Special C. A. No. 800 (Sic) of 1963 filed by the plaintiffs, and in several other petitions filed by other sugar companies. Appeals were filed from the said decision of the High Court, but before the same could be heard, the 17th amendment to the Constitution came into force on the 20th June 1964 by which the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, was placed as Entry No. 34 in the 9th Schedule to the Constitution, the legal effect of which was that by virtue of the provisions of Article 31B of the Constitution, the validity of the said Act could not be challenged on the ground that it violated any of the fundamental rights declared under Part III of the Constitution. In another matter that came before it on a Writ petition (Spl. C. A. No. 1642 of 1963 filed by the Godavari Sugar Mills Co. Ltd., a Division Bench of the High Court consisting of Chainani C. J. and H. R. Gokhale J., held on the 10th of March 1965, that the 17th Amendment to the Constitution had put section 28 and other provisions of the impugned Act beyond challenge on the ground that they were inconsistent with or took away or abridged any of the fundamental rights guaranteed under the Constitution, a decision which was confirmed by the Supreme Court in appeal on 10th April 1963. 3. In order to complete the outline of the previous judicial decisions on the subject, it may be mentioned that, on the 27th day of February 1967, a Special Bench of eleven judges held, by a majority, in the case of Golak Nath v. State of Punjab, (A.I.R. 1967 S.C. 1643, paragraphs 52-53) that Parliament has no power to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein, but applying the doctrine of ""prospective overruling"" of its own earlier decisions, it was held that the 17th amendment and all amendments effected prior thereto by which fundamental rights were sought to be abridged were valid on the basis of earlier decisions of the Supreme Court itself. Soon after the decision of the High Court in Spl. Soon after the decision of the High Court in Spl. C. A. No. 1642 of 1963, some time in or about April-May 1965, negotiations started between the plaintiffs representatives and the representatives of the Government, and it is the plaintiffs case in paragraph 24 of the plaint that, at one of those meetings, Shri D. R. Pradhan, the then Chief Secretary to the State Government and a Director of the defendants as representating the State Government and the defendants, agreed with the plaintiffs representatives that the prices to be charged to the plaintiffs by the defendants for the sugarcane supplied from the 1966-67 season onwards would be the prices fixed by the Government of India. This agreement is denied by the defendants in paragraph 24 of the plaint that the plaintiffs representatives were assured and promised by the said Pradhan that they would be treated and given the same terms and conditions as other sugar factories which had already handed over their surplus lands. This statement is not denied in paragraph 16 of the Written Statement. Possession of the surplus lands of the plaintiff-company, admeasuring about 11,393 acres and 18.5/8 gunthas, was given by it to the State Government on the 25th of May 1965. It was at that stage that a meeting was held between the representatives of the plaintiffs on the other hand, and two of the directors of the defendants on the other, on the 20th of July 1965. The fact that such a meeting was held is not denied by the defendants, but there is difference in the respective versions of the parties as to what transpired at the said meeting. The plaintiffs case with regard to the same, as set out in paragraph 27 of the plaint, is that at the said meeting it was agreed between the parties that the price to be charged for sugarcane produced by the defendants on the surplus lands of the plaintiffs, all of which was to be supplied to the plaintiffs, would be governed by the notifications issued by the Government of India from time to time, and that the plaintiffs would in their turn be bound to purchase all the cane produced on the said surplus lands of the plaintiffs at those prices. This part of the averments in paragraph 27 of the plaint is not denied in paragraph 19 of the Written Statement. This part of the averments in paragraph 27 of the plaint is not denied in paragraph 19 of the Written Statement. It is, however, further stated in paragraph 27 of the plaint that the said prices meant and were understood by the parties to mean the minimum prices fixed by the central Government under its annual notifications, and that the said minimum prices were regarded by the parties as fair prices within the meaning of Section 28 of the Act. The first part of that averment is clearly denied in paragraph 19 of the Written Statement. As far as the second part of the said averment is concerned, though the same is not denied in paragraph 19 of the Written Statement which deals inter alia with paragraph 27 of the plaint, it has been contended by the learned Advocate General that the same has been denied in paragraph 27 of the plaint, it has been contended by the learned Advocate-General that the same has been denied in paragraph 27 of the Written Statement. It may be mentioned that it is further stated in the said paragraph that it was agreed that the defendants were to enter into a formal agreement with the plaintiffs for the supply of sugarcane. That has not been denied in paragraph 19 of the Written Statement. The plaintiffs by their letter dated 5th August 1965 (Ex. B.) forwarded to the defendants a copy of the Minutes of the said meeting of 20th July 1965 (Ex. C) and asked for confirmation of the same. In item No. 1 of the said Minutes which related to the prices of sugarcane to be charged by the Corporation, it was stated that it was agreed that the price to be charged for such cane was stated that it was agreed that the price to be charged for such cane was to be governed by notifications issued by the Government of India from time to time, and that the factory would be bound to purchase all such cane at those prices. It is further stated in the said item that the Corporation would enter into a formal agreement with the Company for the supply of cane. The Court is not concerned in the present case with the remaining items in the said Minutes. The managing director of the defendant Corporation by his letter dated 9th August 1965 (Ex. It is further stated in the said item that the Corporation would enter into a formal agreement with the Company for the supply of cane. The Court is not concerned in the present case with the remaining items in the said Minutes. The managing director of the defendant Corporation by his letter dated 9th August 1965 (Ex. D) confirmed the arrangement arrived at in respect of the said Item No. The Board of Directors of the defendant-Corporation passed a Resolution at their meeting held on the 9th September 1965 approving of the agreement arrived at by the said Corporation with the plaintiff company as a result of discussions with their representatives. The material portion of the agreement approved of by the said Resolution was in the following terms: ""6. The Prices of Cane to be charged by the Corporation. - The prices to be charged for the Corporations sugarcane shall be governed by the notifications issued by the Government of India, from time to time, and the factory shall be bound to purchase all such cane at that price. The Corporation should enter into a formal agreement with the company for the supply of cane."" A copy of the relevant portion of the Minutes of the said meeting of the Board of Directors of the defendant Corporation is Ex. E in the present proceedings. 4. A notification was issued by the Central Government on the 1st of November 1966 (Ex. H 6) under the Sugarcane (Control) Order 1966, promulgated in exercise of powers conferred on the Central Government by section 3 of the Essential Commodities Act, 1955, fixing the minimum price for the year 1966-67 (1st November 1966 to the year 1966-67) at Rs, 5.72 per quintal (Rs. 57.2 per ton) in respect of the plaintiff-company. It may be mentioned that similar notifications fixing minimum price had been issued by the Central Government from time to time ever since the enactment of the Essential Commodities Act, 1955. 57.2 per ton) in respect of the plaintiff-company. It may be mentioned that similar notifications fixing minimum price had been issued by the Central Government from time to time ever since the enactment of the Essential Commodities Act, 1955. It may also be mentioned that in paragraph 29 of the plaint it is stated that sugarcane crop is harvested and is ready for sale from about October in each year, that in connection with the standing crop which was harvested during the crushing season 1965-66 (November-October) separate arrangements were made under an agreement dated 10th May 1965, and that the first crop of sugarcane grown and harvested by the defendants on the surplus lands of the plaintiffs was for the crushing season 1966-67 (November- October). Each one of these statements has been admitted in paragraph 20 of the Written Statement to be correct. It is also common ground that sugar has, at all material times, been a controlled commodity, and that the maximum price of sugar has been fixed from time to time by the Central Government Act. It is also an undisputed fact that the price of sugar is linked to the price of sugarcane by reason of the fact that the cost of sugarcane forms about 60% of the cost of producing sugar. A further fact which is not disputed is that partial decontrol of sugar was brought into force with effect from the 1st of October 1967, from which date sugar manufacturers were free to sell 40 per cent of their production in the free market. 5. On the 11th of November 1966, the managing director of the defendant Corporation addressed a letter (Ex. Gl) to the plaintiff-company and to all other sugar companies stating that it was no longer economic to charge prices for its sugarcane at the minimum rate announced by the Government of India under the Sugarcane Control Order, and that an increase to the extent of 25 per cent over the minimum price of sugarcane announced by the Government of India, which was reasonable and justifiable, had been decided to be charged for sugarcane harvested during the crushing season of 1966-67. The plaintiffs by their letter dated 15th November 1966 (Ex. G2), however, declined to agree to any increase in the price of sugarcane. The plaintiffs by their letter dated 15th November 1966 (Ex. G2), however, declined to agree to any increase in the price of sugarcane. What ultimately happened was that the defendant-Corporation supplied sugarcane and made out a bill for the crushing season 1966-67 with an increase of 25 per cent over the minimum price fixed by the Central Government, but the plaintiffs paid for the said supply only at that minimum price. 6. With regard to the next crushing season viz. 1967-68 the defendant Corporation addressed a letter dated 23rd August 1967 (Ex. G3) to the plaintiffs and to all other sugar companies that, without prejudice to any adjustments that might be (arrived) at by mutual consultation, it had been decided by the Corporation that all its sugarcane would be supplied to factories during the said season at the rate of Rs. 120 per ton. It was further stated in the said letter that the defendant-Corporation would supply sugarcane to the plaintiffs factory during the said crushing season 1967-68 only if the plaintiffs agreed to pay for it at that rate. By its letter dated 8th September 1967 (Ex. G4) the defendant-Corporation sent a reminder in that behalf to the plaintiffs and other sugar companies, in which it was further stated that it confirmation was not received from the plaintiffs and other companies by the 15th of September 1967, it would be presumed that the plaintiffs were not interested in purchasing the defendant-Corporations sugarcane and the defendant-Corporation would proceed to make alternative arrangements for its disposal. There was further correspondence between the parties in the course of which the plaintiff company stated that they were definitely interested in purchasing all the sugarcane grow on the farms of the defendant-Corporation which were attached to the plaintiffs factory, that under no circumstances was the defendant-Corporation at liberty to make any alternative arrangements for its disposal, and that the defendant-Corporation was bound to supply the same to the plaintiffs at the prices notified by the Government of India in respect of the plaintiffs factory. By its notification dated 25th September 1967 (Ex. H8), the Central Government fixed the minimum price of sugarcane in respect of the plaintiff-company for the year 1967-68 (1st October 1967 to 30th September 1968) at Rs. 8.33 per quintal (Rs. 83.3 per ton). 7. By its notification dated 25th September 1967 (Ex. H8), the Central Government fixed the minimum price of sugarcane in respect of the plaintiff-company for the year 1967-68 (1st October 1967 to 30th September 1968) at Rs. 8.33 per quintal (Rs. 83.3 per ton). 7. It was at that stage hat the State Government proceeded to amend the Rules framed by it under S. 46 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, and invited objections from the companies concerned. As the defendant-Corporation had, in the course of the said correspondence, threatened to sell away the sugarcane grown on the surplus farms of the plaintiffs to others, after giving the requisite attorneys notice, the plaintiffs filed the present suit (Suit No. 610 of 1967) on the 16th of October 1967 against the Maharashtra State Farming Corporation, and obtained at interim injunction on the same day restraining the defendant Corporation from disposing of the sugar-cane produced on the surplus land of the plaintiffs to any party other than the plaintiffs. The Notice of Motion on which that interim order was obtained was thereafter adjourned from time to time. As the State Government against whom also an injunction was necessary has not been made a party to the said suit by reason of the fact that there was no time to give a statutory notice under Section 80 of the Code of Civil Procedure, and in view of the statutory bar to the filing of a suit contained in Section 41 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, Miscellaneous Petition No. 615 of 1967 was filed by the plaintiffs on the 19th of October 1967, to which both the State of Maharashtra as well as the Maharashtra State Farming Corporation were made parties, for appropriate writs, directions and orders under Article 226 of the Constitution. In the meantime, on the 24th of October 1967 the State Government published the amendments effected by it in Rules framed under Section 46 (2) (d) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, whereby the following tow Rules, which have already been referred to by me earlier, were added as Rules 12B and 12C:- ""12B, Arriving at fair price of raw materials - Where in pursuance of the provisions of Sec 28, any land held by industrial undertaking is granted to a person or a joint farming society, or is directed to be managed by a Corporation (including a company), then in arriving, from time to time at the fair price at which the full and continued supply of raw material produced from such land during any period is ensured to the undertaking, the State Government shall have due regard to the cost of production of the raw material, the price (if any) fixed under any law for the time being in force in respect of the raw material (including any minimum price fixed therefor), or of the goods, articles or commodities manufactured therefrom; a reasonable return to the supplier of the raw material; and any other relevant factors: Provided that, the State Government may for the purpose of arriving at the fair price of any raw material, be advised by a committee, consisting of not more than five persons of whom one may represent the interest of the undertaking and one of the joint farming society, or at the case may be, the Corporation, and two persons who in the opinion of the State Government have special knowledge of, or experience in, the industry. The Committee shall submit its recommendations to the State Government with in fifteen days from the date on which a reference is made to it. The Committee shall submit its recommendations to the State Government with in fifteen days from the date on which a reference is made to it. If the Committee fails to advise the State Government during the period allowed or such additional period, it any permitted by the State Government, the State Government may arrive at the fair price having regard to all the relevant materials before it."" ""12C, Prohibition against sale of raw material in excess of fair price - No person, joint-farming society, or corporation, shall sell to the undertaking any raw material at a price in excess of the fair price as arrived at in the matter aforesaid."" The State Government then proceeded to act under the said Rules with, what may be called unusual promptitude or perhaps indecent hurry. By its Resolution D/- 1st November 1967, it appointed the Advisory Committee contemplated by Rule 12B, of which one G. J. Ruparel, a Director of the Kolhapur Sugar Mills Ltd. was appointed a member along with others, and it is the case of the State Government that he was appointed as the representative of all the sugar mills and not as a representative of the Kolhapur Sugar Mills Ltd. alone. The said Advisory Committee held a meeting at Poona on the 6th of November 1967, and another meeting, which was the final meeting at Bombay, on the 8th of November 1967, and the said G. J. Ruparel, after lodging a strong protest, left the said final meeting. This fact appears from a letter dated 7th December 1967 subsequently addressed by the said G. J. Ruparel to the Secretary to the Government of Maharashtra, Revenue and Forests Department, which has been tendered and marked Ex. A in Misc.Petition No. 664 of 1967. The Advisory Committee however, proceeded to make its Report on the same day and a copy of that Report which, it may be mentioned, was under the circumstances stated above, not signed the circumstances stated above, not signed by the said G. J. Ruparel, is annexed to the affidavit of J. C. Karandikar dated 29th Feb. 1968 filed in reply to Misc. Petition No. 664 of 1967. On the very next day i. e. 9th November 1967, the State Government passed a Resolution fixing the fair price of sugarcane to be supplied by the defendant Corporation to the plaintiff during the crushing-season 1967-68 at Rs. 1968 filed in reply to Misc. Petition No. 664 of 1967. On the very next day i. e. 9th November 1967, the State Government passed a Resolution fixing the fair price of sugarcane to be supplied by the defendant Corporation to the plaintiff during the crushing-season 1967-68 at Rs. 125.44 per ton and that Resolution was released to the press on the 10th of November 1967. In view of the framing of Rules 12B and 12C and the passing of the said Resolution fixing fair price by the State Government, the plaintiff company filed another writ Petition (being Misc. Petition No. 664 of 1967) on the 13th of November 1967 against the State of Maharashtra and the Maharashtra State Farming Corporation Ltd. On the 29th of November 1967, a Consent Order was passed on the Notice of Motion taken out by the plaintiffs in the suit (Suit No. 610 of 1967) and the hearing of the suit itself was directed to be expedited. By the said Consent Order, the interim injunction that had been granted was replaced by a working arrangement under which sugarcane was to be supplied by the defendant Corporation to the plaintiffs during the crushing season 1967-68 on payment by the plaintiffs of an additional ad hoc sum of Rs. 10/- per tonne over the minimum price fixed by the Government of India and on their furnishing a bank guarantee for the balance, if any, that may be finally found due by the Court. 8. The plaintiffs case in the suit as well as in Misc. Petitions Nos. 615 and 664 of 1967 is that there was contract between the plaintiffs and the defendant Corporation under which it was agreed between the parties that the defendant Corporation would, on the one hand, supply sugarcane to the plaintiffs at a price which would be governed by notifications issued by the government of India from time to time, and that the plaintiffs would on the other hand, he bound to purchase all the sugarcane produced on their surplus lands at those prices. This case is to be found set out in para. This case is to be found set out in para. 27 of the plaint in which it is further stated that the prices so agreed were meant and understood by the parties to mean the minimum prices fixed by the Central Government under its annual notifications and the said minimum prices were regarded as the fair prices within the meaning of Section 28 of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961. It is also the case of the plaintiffs in paragraphs 34 and 36 of the plaint that the minimum prices of sugarcane fixed by the Central Government under its annual notifications were, in fact the fair prices, and that the unilateral and wrongful increase in prices sought to be effected by the State Government was contrary to its statutory obligations. The plaintiffs have, therefore, filed the said suit for specific performance and/or enforcement of the defendants obligations under the contract as well as at law. The learned Advocate-General has referred me to the averments in paragraph 38 of the plaint, and to the latter part of prayer (c) of the plaint, and has submitted that the same would justify the court of sugarcane under Section 9 of the Sale of Goods Act, in the event of its coming to the conclusion that the price thereof has not been fixed in the contract itself. The plaintiffs as petitioners in Misc. Petition No. 615 of 1967, have sought a declaration that the State Government as well as the State Farming Corporation are bound to supply the entire sugarcane produced from the surplus lands of the petitioners to the petitioners, and a further declaration that both the respondents are bound to ensure that the production and supply of sugarcane from the surplus lands of the petition No. 615 of 1967, have sought a declaration that the State Government as well as the State Farming Corporation are bound to supply the entire sugarcane produced from the surplus lands of the petitioners to the petitioners, and a further declaration that both the respondents are bound to ensure that the production and supply of sugarcane from the surplus lands of the petitioners is not adversely affected, and have prayed for appropriate writs, directions and orders in that behalf. 9. 9. The case of the Maharashtra State Farming Corporation as appearing from the written statement filed by it, and of the State Government as appearing from the Affidavits filed in Reply on Misc. Petitions Nos. 615 and 664 of 1967, is that though there was a contract between the parties for the supply of sugarcane by the Maharashtra State Farming Corporation to the plaintiffs, that contract did not provide for supply being made at the minimum price fixed from time to time by the notifications issued by the Central Government, and that the Maharashtra State Farming Corporation was entitled to be paid fair prices for the supply of such sugarcane. It is further the case of the State of Maharashtra as well as the Maharashtra State Farming Corporation that the State Government was entitled to fix the fair price for the supply of sugarcane, and had done some exercise of its power under Rule 12B of the Maharashtra Agricultural Lands (Celling on Holdings) Rules, 1962. 10. In view of these rival contentions of the parties, the following issues were framed by me inthe suit (Suit No, 610 of 1967) :- (1) Whether the State of Maharashtra is a necessary party to the suit and in its absence the suit is bad for non-joinder as alleged in para 1 of the Written Statement. (2) Whether there is any cause of action against the defendants which survives, in view of the resolution dated the 9th November 1967 of the Government of Maharashtra determining the fair price at which the defendants are to supply sugarcane to the plaintiffs as alleged in para 2 of the Written Statement. (3) Whether in view of the determination of fair price by the Government resolution dated 9th November 1967, this Honble Court has jurisdiction to determine the fair price at which the defendants have to or are to supply sugarcane to the plaintiffs as alleged in para 3 of the Written Statement. (4) Whether the price of controlled sugar fixed by the annual notifications of the Central Government is arrived at on the basis of the cost of sugarcane at the minimum price fixed by the Central Government for sugarcane as alleged by the plaintiffs in paragraph 18 of the plaint. (4) Whether the price of controlled sugar fixed by the annual notifications of the Central Government is arrived at on the basis of the cost of sugarcane at the minimum price fixed by the Central Government for sugarcane as alleged by the plaintiffs in paragraph 18 of the plaint. (5) Whether prior to the execution of the agreement dated the 10th May 1965 Shri. D. R. Pradhan representing the defendants agreed with the plaintiffs representatives that the price to be chargeed to the plaintiffs by the defendants for sugarcane for the season 1966/1967 onwards would be the price fixed by the Government of India as alleged in para 24 of the plaint. (6) Whether it was agreed and understood between the parties that the entire production of sugacrcane produced on the surplus lands of the plaintiffs would be sold by the defendants to the plaintiffs at the minimum price fixed by the Central Government as alleged by the plaintiffs in paras 27, 28 and 37 of the plaint. (7) Whether at the meeting held on 20th July 1965 between the plaintiffs and the defendants it was clarified that the prices of sugarcane would be governed by the notifications issued by the Government of India from time to time and that they would not be the same as the minimum prices fixed by the Government of India form time to time as alleged in para 14 of the written statement of the defendants. (8) Whether the minimum prices fixed by the Government of India from time to time are fair prices for the growers of sugarcane within the State of Maharashtra including the defendants as alleged in para 36 of the plaint. (9) Whether the plaintiffs are entitled to any reliefs and it so, what? (10) Generally. 11. On the 22nd of July 1968. Mr. Nariman stated that he did not desire to lead any oral evidence on issue No. 5 in view of the fact that the agreement pleaded in paragraph 2 of the plaint had not been denied in the Written Statement of defendants. Mr. Nariman also stated on that day that, as far as issue No. 8 was concerned he did not desire to lead any oral evidence with regard to the same, but relied only upon a construction of the relevant statutory provisions and orders to which he had referred in the course of his arguments. Mr. Nariman also stated on that day that, as far as issue No. 8 was concerned he did not desire to lead any oral evidence with regard to the same, but relied only upon a construction of the relevant statutory provisions and orders to which he had referred in the course of his arguments. As far as issue No. 9 relating evidence in regard to prayers (c) and (d), in the event of the Court holding against the plaintiffs with regard to the question as to what was the contract between the parties, and the learned Advocate-General agreed that that was the proper course to be adopted. I, therefore, directed that evidence, if any, in regard to these prayers will stand reserved till I have delivered judgment on the other issues in the case. With the remarkable fairness that is characteristic of him. learned Advocate-General Mr. Seervai, however, made certain statements which have been extremely useful in narrowing down the arena of conflict between the parties. On the 17th of July 1968 he made a statement that the order sugar factories which had already handed over their surplus lands to the State Government without contest were supplied sugarcane by the defendant-Corporation from their respective names in the notifications issued by the Government of India on 30th October 1964 and 4th November 1965. That statement was, of course, made by the learned Advocate-General entirely without prejudice to the defendant's contention that the facts stated therein are not admissible for interpreting the contract between the parties. It was made with a view to make it unnecessary for the plaintiffs to lead evidence to prove these facts which the defendants do not dispute. On 23rd July 1968, the learned Advocate-General stated that on further consideration he had come to the conclusion that issue No. 7 did not arise and that he would give up the same. The learned advocate-General further stated, at the end of his argument, that he also gave up issue No. 1 framed by me. On 23rd July 1968, the learned Advocate-General stated that on further consideration he had come to the conclusion that issue No. 7 did not arise and that he would give up the same. The learned advocate-General further stated, at the end of his argument, that he also gave up issue No. 1 framed by me. On 26th July 1968 a statement was recorded by me that the parties were agreed that a policy had been announced by the Central Government on the 16th of August 1967 whereby a quantity equal to 60 per cent of the production achieved from the 1st of October 1966 to the 30th of September 1967 would be procured from the sugar factories from their production from 1st October 1967 to 30th September 1968 at a fixed levy price, that factories would be free to sell the balance production anywhere in India at the free market price, subject to releases from factories sanctioned by the Government of India; that the entire stock of sugar from the production upto 30th September 1967 would continue to be controlled as on the 16th of August 1967 and releases would be made on the basis existing at that date till November 1967; and that the levy scheme would commence after the production of the year 1966-67 had been exhausted. Parties were further agreed that the said policy had in fact existed from 1st Oct, 1967 to 30th September 1968, with some modifications to which it was unnecessary to refer. The said statement was made by the parties and recorded by me with a view to make it unnecessary to prove the same by leading evidence, oral or documentary, in that behalf. 12. Though issues are not ordinarily framed in the trial of Writ Petitions, it was, by consent of parties, thought advisable by me, in view of the complicated and important questions that were sought to be canvassed in Miscellaneous Petition No. 664 of 1967, to frame issues therein. Towards the end of the arguments before me Counsel on both sides were agreed that it is not necessary for me to give my findings on any of the issues framed by me in the said Petition in view of certain statements made by the learned Advocate-General in regard to this Petition on 22nd July 1968 and 29th July 1968 to which I will presently refer. Under the circumstances, I do not think it necessary to set out the issues framed by me in the said petition. On the 17th of July 1968, the learned Advocate-General made a statement in regard to Misc. Petition No. 664 of 1967 which, he submitted, would render it unnecessary for the court to go into the question as to whether the State Government had the power to frame rules in regard to the fixation of fair price. The learned Advocate-General stated that having regard to Rule 12C of the Maharashtra Agricultural Lands (Ceiling on Holdings) Rules 1962, as amended by the notification dated 24th October 1967, the price fixed was the maximum price and, therefore, any price fixed under Rule 12B did not come in the way of the contract between the parties, whatever to be construction of the contract adopted by the Court. On the 22nd of July 1968, the learned Advocate-General stated that he had, by then, taken instructions from the State Government and that he desired to make a statement from the Bar that having regard to the fact that before the State Government fixed the prices by its Resolution dated 9th November 1967, it did not have before it the view of one Ruparel who was a member of the Advisory Committee appointed under Proviso to R. 12B and had been appointed to represent the interests of the undertakings, he was not in a position to support the said Resolution, or the Report of the Advisory Committee dated 8th November 1967, and both of them may be set aside by this Court. The learned Advocate-General further stated on that day that the Resolution dated 1st November 1967, appointing the said Advisory Committee, may also be set aside, as the same was only appointed to determine the fair prices for the season 1967-68 and as the same had already submitted its Report and had, therefore, become functus officio. In view of the said statements made by the Advocate-General, it became unnecessary for me to decide issues Nos. 10 and 12 framed by me in regard to this petition, and though issue No. 11 was reframed by me even the same did not survive in view of the said statements. In view of the said statements made by the Advocate-General, it became unnecessary for me to decide issues Nos. 10 and 12 framed by me in regard to this petition, and though issue No. 11 was reframed by me even the same did not survive in view of the said statements. In fact it was stated to me by the learned Counsel on both sides, on 29th July 1968, that they were agreed that it was not necessary to determine the matters arising in Misc. Petition No. 664 of 1967, because in view of the Statement made by the learned Advocate-General on the 22nd of July 1968 the impugned Resolutions dated 1st November 1967 and 9th November 1967 were to be set aside, The learned Advocate-General further stated that, having regard to the language of Rule 12-C, it was open to the defendants to charge less that the fair price determined under Rule 12-B. 13. It was, however, not thought necessary to frame issues in Misc. Petition No. 615 of 1967, as, even according to Mr. Nariman himself, the said objection survived only to the extend of considering whether or not the reliefs sought in prayers (a) and (b) of the petition should be granted, all the contentions raised therein being covered by Misc. Petition No. 664 of 1967, subsequently filed, which is the more comprehensive Petition. 14. In my option it would be convenient to deal first with issue No. 6 framed by me in Suit No. 610 of 1967. The fact that there was a contract arrived at between the parties at the meeting held on the 20th of July 1965 and that the same was approved by the Board of Directors of the defendant-Corporation at its meeting held on the 9th of September 1965 is not the subject-matter of dispute between the parties. It is, however, a matter of acute controversy between the parties as to what was the stipulation in regard to the price of sugarcane to be charged by the defendant-Corporation under that agreement. The form and wording of that stipulation both in the Minutes of the Meeting held on the 20th of July 1965 as recorded by the plaintiff company (Ex. C), and as recorded in the Minutes of the meeting of the Board of Directors of the defendant Corporation (Ex. The form and wording of that stipulation both in the Minutes of the Meeting held on the 20th of July 1965 as recorded by the plaintiff company (Ex. C), and as recorded in the Minutes of the meeting of the Board of Directors of the defendant Corporation (Ex. E) is identical, viz, that the price which was to be charted for the sugarcane to be supplied by the defendant- Corporation to be plaintiff company at the minimum price fixed by the Central Government under notification issued by it from time to time under the Sugarcane (Control) Order 1955, which in its turn was made under Section 3 of the Essential Commodities Act,, 1955. It is the contention of the defendant-Corporation, on the other hand, that that was not the stipulation agreed to between the parties in regard to price and though no positive case has been set out by the defendants in their written statement or on affidavit as to what according to them was the agreement in regard to prince the learned Advocate-General has, in the course of his argument, stated that the defendants' version was that the price at which sugarcane in question was to be supplied by the defendant-Corporation to the plaintiff-Company under the said contract was to be the price as fixed by the State Government by the Rules framed under the Maharashtra Agricultural Lands (Ceiling on Holidays) Act, 1961, having regard to the minimum price notification that may be issued by the Central Government. 15. On behalf of the plaintiff-company, Mr. Nariman submitted a threefold argument on the point. His first contention was that the words of the agreement which have been quoted above were clear and applied in terms to whatever was the price fixed by the notifications issued by the Central Government from time to time, whether the same happened to be the minimum price or any other price. In the alternative, Mr. Nariman contended that if the words of the stipulation in regard to price quoted above are not held by the Court to be clear, the court must look at the circumstances surrounding the said agreement between the plaintiff-company and the defendant Corporation for the purpose of finding out in what manner the language of the said agreement was related to existing facts as is permitted to be done by proviso (6) to Section 92 of the Evidence Act. In the further alternative, it was contended by Mr. Nariman that if the court comes to the conclusion that the stipulation in regard to price which has been quoted above, might have been meant to apply to any one of the three possible prices that could be fixed by the Central Government by notification viz., the minimum price, the maximum price or the levy (controlled) price, and could not have been meant to apply to more than one of those prices, extrinsic evidence can be given under Section 96 of the Evidence Act to show to which of these prices it was intended to apply. The learned Advocate-General has, on the other hand, contended that though, according to him also, the words of the stipulation quoted above, are clear, what they show, as a matter of plain language, is that the agreement the parties was not that the price to be charged by the defendant-Corporation for the sugarcane to be supplied to the plaintiff-company was to be minimum price fixed by the Central Government under the notifications issued by it from time to time, for if that was the agreement between the parties, nothing would have been simpler than to express the same in clear terms. The learned Advocate General contended that since the language of the stipulation in regard to price which has been quoted above is clear and unambiguous in terms, it is not permissible to look to extrinsic evidence, oral or documentary, for the purpose of construing that stipulation, or as an aid to its interpretation. 16. The first question that I must, therefore, proceed to consider is whether the stipulation in regard to price quoted above, is clear in terms, as both sides have contended, and if so, what is it that it clearly expresses. In my opinion, the terms of that stipulation are clear. The fact that the parties could have if they so chose, expressly stipulated that the price to be charged for the sugarcane supplied by the defendant-Corporation to the plaintiff-company was to be the minimum price fixed by the Central Government by its notifications, cannot be conclusive on the point. In my opinion, the terms of that stipulation are clear. The fact that the parties could have if they so chose, expressly stipulated that the price to be charged for the sugarcane supplied by the defendant-Corporation to the plaintiff-company was to be the minimum price fixed by the Central Government by its notifications, cannot be conclusive on the point. It is at least, an argument which the learned Advocate-General is entitled to use in support of his contention and which, it may be stated, has been used in some of the cases that we cited before me in the course of the argument. The simple answer to that argument, however, is that it is only because the parties have not expressed something in clear terms that litigation ensues. Indeed, that was the precise answer given by Lord Dunedin in his speech in the House of Lords in the case of Charrington and Co., Ltd. v. Wooder, 1914 AC 71 at p. 82 to such a contention which was advanced in the said case in the House of Lords. He said. ""I do not think it rests with either party to say to the other, if the meaning is as you contend, why did you not express it otherwise?' Both contentions as to the true meaning can be expressed by a gloss. If either of those glosses had been expressed there would be no possibility of dispute. It, therefore, comes back to the question, 'what is the true interpretation of the expression in the contract?'"" I must, therefore, come back to the question what is the true interpretation of the agreement in the present case in regard to price between the parties. In my opinion, Mr. Nariman is right when he contends that the stipulation in regard to price is clear (a) in that the said stipulation in regard to price clearly provides that the price is to be fixed in accordance with the notifications issued by the Central Government, and (b) in that there are notifications of the Central Government fixing the price of sugarcane. It may be mentioned that it was not sought to be argued, either by Mr. Nariman or by the learned Advocate-General, that the words ""governed by"" in the stipulation in regard to price quoted above do not mean the same thing as ""fixed"". It may be mentioned that it was not sought to be argued, either by Mr. Nariman or by the learned Advocate-General, that the words ""governed by"" in the stipulation in regard to price quoted above do not mean the same thing as ""fixed"". The learned Advocate-General has, however, contended that no price has in fact been fixed by the Central Government in regard to sugarcane, that what was been fixed by the Central Government by the notifications issued under the Sugarcane (Control) Order 1955 is the minimum price, and that, therefore, if those notifications are to be read into the contract between the parties in regard to price, the contact would read as if the parties had stipulated that the price to be paid to the defendant-Corporation for the sugarcane supplied by it to the plaintiff-company was not toe be ""lower than"" the price fixed by those notifications, that being the effect of the Sections 3 (1) read with 3 (2) of the Sugarcane (Control) Order 1955. I am afraid I cannot accept that argument of the learned Advocate-General, for it is not a question of reading the entire notification along with all the provisions of the Sugarcane (Control) Order into the contract, but what the contract provides is merely that if there is a price fixed by the Central Government by the notifications which it issues from time to time, the figure of that price is to be lifted from the notification and read into the contract as if it had been written therein. Whether the price fixed is the minimum price, or the maximum price, or the levy price which is popularly called the controlled price, it is all the same, a price fixed by the Central Government by notification, and the words of the stipulation in the contract between the parties in the present case in regard to the price of sugar-cane would, therefore, apply squarely to it. The question as to whether the legal position would be the same, or as to what it would be, if and when there is more than one price fixed by the Central Government by notifications issued by it from time to time under orders made in exercise of powers under the Essential Commodities Act 1955 does not arise for my consideration. There being, on the facts before me only one price fixed by the notifications issued by the Central Government from time to time, the stipulation in the contract would clearly apply to the same. In my opinion, the words in question are clear in expressing the intention of the parties and apply to the facts as they existed at the date of the contract. In that view of the matter, as laid down by the authorities discussed later on in this judgment, extrinsic evidence would not be admissible for construing those words. I, therefore, hold that the defendant Corporation is bound to supply sugar-cane to the plaintiff-company at the minimum price fixed by the Central Government by the notifications issued by it, so long as there is no other price fixed by the Central Government by its notifications. 17. In the event of my being wrong in the view which I have taken above, and if the view taken is that the stipulation in the contract in regard to the price at which sugar-cane is to be supplied by the defendant-Corporation to the plaintiff-company is not stated in clear terms in the contract, the question that arises is whether it is permissible to the Court to consider the circumstances surrounding the entering into of the said contract as an aid to its interpretation by virtue of the provisions of proviso (6) to Section 92 of the Evidence Act. In the event of my coming to the conclusion that extrinsic evidence is permissible under the said proviso, I would further have to consider what is the interpretation that should be put upon the said stipulation after considering the extrinsic evidence in the present case. It may be mentioned that no oral evidence has been led in this case by either party, and the extrinsic evidence on which Mr. Nariman has relied consists entirely of statutory Acts. Orders and Notifications, and of the documentary evidence tendered as exhibits in the present case, as well as the admissions made by or on behalf of the defendant-Corporation in the correspondence as well as at the Bar in the course of the arguments. A large number of authorities were cited before me in regard to the first of those questions viz. A large number of authorities were cited before me in regard to the first of those questions viz. whether extrinsic evidence is admissible under proviso (6) to Section 92 of the Evidence Act as an aid to the interpretation of the stipulation in regard to price in the contract between the parties. Whilst I do not propose to deal with each and every one of those authorities, I must proceed to consider such of them as, in my opinion, merit discussion. 18. Mr. Nariman has relied on the decision of the Privy Council in the leading case of Balkishen Das v. W. E. Legge, (1900) 27 Ind App 58 (PC) which arose out of a suit for redemption of mortgage filed by the respondent in which the question was whether certain deeds of conditional sale in respect of a talook with a proviso for re-purchase on a fixed date were in reality mortgages. the evidence of the respondent ,and of a person named Man, was admitted by the trial judge for proving the real intention of the parties, and was to some extent relied upon in both the lower Courts. The Privy Council held that that evidence was not admissible for the purpose of construing or ascertaining the intention of the parties in view of the provisions of S. 92 of the Indian Evidence Act. After setting out the terms of that section, Lord Davey in his speech said that it was conceded that the said case could not be brought within any of the provisos to that section and that the cases in the English Court of Chancery which were referred to by the learned Judges in the High Court of Chancery which were referred to by the learned Judges in the High Court did not have any application to the law of India as laid down in Acts of the Indian Legislature. Curiously enough, however, Lord Davey then proceeded to lay down as follows (at p. 65): ""The case must, therefore, be decided on a consideration of the contents of the documents themselves, with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts."" The latter part of that statement reproduces the identical terms of proviso (6) to Section 92 of the Evidence Act, though it had been stated by Lord Davey a little earlier in his speech that none of the provisos to Section 92 of the Evidence Act was applicable. In point of fact, therefore, the decision in the case of (1900) 27 Ind App 58 (PC) was based on the contents of the documents in question construed in the light of the extrinsic evidence permissible under proviso (6) to Section 92 of the Evidence Act, and I construe the said decision as authority for the proposition that the said proviso can be restored to as an aid to the interpretation of a document the terms of which are not clear. It was by resorting to that mode of construction that the Privy Council upheld the decision of both the lower Courts that the transaction in question was intended to be and was a mortgage by conditional sale and that the respondent was entitled to a decree for redemption. 19. An identical question as to whether a document in the form of a sale deed was in reality a mortgage arose for decision in several other cases and it would be convenient to dispose of four of those cases which were cited before me in the context of the decision in the case of (1900) 27 Ind App 58 (PC) which I have just discussed. The first of them in chronological order is the decision of the Privy Council in the case of Baijnath Singh v. Hajee Vally Mahomed, 27 Bom LR 787 = (AIR 1925 PC 75) in which the same question as in Balkrishen Das' case arose not, however, in relation to immovable property, but in relation to certain shares. The first of them in chronological order is the decision of the Privy Council in the case of Baijnath Singh v. Hajee Vally Mahomed, 27 Bom LR 787 = (AIR 1925 PC 75) in which the same question as in Balkrishen Das' case arose not, however, in relation to immovable property, but in relation to certain shares. It may be mentioned that though there were two sets of transactions in dispute in the said case, one called the Jamal transactions, the Privy Council was concerned, as the statement of fact (at p. 790 of Bom LR) = (at p. 77 of AIR) shows, only with the Jamal transactions. The privy Council referred (at p. 791 of Bom LR) = (at pp. 77-78 of AIR) to their own earlier decision in the leading case of (1900) 27 Ind App 58 (PC) and to Section 92 of the Evidence Act, but held that neither the said decision nor the said section had any application to the case before them in the view which their Lordships took to the same. It was stated by the Privy Council (at p. 791 of Bom LR) = (at pp. 77-78 of AIR) that Section 92 merely prescribes a rule of evidence bur ""does not fetter the Court's power to arrive at the true meaning and effect of a transaction in the light of all the surrounding circumstances"", and their Lordships then proceeded to deal with those circumstances and held that Jamal transactions in question were mortgages and the plaintiff was entitled to redeem the same. In Baijnath Singh's case 27 Bom LR 787 = (AIR 1925 PC 75) the Privy Council had no doubt held Section 92 of the Evidence Act to be inapplicable, but in considering evidence of the surrounding circumstances for the purpose of arriving ""at the true meaning and effect"" of the transactions in question, the Privy Council has in effect applied proviso (6) to Section 92, though it has not in terms referred to the same. That was a course which was permissible in view of exceptional nature of the relation which proviso (6) bears to substantive part of the section, as will be pointed out later on in this judgment. Proviso (6) to Section 92 has been constructed by a Division Bench of this Court in the case of Martand v. Amritrao, 27 Bom LR 951 = (AIR 1925 Bom 501). Proviso (6) to Section 92 has been constructed by a Division Bench of this Court in the case of Martand v. Amritrao, 27 Bom LR 951 = (AIR 1925 Bom 501). In that case also, the question was precisely the same as in the case of (1900) 27 Ind App 58 (PC) viz. whether the document in the said case which was in the form of a sale deed was in reality a mortgage, the suit being one for redemption of the alleged mortgage. Curiously enough, however, the decision of the Privy Council in the case of (1900) 27 Ind App 58 (PC) has not been referred to in the judgment of the Division Bench. Sir Norman Macleod C. J. delivering the Judgment of the Division Bench, observed that when the District Judge had proceeded to discuss the circumstantial evidence with regard to the transaction in order to satisfy himself that it was in the nature of a mortgage, probably had in mind proviso (6) to Section 92 of the Evidence Act and that the language of that proviso was rather vague and then proceeded to state as follows (at p. 957 of bom LR) = (at p. 503 of AIR) :- ""It is true that evidence of the circumstances surrounding a document is admissible; but it is admissible only for the purpose of throwing light on its meaning. It words, we think, be not permissible to consider the surrounding circumstances with a view to holding that a document which on the face of it is a sale deed was intended to operate as a mortgage."" The learned Chief Justice then proceeded to observe that there could otherwise be no certainty as to the proper construction to be placed on a document which to all appearance was unambiguous. The Division Bench, therefore, held that the transaction in question was a sale and allowed the appeal and dismissed the plaintiff's suit. The question as to whether the transaction in question was a mortgage by conditional sale, or a sale with a condition of repurchase arose again in the case of Chunchun Jha v. Ebadat Ali, (1955) 1 S. C. R. 174 = ( AIR 1954 SC 345 ). Bose J. delivering the judgment of the Court referred to the case of (1900) 27 Ind App 58 (PC) and stated as follows (at. Bose J. delivering the judgment of the Court referred to the case of (1900) 27 Ind App 58 (PC) and stated as follows (at. p. 177 of SCR) = (at p. 346 of AIR): ""But certain broad principles remain. The first is that the intention of the parties is the determining factor: Sec (1900) 27 Ind App 58 (PC). But there is nothing special about that in this class of cases and here, as in every other case where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous inquiry into what was thought or intended is ruled what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant, but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. "" After discussing the various clauses of the deed in question before them, Bose J. stated (at p. 180 of SCR) = (at p. 347 of AIR) that it did lack the precision of a practised hand and that probably accounted for its ambiguities and that there was ambiguity is patent from what he had said earlier in the judgment in discussing the various clauses of the deed. Bose J. then proceeded to discuss (at p. 181 et seq of SCR) = (at p. 348 of AIR) the applicability of the provisions of Section 58 (c) of the Transfer of Property Act to the facts of the said case and ultimately held that, taking everything into consideration, their Lordships were of opinion that the deed in question was a mortgage by conditional sale under Section 58 (c) of the Transfer of Property Act. A careful consideration of the judgment of Bose J. shows that the decision in the said case is not based only on the terms of Section 58 (c) of the Transfer of Property Act and that the principle which he has laid down in the passage (at p. 177 of SCR) = (at p. 346 of AIR) quoted above, is enunciated by him as a broad principle which has nothing special about the class of cases to which the said case related. Pandit Chunchun Jha's case shows that the real question which the Court must first consider is what is the legal effect of the words which the parties have used, and that it is only if the language employed is not clear that it is permissible to look to the surrounding circumstances to determine what was intended. There is one more case in which the same question as to whether a transaction, ostensibly of sale, should be regarded as a mortgage, arose in the case of Bhaskar Waman Joshi v. Narayan Rambilas, (1960) 2 SCR 117 = ( AIR 1960 SC 301 ), which arose out of a suit for redemption filed by the transferors. Shah J., delivering the judgment of the Court, observed (at p. 122 of SCR) = (at p. 304 of AIR) that the question whether by the incorporation of a condition of the nature contemplated by Clause (c) of Section 58 of the Transfer of Property Act a transaction, ostensibly of sale, may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The learned judge then proceeded to state (at p. 123 of SCR) = (at p. 304 of AIR) as follows:- ""The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous they must, in the light of the evidence of surrounding circumstances, be given their true legal effect. If the words are plain and unambiguous they must, in the light of the evidence of surrounding circumstances, be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may, by law, be permitted to be adduced to show in what manner the language of the deed was related to existing facts."" 20. The learned Advocate-General Mr. Seervai has sought to distinguish the line of cases headed by (1900) 27 Ind App 58 (PC) which has been discussed above, on the ground that they fall into a distinct class in which the transaction had a formal aspect and a real aspect, and extrinsic evidence was admitted to show the real aspect or nature of the transaction. I do not think there is any basis for the distinction which the learned Advocate-General sought to make for, as stated by no less an authority than the Supreme Court itself in Pandit Chunchun Jha's case, 1955-1 SCR 174 = ( AIR 1954 SC 345 ) cited above. The decision in those cases proceeds on a broad principle which had nothing special about the class of cases in which the question whether a transaction which was ostensibly a sale was in reality a mortgage arose. Moreover, the same principles in regard to the admissibility of extrinsic evidence as an aid to the interpretation of a document have been laid down in other decisions which do not fall within that class and which I must now proceed to discuss. In the case of Ramgopal v. Nandlal, (1950) 1 SCR 766 = ( AIR 1951 SC 139 ) one of the main questions was whether a deed of transfer described as a Tamaliknama by which two items of property, which were the subject-matter her ""malik"" gave her an absolute interest in those properties which was heritable and alienable, or whether there was anything in the surrounding circumstances to cut down the full proprietary rights that the word ""malik"" ordinarily imported and the said Me"