( 1 ) THE appellant is the first defendant respondent 1 is plaintiff, respondents 2 and 3 are defendants 2 and 3. Defendant 2 is the brother of the plaintiff and defendant 3 is his mother. Defendants 2 and 3 executed a sale deed ext. 43, in tavour of the first defendant on 3-5-1960 in respect of the suit property bearing RS. 207 of Gojage village, measuring 1 acne 12 guntas for a consideration of Rs. 1800 and delivered possession of the samr to defendant 1. The sale deed was executed not only on their own behalf but also on behalf of the plaintiff who was then a minor. The plaintiff filed a suit for redemption of the mortgage or in the alternative for specific performance of the contract of reconveyance since, according at him. Ext. 43 is a deed of mortgage by conditional sale, Both the lower Courts have held that the documtnt is a deed of mortgage by conditional sale and decreed the suit for redemption. ( 2 ) IN Chunchun Jha v. Ebadat Ali, AIR. 1054 SC. 345. the question was whether the document was a mortgage by conditional sale or a sale with condition of re-purchase. The principles which guide the determination of the real nature of the transaction have been laid down in that decision. The first principle is that the intention of the parties is the determining factor and 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 by the parties is ruled out. In such a case the real question 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. What prima facie is an absolute conveyance does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to re-purchase. Conversely if on the face of it the document clearly purports to be a mortgage it cannot be turned into a sale by a reference to a host of extraneous and irrelevant considerations. Conversely if on the face of it the document clearly purports to be a mortgage it cannot be turned into a sale by a reference to a host of extraneous and irrelevant considerations. The mere fact that there is only one document embodying the sale as well as the agreement to re-purchase does not necessarily mean that it must be a mortgage and not a sale. It is a matter for construction of the document In each case to ascertain the real meaning. Since the Legislature by the amendment to S. 58 of the Transfer of Property Act has made a clear cut classification and excluded transactions embodied in more than one document from the category or mortgages it is reasonable to suppose that persons who choose not to use two documents after the amendment do not intend the transaction to ba a sale unless they displace that presumption by clear and express words and that if the conditions of S. 58 (c) are fulfilled the deed should ba construed as a mortgage. In such circumstances the document must be taken to be a mortgage by conditional sale unless there are express words to indicate to the contrary or in case of ambiguity the attendant circumstances necessarily lead to the opposite conclusion. ( 3 ) IN the case before their Lordships the language of the document was ambiguous. One of the circumstances which was considered significant in that case was that there was no clause for retransfer but there was a term in the document to the effect that if the executants pay the money within the stipulated period the property should come to the exclusive possession and occupation of the executants. The term was clear about the possession but silent about the title. The term was construed as meaning that if there is payment within the specified time then the title will continue to reside in the executants. The silence abput the title was held to be proper in a mortgage since the owner's title remains in him all the while and so a reconveyance would be unnecessary but if there is an out and out sale the title could not revert to the original owner without proper reponveyance. Another clause in the document was to the effect theft if the money is not paid within the stipulated period then the sale would become absolute. Another clause in the document was to the effect theft if the money is not paid within the stipulated period then the sale would become absolute. Considering the terms of the document as a whole and the circumstances of the case it was held in that case that the document was a deed of mortgage by conditional sale In P. L. Bapuswami v. N. Pathay, AIR. 1966 SC. 602. the document was in (the form of a sale deed but contained a stipulation that the vendee should reconvey the property to the vendor on his repaying the amount of Rs. 4000 during the stipulated period. The condition for repurchase was embodied in the same document. The consideration for the transaction was Rs, 4000 whereas the real value of the property was Rs. 8000. But the patta was not transferred to the vendee after the execution of the document. The assessment for the land was continued to be paid by the vendor and after his death by his sons. The consideration for reconveyance was Rs. 4000 the same amount as thei consideration for the original transaction. It was held that the document was a deed of mortgage by conditional sale. While dealing with the principles to be adopted in deciding whether the transaction is a mortgage by conditional sale or an out and out sale it was observed as follows :" The question whether by the incorporation of such a cendition 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 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. 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 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 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. If the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its 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___" ( 4 ) THE document in the present case is styled as " Muddathu kharidi". It implies that it has to take effect as a sale deed on a future date in other words that the title to the property is intended to be transferred to the vendee not immediately under the document but on a future date. The possession was delivered to the first defendant on the date of the document as recited therein. It was stipulated that if the vendors made payment of the sum of Rs. 1800 after the 31st of March of each year thereafter or within five years from the date of the document the document should be returned to the executant after the endorsement of satisiaction and possession of the property delivered back to the executants if payment is not made within five years the vendee becomes the full owner of the property and the vendors shall thereafter have no right title or interest in the property conveyed. Hence one of the conditions of the transaction is that on default of the payment of the mortgage money on a cestain date the sale shall become absolute. Another condition ia that if payment is made as stipulated the document shall be returned with an endorsement of satisfaction to the executants and possession shall be delivered back to the executants. These conditions attract the provisoins of Sec. 58 (c) of the transfer of Property Act. ( 5 ) BOTH the lower Courts have held that the consideration for the document was inadequate. These conditions attract the provisoins of Sec. 58 (c) of the transfer of Property Act. ( 5 ) BOTH the lower Courts have held that the consideration for the document was inadequate. The first defendant admitted in his evidence that the property is worth Rs. 10000 during the course of his evidence which was recorded in the year 1967. But he stated that it is so worth alter the improvements carried out by him but he gave the value of the improvements as Rs. 100. Both the lower Courts therefore held that the value of the property on the date of the transaction could not be less than rs. 6000 or Rs. 7000. The finding with regard to the value of the property is a finding on a question of fact which cannot be questioned in second appeal. The khatha of the property was not changed in favour of the first defendant subsequent to the document but in the 'other rights' column in the record of Rights it was mentioned that the first defendant was in possession under ' Muddathu Kharidi'. In the notice issued prior to the suit the plaintiff stated that he had offered to pay Rs. 1800 to the first defendant within the stipulated period of five years but that the first defendant had refused to accept the same. In the reply notice Ext. 32 issued on behalf of the first defendant it was denied that the plaintiff had made such an offer within the stipulated period but what is significant is that in Ext. 32 the first defendant has stated that he had become the full owner of the property after 3-5-1965 i. e. after the stipulated period of five years. This is in consonance with the terms of the document Ext. 43 that it is only after the stipulated period of five years that the title vests in the first defendant both the lower Courts considered the oral evidence as well as the circumstances of the case and came to the conclusion that the offer alleged to have been made by the plaintiff within the stipulated period of five years was true relying upon the evidence of the plaintiff. ( 6 ) THE fact that the consideration for Ext. 43 was inadequate is an important circumstance to show that the transaction was not a sale but a mortgage. ( 6 ) THE fact that the consideration for Ext. 43 was inadequate is an important circumstance to show that the transaction was not a sale but a mortgage. The absence of a condition in the document with regard to the reconveyance of title to the executants on payment of the stipulated amount within the period mentioned also indicates that the title was intended to remain with the executants till the stipulated period of five years was over. The condition in the document to the effect that on payment by the executants the vendee should return the document with endorsement of satisfaction and redeliver possession tp the executants also signifies that the) intention was to treat the transaction as a mortgage and not a sale. ( 7 ) IT is however contended by Mr. Joshi appearing for the appellant that there is no relationship of debtor and creditor between the parties and that it is one of the tests to be applied in determining the real nature of the transaction. He has relied on the decision in Kuppa v. Masti, AIR. 1931 Bom. 371. wherein it is held that one of the- tests to determine whether a transaction is a sale or mortgage is whether there is a debt and the relationship of debtor and creditor subsists between the parties i. e. whether the money which was obtained as purchase money is a loan and shall be repaid with or without interest. It was also held that another test is whether the ostensible price is adequate and that the transfer of possession is more consistent with a sale whereas the retention of the possession by the transferor is an indication of a mortgage. But it has to be remembered that the document must be construed as a whole and all the surrounding circumstances must be taken into consideration while determining the real intention of the parties. The tests referred to in the above decision are only some of the tests which are to be applied for such determination. The circumstance that even the first defendant made it clear in his reply notice Ext32 that ha claimed to have become the owner subsequent to the expiry of the stipulated period of five years clearly shows that it was not the intention of the parties that title should pass to the first defendant immediately. The circumstance that even the first defendant made it clear in his reply notice Ext32 that ha claimed to have become the owner subsequent to the expiry of the stipulated period of five years clearly shows that it was not the intention of the parties that title should pass to the first defendant immediately. Possession was delivered on the date of the document. Hence under the circumstances the intention of the parties must be deemed to be that the property was offered as security for the consideraon. off the document in other words that it was intended to be a mortgage and not a sale The fact that the first defendant did not get the khatha of the property transferred to his name after the document is also consistent with this interpretaion of the document. ( 8 ) THE lower Courts were therefore justified in coming to the conclusion that the transaction is a mortgage by conditional sale and not an out and out sale. This appeal is accordinly dismissed with costs. --- *** --- .