JUDGMENT :- This is original plaintiff's second appeal directed against the decision of the learned Assistant Judge Mehsana given on October 26, 1967 in Regular Civil Appeal No. 19 of 1966. The learned Judge has thereby allowed the appeal of the respondent-defendant and dismissed the plaintiff's Regular Civil Suit No. 27 of 1965 which suit was decreed by the learned Civil Judge, Kalol, by his judgment and decree dated December 27, 1965. The plaintiff's suit was for redemption of an alleged mortgage Ex. 20 dated June 22 1953. The said document is an ostensible sale-deed. There is a condition incorporated in the document providing for the reconveyance of the property to the plaintiff on a fixed date which would fall on the completion of five years of the execution of the ostensible saledeed. The plaintiff's case was that the said transaction was a mortgage by conditional sale and not a sale outright with a condition of re-purchase. It was his case that by incorporation of the said condition, the transaction which was ostensibly a sale was in its true character a mortgage transaction. The learned trial Judge construed the suit document Ex. 20 in the context of the surrounding circumstances, namely :- I. That certain date was fixed for repayment and for reconveyance. II. That the price fixed originally was Rs. 1,551/- but as the plaintiff was to meet the expenses of the registered document, the consideration was raised to Rs. 1,650/-. III. That the amount of consideration which was Rs. 1,650/- was inadequate for a sale transaction as there was scarcity of land in the area and the land was costly and no land-holder was prepared to sell the same. IV. That the defendant did not reply to plaintiff's notice Ex. 24 dated 15-08-64 which was admittedly served on, the defendant and in which notice the plaintiff had alleged that the transaction was one of mortgage by conditional sale. V. That the plaintiff was in need of money to meet his debts. VI. That the defendant did not produce the previous document which was executed in the defendant's account-book and which would have shown the real nature of the transaction. VII. That the defendant did not hold a money-lending licence. V. That the plaintiff was in need of money to meet his debts. VI. That the defendant did not produce the previous document which was executed in the defendant's account-book and which would have shown the real nature of the transaction. VII. That the defendant did not hold a money-lending licence. Having regard to these circumstances and in the context of the language used in the document, the learned trial Judge found that the real character of the document was a mortgage by conditional sale and not a sale outright with a condition of repurchase. He thus passed a preliminary decree of redemption to be drawn under Order 34, Rule 7 of the Code of Civil Procedure and in Form No. 7B of Appendix D of the Code. In defendant's appeal, the learned Assistant Judge, Mehsana has found that the language of the document was not ambiguous and that even otherwise the circumstances showed that the document was one of outright sale. He thus accepted the appeal of the defendant and dismissed the suit and reversed the preliminary decree of redemption of the property that was passed by the learned trial Judge. It is against this decision that the present second appeal is directed. 2. It is not in dispute that the parties reside in village Amja of Taluka Kalol, District Mehsana. They are owners of neighbouring agricultural lands. The transaction which is evidenced by registered document Ex. 20 dated June 22, 1953 and which is the suit document was preceded by negotiations between the parties to which defendant's witness Ambalal examined at Ex. 39 was a party. Ambalal who happended to be the Sarpanch of the Gram village was instrumental in bringing about the transaction. A 'Kachha' writing for this transaction on a consideration of Rs. 1,551/- was made in the account-books of the defendant and this was written by the said witness Ambalal and attested as admitted by him in his evidence. This writing has not been produced by the defendant, although It was in his possession. According to the plaintiff if the writing had been produced, it would have shown the real character of the transaction as one of mortgage by conditional sale. This writing has not been produced by the defendant, although It was in his possession. According to the plaintiff if the writing had been produced, it would have shown the real character of the transaction as one of mortgage by conditional sale. The plaintiff was in need of money at the relevant point of time as admitted by witness Ambalal who has stated that the plaintiff wanted money for paying his debts to Chandubhai and of some others. The defendant did not possess the money lending licence as admitted by him in his evidence at Ex. 32 in paragraph 8. It was in these circumstances that the suit document came to be executed on the day next to the writing taken by the defendant in his own account-book and not now produced in Court. 3. It is settled law that the question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase must be decided on its own facts. In such cases, the intention of the parties is the determining factor as observed by the Supreme Court in Chunchun Jha v. Ebadat Ali. AIR 1954 SC 345 . The Supreme Court has observed that the rule of law on this subject is one dictated by commonsense : 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 instrument? The Supreme Court has further observed that 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. 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 : 4. 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 : 4. This position of law has been reaffirmed by the Supreme Court in Bapuswami v. N. Pattay. AIR 1966 SC 902 wherein the Supreme Court has, inter alia, observed. "The distinction between 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 question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the document viewed in the light of surrounding circumstances." It has been contended by Mr. Jhaveri, learned advocate appearing on behalf of the appellant, that the real nature of the transaction is one of mortgage by conditional sale and not of sale outright with a condition of repurchase. For the purpose, he has invited my attention to the language used in the document itsell Ex. 20. Mr. M.B. Shah appearing on behalf of the respondent has contended to the contrary. Mr. Shah's submission is that the instrument, namely document Ex. 20, is not ambiguous and legal effect must be given to the language used therein and surrounding circumstances should not be taken into consideration in this situation. He has alternatively contended that none of the surrounding circumstances show that the real character of the transaction was a mortgage by conditional sale. These are two rival contentions which are urged before me and relevant circumstances in the evidence on the point have been discussed before me. 5. Now, the instrument Ex. 20 which is in Gujarati language and which had been incorporated by the learned Assistant Judge in paragraph 12 of his judgment and by the trial Judge in paragraph 16 of his judement is styled as conditional sale of land. The document is executed on a valid stamped Paper and has been registered. The document begins with the statement that Madhaji Ganeshji, an agriculturist (plaintiff herein) executes the document in favour of Patel Magandas Bechardas, an agriculturist (defendant herein) on 22-06-1953. "To wit: I have taken from you Rs. The document is executed on a valid stamped Paper and has been registered. The document begins with the statement that Madhaji Ganeshji, an agriculturist (plaintiff herein) executes the document in favour of Patel Magandas Bechardas, an agriculturist (defendant herein) on 22-06-1953. "To wit: I have taken from you Rs. 1,650/- one thousand six hundred and fifty, which have been received and in consideration of this, one-third of our 'Barkhali' land situated in the Sim of village Amja and consisting of one field known as 'Katardu' bearing survey No. 298 and admeasuring Bigha 1 Vasa and Anna 2/3 together with my right to 'draw 1/3rd water from the 'Pucca' well situated therein and also with the standing trees is conveyed to you and Possession handed over. The land is conveyed to you as by way of sale (Vechan na Dave) till the sun and the moon shine and you are entitled to use it as by way of sale and to give it in mortgage or gift." Some other parts of this document following this recital are not material. Then there is a condition which is incorporated and which provides that if the executor of the document pays the amount of the consideration of the sale on completion of five years from the date of execution of the document, the person in whose favour the document is executed (defendant) was to reconvey the land at the cost of the executor of the document ; that if the payment was not made on the appointed day the executor will not have the right to purchase the land. This, in substance, is the English translation of the Gujarati material extracts of the document which are incorporated in the judgments of the Courts below. 6. It will appear from these relevant recitals in the suit document that there is a condition incorporated therein and that condition is to reconvey the land if the payment of the consideration amount is made on the appointed day, that is to say on completion of the period of five years from the date of the execution of the document. The document is thus of an ostensible conditional sale and was intended as security for the debt. The document is thus of an ostensible conditional sale and was intended as security for the debt. Section 58 (c) of the Transfer of Property Act, 1882 provides : "(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." It is clear that in document Ex. 20 the condition is embodied that on payment of the consideration amount being made on a certain date, the ostensible buyer shall transfer the property to the seller. It is true that mere incorporation of such a condition would not mean that the transaction was of necessity intended to be a mortgage by conditional sale or vice versa. The form in which the deed is clothed is not decisive. The real character of the transaction has to be ascertained from the document itself in light of the surrounding circumstances. If the language is plain and unambiguous, it must in the light of the surrounding circumstances be given its true legal effect. As aforesaid the suit document begins with the material recital that the executor of the document (plaintiff herein) has taken Rs. 1,650/- from the person in whose favour the document is executed. It is then stated that the amount is received. It is then significantly stated that in consideration of the receipt of this amount (Tena Avejma), the executor was executing the document in respect of the stated property and was handing over Possession thereof to him. This is the language employed in the document and indicates the real character of the transaction to be not of an outright sale, but of a mortgage by conditional sale. The clause providing for reconveyance of the land on a certain date on the payment of same amount of consideration namely Rupees 1,650/-, is significant. It is a condition providing for reconveyance and is embodied in the same document. The clause providing for reconveyance of the land on a certain date on the payment of same amount of consideration namely Rupees 1,650/-, is significant. It is a condition providing for reconveyance and is embodied in the same document. The language used in and the tenor of the document is not such as are ordinarily used in an outright sale transaction. In a sale transaction, the executor will say that he is selling the property to the person in whose favour the document is executed for the stated consideration and not that for a consideration taken by him he is giving the land and handing over possession thereof. 7. It was contended by Mr. M. B. Shah for the respondent that the document in question was written not by a Solicitor or an advocate, but by a bond writer in a village in Mehsana District and, therefore, the language used should be considered liberally as in a mofussil pleading. It is true that the document is written by one Ramanlal M. Ganesh as stated in the document. Presumably he was a bond-writer but the document has been executed in Kalol which is a town in Mehsana District and registered before the Sub-Registrar of Kalol. Ordinarily the bond-writer would know the essentials and the difference between the two transactions namely mortgage and a sale. The bond-writer has not been examined to show what was the real intention of the parties. In absence of his evidence. I must take it that the document has been drawn up by a competent person who knew the distinction between a sale and a mortgage. Assuming that the document is ambiguous, the intention must be gathered from the contents of the document with permissible extrinsic evidence on record to show in what manner the language of the deed was related to existing facts. Such facts which, in my opinion, would clinch the issue are that on the day previous to the execution of the document Ex. 20 the writing was made in the account-book of the defendant himself and this was for the consideration of Rs. 1,551/- and which was entered into by defendant's witness Ambalal Prabhudas Ex. 39 who had negotiated the transaction. 20 the writing was made in the account-book of the defendant himself and this was for the consideration of Rs. 1,551/- and which was entered into by defendant's witness Ambalal Prabhudas Ex. 39 who had negotiated the transaction. As aforesaid, Ambalal Prabhudas has stated that the plaintiff wanted money for paying his debts of Chandubhai and of others and that the plaintiff had told him that he wanted to sell away his field. He then contacted the defendant. The price was fixed at Rs. 1,551/-. 'Kachha' writing was made in the book of account of the defendant, which he had written and attested. The document, namely the writing in the defendant's account-book if produced, would have shown the real nature of the transaction- Ambalal has admitted that the writing was in the possession of the defendant. He has stated in paragraph 7 of his deposition that it was a fact that the plaintiff had a right to redeem the land at the expiry of five years. He has stated that if the defendant had not kept this land, nobody else would have advanced him any money. The defendant himself was examined at Ex. 32 and he has, in paragraph 8 of his deposition in cross-examination, stated that it was a fact that in the beginning the plaintiff came "to place the field" with him for Rs. 1,551/-and a writing for this was passed in his book of account. In the re-examination made by the Court, the defendant tried to say that by using the words "placing of the field" he meant selling of the field. But his evidence read as a whole clearly indicates that what the witness meant to say was that the field was to be placed with him meaning 'kept' with him as stated by Ambalal. When this particular answer which is a material circumstance is kept in view while reading the text of the document itself and the beginning portion thereof referred to by me above, it is clear that the transaction intended to be was one of mortgage by conditional sale. The other existing fact namely, that the plaintiff was in need of money as he had to pay debt of one Chandubhai and of some others as admitted by defendant's own witness lends support to this view. The other existing fact namely, that the plaintiff was in need of money as he had to pay debt of one Chandubhai and of some others as admitted by defendant's own witness lends support to this view. The other material circumstance that the defendant did not possess the money lending licence indicates the reason why the document was couched in the language of sale with a condition of re-purchase, but the real character of the transaction is one of mortgage. Still another circumstance to be taken into account is that although the plaintiff had served the defendant with notice Ex. 24 demanding redemption of the property stating that it was a mortgage transaction, the defendant did not send any reply to this notice which was admittedly served on him. In any view of the matter, therefore the suit document must be construed as one of a mortgage by conditional sale. 8. Mr. Shah has contended that there was no previous relationship between the parties as of a debtor and a creditor and, therefore, the transaction must be treated as of an out-right sale with a condition of re-purchase. But, in my opinion, even if it were so, that circumstance would not make any the difference to the ultimate conclusion to be arrived at in this case, having regard to the aforesaid discussion. Mr. Shah contended that the consideration is not shown to be inadequate and that the period of reconveyance was a very short one, thus indicating that the transaction was one of sale with a condition of repurchase. I cannot accept Mr. Shah's contention that the short span indicates that way. Inadequacy of the consideration or adequacy thereof is not the circumstance which I am taking into account in arriving at the final conclusion. I am not taking into account some other circumstance found by the learned trial Judge in favour of this view. I am resting my judgment only on the language employed in the suit document itself, the tenor of the document and the three surrounding circumstances referred to by me in this judgment. I must, therefore, accept Mr. Jhaveri's contention and reject the one raised by Mr. Shah. I am resting my judgment only on the language employed in the suit document itself, the tenor of the document and the three surrounding circumstances referred to by me in this judgment. I must, therefore, accept Mr. Jhaveri's contention and reject the one raised by Mr. Shah. Accordingly, I allow this appeal and set aside the decree passed by the learned Assistant Judge Mehsana, in Regular Civil Appeal No. 19 of 1966 and restore the preliminary decree passed by the learned Civil Judge, Kalol, in Regular Civil Suit No. 27 of 1965. There will be no order as to costs in this appeal.