Judgment :- 1. This is a defendants' appeal from the decree of the learned Subordinate Judge, Tirur, affirming the decree of the trial court in O. S. No. 353 of 1966. 2. The suit was for redemption of what according to the plaintiff was a mortgage by conditional sale. The defendants contested the suit on the ground that the transaction in question was not a mortgage, but an out and out sale with a right of repurchase in the vendor. It was contended that the suit for redemption was not maintainable in respect of the suit property. 3. The property in question is about 98-2/3 cents in Valavannur amsom in Ponnani Taluk. Ext. Al dated 10-9-1955 is the document whereby the defendants have come into possession of the suit property. 4. The plaintiff is the widow of Seythali who executed Ext. Al in favour of the defendants. Seythali transferred his remaining rights under Ext. Al in favour of his wife by Ext. A2 dated 13-11-1962. The fundamental question for consideration is whether the transaction evidenced by Ext. Al is a mortgage by conditional sale or whether it is an outright sale with a right of repurchase in the vendor. If it is the former, Ext. Al falls within the ambit of S.58(c) of the Transfer of Property Act and the plaintiff's claim for redemption would be perfectly valid; but if it is the latter, the suit for redemption would have to be dismissed. 5. Certain principles are well-settled in regard to the construction of a document such as Ext. Al. The test to be applied in determining whether a transaction is a mortgage or a sale is to find out the intention of the parties to the instrument. Their intention has to be gathered from the language of the document itself viewed in the light of the surrounding circumstances: Jhanda Singh v. Sheikh Wahid-ud-din, (1916) 36 I.C. 38). For the purpose of ascertaining their intention, oral evidence, other than that of surrounding circumstances, is not admissible, as it is excluded by S, 92 of the Indian Evidence Act. The case has therefore to be decided on a consideration of the contents of the document itself "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": Balkishen Das v. W. F. Legge (1899) ILR. The case has therefore to be decided on a consideration of the contents of the document itself "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": Balkishen Das v. W. F. Legge (1899) ILR. 22 Allahabad 149 PC.; Raja Bahadur Narasingerji Gyanagerji v. Raja Panuganti Parthasaradhi Rayanim Garu (AIR. 1924 PC. 226). 6. Lord Chancellor Cran worth stated in Alderson v. White (2 De Gex and J. 105) [cited in Bhagwan Sahai v. Bhagwan Din ILR. 12 Allahabad 387 (PC) at 391] as follows: "The rule of law on this 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." 7. To be effective as a mortgage, the document has to disclose a prior intention or agreement to mortgage the property and to accomplish that object by means of an ostensible deed of sale with a contract of repurchase. The question in all such cases is therefore whether it was the intention of the parties to place themselves in the relation of debtor and creditor; or whether they intended to effect an out and out sale, albeit, with a right of repurchase in the vendor. 8. The relevant part of S.58 (c) of the Transfer of Property, Act reads as follows: "Where the mortgagor ostensibly sells the mortgaged property 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." 9. The proviso to the sub-section was inserted by the Amendment. Act 20 of 1929. Before the amendment, many of the transactions were contained in two documents, one of which evidenced a sale and the other a contract for repurchase. The proviso to the sub-section was inserted by the Amendment. Act 20 of 1929. Before the amendment, many of the transactions were contained in two documents, one of which evidenced a sale and the other a contract for repurchase. Most of the cases decided prior to the amendment naturally therefore turned on the question whether the execution of the deed of sale and of the contract of repurchase formed two separate and independent transactions; or, whether they were two connected and inter-dependent parts of one and the same transaction. If the former was the case, the courts held that the parties intended to effect an out and out sale with a contract for repurchase; if it was the latter, a mortgage was spelt out of the stipulations. It was in such context that Lord Atkinson spoke as follows in Jhanda Singh v. Sheik Wahid-ud-din, 36 I.C. 38 PC: "The appellant's contention is, and to be effective must be, that an agreement was come to between the parties that the property should be mortgaged to the so-called vendees for a sum of Rs. 5,500/-and next that that agreement should be carried out by a deed of sale and a contract for re-purchase. If no such agreement was made before the deed of sale was executed and the later deed was an afterthought, only suggesting itself after the sale deed had been executed and delivered,-it would not suffice. The execution of the deed of sale and of the contract of repurchase would then form two separate and independent transactions, not two connected and interdependent parts of one and the same transaction." 10. Subsequent to the amendment of 1929, S.58 (c) has no application unless the ostensible contract of sale and the contract of re-purchase are contained in the very same document. If the deed of sale does not contain any provision for re-purchase, the transaction will be treated as an absolute sale and there will be no scope for any other construction of the document. Difficulty may, however, arise where the intention of the parties is not clearly discernible when they have vouched a deed of sale in a language suggesting that the sale and the consequential vesting of property are subject to and circumscribed by the right of repurchase in the vendor. Difficulty may, however, arise where the intention of the parties is not clearly discernible when they have vouched a deed of sale in a language suggesting that the sale and the consequential vesting of property are subject to and circumscribed by the right of repurchase in the vendor. In such a case the person asserting that, notwithstanding the condition of re-transfer, the transaction is an absolute sale, will have to prove that the parties had intended an out and out sale and that the condition of re-transfer, although incorporated in the same document, is nothing but an independent and separate provision which does not affect the character of sale and vesting. In other words, the presumption is that if the parties had intended to effect an absolute sale of the property with an independent contract for re-purchase they would have hesitated, subsequent to the the amendment of 1929, to embody the agreement of sale and of re-purchase in the very same document. A prudent vendee would ordinarily insist upon two documents to give effect to the intention to sell and to re-purchase. On the other hand, if the parties knowingly take the risk of using the same document to accomplish both these objects, they should do so in language clear enough to keep the two provisions separate and independent of each other in order that no doubt is created as to the intention of the parties to vest the property absolutely in the buyer. This is clear from the various decisions rendered subsequent to the amendment of 1929. 11. Referring to the amendment of S.58(c) Bose J. stated in Chunchun Jha v. Ebadat Ali (AIR. 1954 SC. 345) as follows: "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 a sale. If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. If the condition of repurchase is embodied in the 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 S.58(c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage. Now, as we have already said, once a a transaction is embodied in one document and not two and once its terms are covered by S.58(c) then it must be taken to be a mortgage by conditional sale unless there are express words to indicate the contrary, or in a case of ambiguity, the attendant circumstances necessarily lead to the opposite conclusion." (italics supplied). Again in P. L. Bapuswami v. N. Pattay Gounder (AIR. 1966 SC. 902), Ramaswami J. attached much importance to the circumstance that the condition of repurchase was embodied in the same document which purported to effect a sale. Various High Courts have recognised a presumption in favour of mortgage where the parties have used only one document to effect a sale with a condition of re-transfer. Veeravunni Haji v. Koyammu (1957 KLT. 550); Quda Mir v. Motna Bhat (AIR. 1972 J & K 81, Para.4); Murugan v. Jayarama Pilla (AIR. 1974 Madras 311, Para.2 and 3); Smt. Janki Devi v. Mt. Murta Kuer (AIR. 1974 Patna 246); Karuppanna Gounder v. Thirumalai Gounder (AIR. 1978 Madras 75). 12. The presumption is however rebuttable. As stated by the Supreme Court: '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 a sale. Per Bose J. in Chunchun Jha v. Ebadat Ali (AIR. 1954 SC. 345). Where there is only one document, that document has to be construed for determining the intention of the parties. Did they intend an outright sale or have they by the transfer merely secured the payment of a debt? 13. In Bhaskar Woman Joshi v. Shrinarayan Rambilas Agarwal (AIR. 1960 SC. 1954 SC. 345). Where there is only one document, that document has to be construed for determining the intention of the parties. Did they intend an outright sale or have they by the transfer merely secured the payment of a debt? 13. In Bhaskar Woman Joshi v. Shrinarayan Rambilas Agarwal (AIR. 1960 SC. 301, 304) Shah J. observed as follows: "The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and the 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 re-transfer 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 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." In almost identical language, Ramaswamy J. reaffirmed this principle in P. L. Bapuswami v. N. Pattay Gounder (AIR. 1966 SC. 902). 14. Counsel for the appellants, Shri T. S. Venkiteswara Iyer, submits that in the absence of any reference to a security for the payment of a debt, the parties cannot be considered to have intended to create a mortgage. Where the deed upon its face purports to be an absolute deed of sale, and does not disclose any intention to treat the transfer of property as anything other than an absolute sale, S.58 can have no application. Counsel says that the concept of mortgage by conditional sale mentioned in S.58(c) is conditional upon the transaction being a mortgage and the vendor having satisfied the definition of a mortgagor. In other words, what is on the face of it a sale cannot be treated as a mortgage unless the ingredient of mortgage, viz., security for payment of a debt, is engrained in the document itself. In other words, what is on the face of it a sale cannot be treated as a mortgage unless the ingredient of mortgage, viz., security for payment of a debt, is engrained in the document itself. Shri Govinda Wariyar, appearing for the respondents, on the other hand submits that wherever circumstances which are discernible from the document suggest that the parties intended a mortgage, although such intention is not directly seen from the document itself, courts have construed the document as a deed of mortgage rather than sale. Counsel says that if parties have chosen to incorporate a condition of repurchase in the same document which purports to be a sale, the presumption is that they intended a mortgage and not a sale. The burden then is upon the person asserting that it was a sale to show by clear and express words in the document that the intendment of the parties was a sale and not a mortgage. This, I hope, is a correct summary of the lucid and learned arguments of counsel on both sides. 15. S.58(c) postulates an "ostensible sale". A transaction falling within that Section would therefore contain all the outward appearance of a real sale; but what distinguishes it from a real sale is that the words purporting to transfer title absolutely do not in fact do so, as they are circumscribed by the condition attached to them which makes the sale merely ostensible. Whether the condition of repurchase embodied in a particular document has the effect of so limiting the scope and operation of the words denoting sale depends upon whether those stipulations are connected and interdependent parts of the same transaction or whether they form two separate and independent transactions, although embodied in the same document. In a transaction attracted by S.58(c), the sale being only ostensible the condition of repurchase is such an integral part of the whole transaction that there is no absolute conveyance of the property. On the other hand, where the sale is real and absolute, the stipulation for repurchase, albeit, embodied in the same document, is an independent and separate contract which does not affect the transfer of title, although it might legitimately form the basis for a claim for specific performance. 16. Which are the transactions where the sale is ostensible and which are the ones where it is real is often a difficult question to determine. 16. Which are the transactions where the sale is ostensible and which are the ones where it is real is often a difficult question to determine. The answer of course depends upon the intention of the parties as disclosed by the document. But in many cases say, in the large majority of cases brought to courts for interpretation the documents may not supply a clear guide. In any such borderline case where the language employed is suggestive of either meaning, the intention of the parties has to, be gathered with reference to the various stipulations contained in the document and in the light of the surrounding circumstances. 17. A vague, obscure or contradictory provision regarding the vesting of title, the inadequacy of consideration with reference to the market value of the property at the time of the transaction, an elastic and indefinite period provided for repurchase, the consideration for repurchase being the same as that for the purported sale, and like provisions are indicative of mortgage rather than sale. These provisions, if present, when examined in the light of the surrounding circumstances, may enable the court to remove the mask of sale and unearth the real nature of the transaction namely, mortgage. 18. I shall now read Ext. Al. The document is styled 4s a kanom theeratharam The consideration mentioned in the document is Rs. 650/-. The extent of the property, as I stated earlier, is 98-2/3 cents in Velavannuramsom, Ponnani Taluk The provision for vesting reads as follows: (emphasis supplied) This shows that the right, title and interest of the vendor is vested in the vendee subject to a certain condition. The condition is stated as follows: (emphasis supplied) The parties have chosen to embody the condition of repurchase in the same document which purports to be a deed of sale. The vesting of title is subject to the right of the vendor to repurchase the property transferred. The presumption referred to by Bose J. in Chunchun Jha v. Ebadat Ali (AIR. 1954 SC. 345) thus places the burden upon the defendants to show that the parties had "by clear and express words" intended to effect an absolute sale. 19. The consideration for the purchase is the same as that for repurchase. The presumption referred to by Bose J. in Chunchun Jha v. Ebadat Ali (AIR. 1954 SC. 345) thus places the burden upon the defendants to show that the parties had "by clear and express words" intended to effect an absolute sale. 19. The consideration for the purchase is the same as that for repurchase. This is an indication in favour of a mortgage, for it is unlikely that in the case of an absolute sale the buyer would have agreed to reconvey the property for the same amount as was paid to the vendor at the time of the original sale: P. L. Bapuswami v. N. Pattay Gounder, (AIR. 1966 SC. 902). The period mentioned for repurchase is extremely vague and elastic for it says that at any time after the expiry of one year from the date of the transaction, the vendor upon repayment of the price of Rs. 650/-is entitled to repurchase the property and the vendee is then obliged to reconvey the same to the vendor. In other words it is open to the transferor to demand reconveyance of the property at any distance of time for the same price as was originally received by him. The fact that such an obscure provision is inserted in the document shows that within the intendment thereof time was not of the essence of the contract for repurchase. This militates against the concept of sale and supports the argument in favour of mortgage: Narasingerji Gyanagerji v. Raja Panuganti Parthasaradhi Rayanim Garu AIR. 1924 P. C. 226; Unichirakutty v. Kuttimalu,1967 KLT. 591; Assya Umma v. Kolukkanni Kunhoyi,1960 KLT. 12. 20. The price mentioned in the document has been found by the lower appellate court to be inadequate. The learned judge says: "Considering the evidence of pw.1, though interested, and the commissioner's account, it is evident that the property was worth much more than Rs. 650/-at the time of Ext. Al." This is indeed an indication in favour of a mortgage. Narasingerji Gyanagerji v. Raja Panuganti Parthasaradhi Rayanim Garu (AIR. 1924 P. C. 226); Bhaskar Woman Joshi v. Shrinarayan Rambilas Agarwal (AIR. 1960 SC. 301); P. L. Bapuswami v. N. Pattay Gounder (AIR. 1966 SC. 902). 21. All this has to be viewed in the light of the circumstances surrounding the execution of Ext. Al. Narasingerji Gyanagerji v. Raja Panuganti Parthasaradhi Rayanim Garu (AIR. 1924 P. C. 226); Bhaskar Woman Joshi v. Shrinarayan Rambilas Agarwal (AIR. 1960 SC. 301); P. L. Bapuswami v. N. Pattay Gounder (AIR. 1966 SC. 902). 21. All this has to be viewed in the light of the circumstances surrounding the execution of Ext. Al. Seythali transferred the property to the defendants who are his close relatives one of whom (the 1st defendant) resided and worked in Malaysia for about 30 years on a Malayan passport. That the defendants had sufficient funds and that Seythali was badly in need of money can be seen from the transaction itself and the low consideration for which the property was transferred. The transfer was thus not the result of any real bargain as to the value of the property or the price to be paid. Seythali had no desire or intention to part with the property permanently and hence the stipulation for conditional vesting and repurchase. The sale, to the parties, was but a facade, and what lies behind it is security for money borrowed. 22. I am of the view that the courts below were justified in coming to the conclusion that Ext. Al evidenced a mortgage and not a sale. That appears to me to be the necessary and irresistible inference arising from the various circumstances disclosed by the document. Any other conclusion, in my view, would be inconsistent with the language of the document and contrary to authority. 23. I may in passing refer to a justifiable criticism against the admission of the oral evidence of pw.1 to prove the intention of the parties to secure a debt. Counsel for the appellants rightly points out that oral evidence ought not to have been admitted to prove any such intention. However, the fact that oral evidence was let in to establish intention does not affect or detract from the conclusion come to by the courts below, as I have already indicated that such conclusion, de hors any oral evidence, was irresistible in the light of the various circumstances disclosed by the document. 24. Counsel for the appellants contends that even if Ext. Al were to be regarded as a mortgage and not a sale, the suit is not maintainable at the instance of the plaintiff who is not an assignee of the equity of redemption., According to counsel Ext. 24. Counsel for the appellants contends that even if Ext. Al were to be regarded as a mortgage and not a sale, the suit is not maintainable at the instance of the plaintiff who is not an assignee of the equity of redemption., According to counsel Ext. A2 has only transferred to her such personal rights as her deceased husband possessed, viz., the right to repurchase the property. Ext. A2, in my view, admits of no doubt as to the intention of the parties. Seythali had clearly intended that all rights and interests which he had retained in the property transferred under Ext. Al were to be vested in his wife under Ext. A2. The only interest which he could have retained with him under Ext. Al, which, as I have already held, is a deed of mortgage, was the equity of redemption. It was that right which was transferred by Seythali to his wife and she was therefore fully and truly competent to institute proceedings for redemption of Ext. Al mortgage. The appellants' contention to the contrary thus fails. 25. The appeal is dismissed. The parties will however bear their respective costs.