Judgement PATHAK, J. :- This appeal is by the Defendants. 2. The plaintiffs case in brief is that 8 Bighas of land described in the schedule to the plaint hereinafter referred to as the suit land, belonged to the Plaintiff No. 1, late Bidya Singh and late Basanta Singh, who borrowed Rs. 500/- from Late Madan Singh, predesessor-in-interest of the Defendants and executed a mortgage by conditional sale (Kotabaddha) in respect of the suit land on 21st Magh, 1331 B. S. corresponding to February 3, 1925 with the stipulation that the mortgagee would reconvey the suit land on payment of the said sum of Rs. 500/- within one year in favour of the mortgagors. Plaintiff No. 2 is the son and legal heir of Late Bidya Singh and Plaintiff No. 3 is the son and legal heir of Late Basanta Singh. Madan Singh died leaving Kameswar Singh. Defendant No. 1, widow Gidani Debi Defendant No. 2, daughter Parbati Debi Defendant No. 3 and minor son Krishna Babu Singh Defendant No. 4 and minor daughter Kutuma Debi Defendant No. 5 as his legal heirs. Defendants 6 to 12 with knowledge of the terms of the mortgage by conditional sale, have possessed some portion of the suit land by right of exchange. The Plaintiffs homestead is situated on about 1 Bigha of the mortgaged land and as they are entitled to redemption of the mortgaged land at any time, the Plaintiffs kept their homestead under their possession and they are living there even now. Late Madan Singh with whom the land was mortgaged took the remaining about 7 Bighas of the mortgaged land under his possession. The Plaintiffs requested Madan Singh several times during his lifetime to release the mortgaged land from Kot mortgage by accepting the mortgage money. But Madan Singh evaded the matter on various pleas and in the meantime he died. Hence the Plaintiffs requested the Defendants also several times for releasing the suit land from the Kot mortgage, but they have not yet released the suit land. In the circumstances the Plaintiffs have brought the suit for redemption of the suit land from the Kot mortgage on payment of the mortgage money amounting to Rs. 500/- and for recovery of khas possession thereof. 3. Defendants 1, 2, 3 and 6 have filed a joint written statement and contested the suit. 4. In the circumstances the Plaintiffs have brought the suit for redemption of the suit land from the Kot mortgage on payment of the mortgage money amounting to Rs. 500/- and for recovery of khas possession thereof. 3. Defendants 1, 2, 3 and 6 have filed a joint written statement and contested the suit. 4. The Defendants have averred that there is no cause of action for the suit, that the suit is not maintainable in law in its present form, and that it is barred by limitation. The defendants case is that the Plaintiff No. 1, late Bidya Singh, and late Basanta Singh, while alive, sold the suit land by executing a registered sale deed dated 21st Magh, 1331 B. S. corresponding to 3-2-1925 for a consideration of Rs. 500/- and delivered possession thereof. At the request of the vendors, a condition was subsequently inserted in the sale deed to the effect that if within one year from the date of execution of the sale deed the vendors or their successors repaid the consideration money, the vendee or his successors would execute a sale deed in respect of the said land without any objection in favour of the vendors or their successors. That the transaction was a sale outright with a condition of repurchase and it was never a mortgage by conditional sale (Kot Kabala) as alleged. That time was of the essence of the contract and before the stipulated period expired Madan Singh requested Plaintiff No. 1, Bidya Singh and Basanta Singh to repay the sale price in terms of the condition of repurchase but they refused to take back the land by repaying the sale price representing that they had no necessity for the suit land. Thereafter Madan Singh with knowledge and consent of the Vendors got his name mutated in respect of the suit land in 1927 by right of purchase and possessed the same by paying the Government revenue etc. from year to year. The Plaintiff No. 1 or the predecessors-in-interest of Plaintiff Nos. 2 and 3 never objected to the mutation and possession of Madan Singh or his successors. Madan Singh possessed the suit land along with his brothers and after Madan Singh, his successors, that is the Defendants have been in possession of the suit land. 5. from year to year. The Plaintiff No. 1 or the predecessors-in-interest of Plaintiff Nos. 2 and 3 never objected to the mutation and possession of Madan Singh or his successors. Madan Singh possessed the suit land along with his brothers and after Madan Singh, his successors, that is the Defendants have been in possession of the suit land. 5. On the pleadings of the parties the following issues were framed :- (1) Is there any cause of action? (2) Is the suit maintainable in its present form? (3) Is the suit bad for estoppel, waiver and acquiescence? (4) Is the suit bad for non-joinder of parties? (5) Is the suit barred by limitation? (6) Whether the document in question is a sale deed or a mortgage deed? (7) Are the Plaintiffs entitled to a decree as claimed? (8) To what relief, if any, are the parties entitled? 6. On consideration of the evidence on record the learned Munsiff held that the deed Ex. A dated 3-2-1925 was an out and out sale deed and it was not a mortgage deed and as such he dismissed the Plaintiffs suit. On appeal the learned Assistant District Judge found that the transaction was a mortgage by conditional sale and it was not out and out sale and accordingly he reversed the judgment and decree of the learned Munsiff and decreed the Plaintiffs suit. Hence this appeal by the Defendants. 7. The point that arises for consideration in the instant case is whether the transaction under the registered deed dated 3-2-1925, Ex. A, is an out and out sale with a condition of repurchase or it is a mortgage by conditional sale. 8. Under Section 54 of the Transfer of Property Act sale is defined as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. 9. Under Section 58 (c) mortgage by conditional sale has been defined as follows :- "58 (c) Where the mortgagor ostensibly sells the mortgaged property :- on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller. the, transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale : Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale." 10. From the definitions of sale and mortgage, it is found that "transfer of ownership" marks the difference between a sale and a mortgage. In a mortgage the mortgagee holds the estate merely as a security for the debt, and not absolutely, and he has therefore only a qualified and limited interest in it, confined to the object of satisfying his debt, and so long as the right of redemption remains in the mortgagor, the full proprietary interest and right cannot be said to have passed from him to the mortgagee. In a sale, on the other hand, the proprietary rights pass in their full sense and absolutely vide Inder Sein v. Naubat. (1885) ILR 7 All 558 (FB). 11. In Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345 , delivering the judgment of the Supreme Court, Bose, J. observed as follows :- "The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation. There are numerous decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them. We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts. But certain broad principles remain. The first is that the intention of the parties is the determining factor; see Balkishen Das v. Legge, (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 enquiry into what was thought or intended is ruled out. If the words are express and clear, effect must be given to them and any extraneous enquiry into 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. As Lord Cranworth said in - Alderson v. White, (1858) 44 ER 924 at p. 928 "The rule of law on the subject is one dictated by common sense; that prima facie an absolute conveyance, containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase ............ In every such case the question is, what, upon a fair construction, is the meaning of the instruments?" Their Lordships of the Privy Council applied this rule to India in - Bhagwan Sahai v, Bhagwan Din, (1890) 17 Ind. App 98 at p. 102 (PC) and in - Jhanda Singh v. Wahid-ud-din. AIR 1916 PC 49 at p. 54. The converse also holds good and if, on the face of it, an instrument clearly purports to be a mortgage it cannot be turned into a sale by reference to a host of extraneous and irrelevant considerations. Difficulty only arises in the border line cases where there is ambiguity. Unfortunately, they form the bulk of this kind of transaction. Because of the welter of confusion caused by a multitude of conflicting decisions the legislature stepped in and amended Section 58 (c) of the Transfer of Property Act. Unfortunately that brought in its train a further conflict of authority. But this much is now clear. If the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But the converse does not hold good, that is to say the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be sale. But the converse does not hold good, that is to say the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be sale. If the condition of repurchase is embodied in a document that effects or purports to effect the sale, then it is a matter for construction which was meant. The legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore, it is reasonable to suppose that persons, who after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words; and if the conditions of Section 58 (c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage." 12. In Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal, AIR 1960 SC 301 , Shah, J., as he then was, delivering the judgment of the Supreme Court, while interpreting Section 58 (c) of the Transfer of Property Act, observed as follows :- "The proviso to this clause was added by Act XX of 1929. Prior to the amendment there was a conflict of decisions on the question whether the condition contained in a separate deed could be taken into account in ascertaining whether a mortgage was intended by the principal deed. The Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale. But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended. The question whether by the incorporation of such a condition 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 circumstances that the condition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the degree of formality attending upon the transaction. The circumstances that the condition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the degree of formality attending upon the transaction. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property. As pointed out by the Judicial Committee of the Privy Council in Narasingerji Gyanagerji v. P. Parthasaradhi, 51 Ind. APP. 305 : (AIR 1024 PC 226), the circumstance that the transaction as phrased in the document is ostensibly a sale with a right of repurchase in the vendor, the appearance being laboriously maintained by the words of conveyance needlessly iterating the description of an absolute interest or the right of repurchase bearing the appearance of a right in relation to the exercise of which time was of the essence is not decisive. 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 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 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. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given. Evidence of contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible." 13. In the light of the principles laid down by the Supreme Court in the above two cases let us examine the contents of Ex. A in the instant case in order to interpret the same. 14. The proviso to clause (c) of Section 58 was introduced by the Transfer of Property (Amendment) Act, 1929 (Act XX of 1929). 15. The deed Ex. A which is required to be interpreted in the instant case was executed on 3-2-1925 prior to the introduction of the proviso in Section 58 (c). 16. From the language of the proviso to clause (c) of S. 58, as well as that interpretation given to it by the Supreme Court in the decisions referred to above, it is quite clear that after the introduction of the proviso to clause (c) of Section 58, if the sale and the agreement to repurchase are embodied in two separate documents, then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But it is also clear that the mere fact there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in a document that effects or purports to effect the sale, then it is a matter of construction as to what was meant by the document itself. So we have to construe the document Ex. A itself whether it is an out and out sale with a condition of repurchase or it is a mortgage by conditional sale. 17. The first and foremost thing that requires decision is to find out the intention of the parties from the language that can be gathered from the recitals in the deed itself. If the words are express and clear, effect must be given to them and an extraneous enquiry into what was thought or intended is not permissible. The real question is what is the legal effect of the words used by the parties in the deed. If the words are express and clear, effect must be given to them and an extraneous enquiry into what was thought or intended is not permissible. The real question is what is the legal effect of the words used by the parties in the deed. If there is no ambiguity in the language employed in the deed, the intention, that is found from the language without any straining there of must be given effect to. If, however, there is ambiguity in the language used in the document, then the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be admissible in law to show in what manner the language of the deed was related to the existing facts. Oral evidence is not admissible in interpreting the terms of the deed. Evidence of contemporaneous conduct is admissible as a surrounding circumstance but evidence as to subsequent conduct of the parties is not admissible. 18. Mortgage by conditional sale postulates the creation of the transfer by the relation of mortgagor and mortgagee, the price being charged on the property conveyed. But in a sale with a condition of repurchase, there is no relation of debtor and creditor nor is the price charged upon the property conveyed. A sale with a condition of repurchase is only subject to an obligation to retransfer the property within the period specified. The distinction between the two transactions is the relationship of debtor and creditor and transfer being a security for the debt. The form in which the deed is clothed is not decisive. If the words are plain and unambiguous, they must be given their true legal effect. 19. The document Ex. A which we are to interpret is in the following terms. (We have omitted the unnecessary words and numbered the paragraphs for convenience sake) :- "(i) This sale deed of elam land executed by Sri Bidya Singh. Shri Basanta Singh and Shri Khaichow Singh, sons of late Raghab Singh in favour of Shri Madan Singh, son of Girigo Singh sheweth :- (ii) We, Shri Bidya Singh. Shri Basanta Singh and Khaichow Singh sons of late Raghab Singh are the owners and possessors of 8 Bighas of land with the boundaries described below out of the cadestral survey dag Nos. Shri Basanta Singh and Khaichow Singh sons of late Raghab Singh are the owners and possessors of 8 Bighas of land with the boundaries described below out of the cadestral survey dag Nos. 126/7/8/38/44 of Periodic Elam Patta No. 2459/4/of village Katabari, Mouza Pratapgarh under the Sub-Registry Office, Patherkandi; (iii) Now since we are in need of money and we having received from you in cash Rs. 500/- being the proper value of the abovementioned land voluntarily sell the said land to you and relinquish all the rights of ours and our successors therein and you, your sons and grand sons will enjoy and possess as the owners of the said land on payment of Government revenue and local rates, and you and your successors will be entitled to enjoy the said land and have the right of making gift, sale or transfer otherwise, (iv) We or our successors will have no objection to the mutation of your names in the sold land and partition etc. thereof. We will register this deed within the prescribed time. Finish 3-2-1925 A. D. 21st Magh 1331 B. S. (v) Schedule of the land with boundaries :- East-Longai river West-Garden Nulla North-Land of Chaityanya Paul South-Land of Ibung Singh and others - within the aforesaid boundaries 8 Bighas of land only. (vi) It may be expressly mentioned that if we or our successors return the price of the sold land to you or your successors within one year from today then you will not be able to raise any objection in executing a sale deed in our favour in respect of the sold land." 20. On consideration of the language in Ex. A as quoted above it is quite clear that the executants of the deed sold 8 Bighas of land described in the deed at Rs. 500/- which was stated to be the proper price of the same. The recitals in the deed clearly and unambigously show that the executants having received Rs. 500/- which was the adequate sale price of the land transferred ownership and possession of the same in favour of the vendees and relinquished all right, title and interest in the land sold, in favour of the vendees. The recitals show unambiguously that the vendors intended to transfer the ownership of the land. 500/- which was the adequate sale price of the land transferred ownership and possession of the same in favour of the vendees and relinquished all right, title and interest in the land sold, in favour of the vendees. The recitals show unambiguously that the vendors intended to transfer the ownership of the land. After the writing of the sale deed was completed in the usual way, a clause of repurchase was incorporated to the effect that if within one year from the date of execution of the sale deed, the sale price is returned by the vendor or their successors to the vendee or his successors, then the vendees will have to reconvey the sold land to the vendors. 21. In their written statement in para 9, the Defendants have stated that the vendors of Ex. A sold the land in question absolutely for proper value fixed at Rs. 500/- and relinquished their title and possession and it was a sale outright; but at the earnest request of the vendors, the clause of repurchase was incorporated. Looking at the original sale deed it is clearly found that the clause of reconveyance was inserted after writing of the sale deed was completed inasmuch as the ink with which the clause of repurchase Chase was written is quite different from the ink with which the deed was mainly written. 22. From the language used in the deed Ex. A, it is abundantly clear that the real intention of the executants was to make an absolute sale on receipt of the valuable consideration of Rs. 500/-and accordingly the title and ownership were transferred and possession was delivered. The language of the deed quite clearly and unambiguously shows that the executants sold the land absolutely and the clause of reconveyance was put in subsequently. 23. In our opinion the language of the deed Ex. A unambiguously shows that the transaction was an out and out sale with a condition of repurchase. From the clear language of the deed, it cannot, be construed as a mortgage by conditional sale. From the language used in Ex. A it cannot at all be inferred that the relation of debtor and creditor was created, the price being charged on the property conveyed. In the circumstances there is really no necessity for considering the surrounding circumstances to determine the intention of the parties. 24. From the language used in Ex. A it cannot at all be inferred that the relation of debtor and creditor was created, the price being charged on the property conveyed. In the circumstances there is really no necessity for considering the surrounding circumstances to determine the intention of the parties. 24. It may however, be observed that after execution of the deed, possession was delivered, mutation was effected on the 30-1-1927 by right of purchase, there is not a single word in the deed indicating mortgage by conditional sale, there is no stipulation of interest, and the sale price also is stated to be proper price in the document itself. The purchasers have been in long possession of the sold land as their absolute property since 1925 and the present suit was filed only in 1966. 25. The learned counsel for the respondents submitted that since the condition of repurchase was inserted in the sale deed it should be considered as a mortgage by conditional sale. But that submission is not at all acceptable for the reasons given above. The learned counsel for the respondents also submitted that the price was inadequate which went to show that it was not an out and out sale, but a mortgage. But this submission overlooks the material fact that in Ex. A itself it was stated that the suit land was sold at Rs. 500/- which was the adequate price of it. That apart, it is found that of the same Pratapgarh Mahal of village Katabari 4 Bighas of land were sold at Rs. 320/- in 1923, vide Ex. A (1), another 4 Bighas of the same mahal were sold for Rs. 240/- on 23-6-1939 vide Ex. A (2), another 3 Bighas of land of the same mahal were sold on 24-6-1932 for Rs. 180/- vide Ex. A (3). Thus the evidence on record clearly establishes that Rs. 500/- was adequate price of 8 Bighas of land in that Mahal in 1925. At the time of execution of Ex. A, there was no existence of debt. The period of reconveyance stipulated was only one year and the purchasers have been in possession since the purchase. There is no stipulation for interest on repayment. 500/- was adequate price of 8 Bighas of land in that Mahal in 1925. At the time of execution of Ex. A, there was no existence of debt. The period of reconveyance stipulated was only one year and the purchasers have been in possession since the purchase. There is no stipulation for interest on repayment. All these circumstances go to show that the transaction is an out and out sale with a condition of repurchase within the stipulated period and it is not a mortgage by conditional sale. 26. We have carefully gone through the judgment of the learned Assistant District Judge and we find that he has completely failed to appreciate correctly the law on the point and to apply the same to the facts of the case in a correct and legal way. The reasonings given by the learned Assistant District Judge for holding the transaction as a mortgage by conditional sale are not at all sustainable in law. 27. In the circumstances the judgment and decree of the learned Assistant District Judge are set aside and the judgment and decree of the learned Munsiff are restored. 28. The plaintiffs suit stands dismissed with costs. The appeal is allowed with costs. 29. BAHARUL ISLAM, J. :- I agree. Appeal allowed.