K. A. SWAMY, J. ( 1 ) AT the stage of admission, Respondents nos. 1 to 3 have entered caveat. Notice to other respondents has been dispensed with, as they had remained ex-parte in the lower Appellate Court except Respondents Nos. 5, 6, 10, 15, 18 and 19 who have been deleted on the basis of the memo filed by the appellant. They are the subsequent purchasers from the appellant. They failed to prefer an appeal against the Judgment and decree of the lower Appellate Court which have gone against them. The records of the case are received. ( 2 ) 2. 1. In the light of the contentions urged enboth sides, the following substantial question of law arises for consideration. Hence the appeal is admitted. It is heard for final disposal. 2. 2. The substantial question of law is as to whether the document Ex. P. 4 is a mortgage by conditional sale or sale with a condition of reconveyance? 2. 3. The appellant is 2nd Defendant. Respondents 1 to 3 are the plaintiffs 1 to 3. The appeal is preferred against the Judgment and decree dated 16-7-1988 passed by the Civil Judge, madhugiri in R. A. No. 65/1984 confirming the judgment and decree passed by the Munsiff, pavagada, in O. S. No. 221/1979, dated 18-7-1984. Following are the suit properties: 1. "properties situated in Y. N. Hosakote, pavagada Taluk, Sy. No. 233 bounded on the East: Land of Sri Seshagiri Rao, West: land of Jayamma Mazid, North: Land of arila Subbarayappa and on the South: kunte Kelagala Thota. ,out of this dry 6 acres 29 guntas assessed at Rs. 1. 75 paise from West to East. 2. Sy. No. 255 bounded on the East: Kunte kelagala Thota, West: Kotigudda and Manjappa thopu, North: Seshagiri Rao's land, south: Kandadadlu Venkateshaiah's Thopu and Sy. Nos. 236 and 237. Dry 5 acres assessed at Rs. 1. 12 paise from southern side to the Northern side from the Hadbust. 3. Sy. No. 236-Bagayath, bounded on theeast: Kunte Kelagala Thota, West: Sy. No. 237, Sy. No, 236, South: Second defendant's land, out of this 1 acre 26 guntas from the southern Habdust to the Northern side assessed at Rs. 1. 12 paise. 4. Sy. No. 237, bounded on the East: Sy. 3. Sy. No. 236-Bagayath, bounded on theeast: Kunte Kelagala Thota, West: Sy. No. 237, Sy. No, 236, South: Second defendant's land, out of this 1 acre 26 guntas from the southern Habdust to the Northern side assessed at Rs. 1. 12 paise. 4. Sy. No. 237, bounded on the East: Sy. No. 236, West: Kondagaddalu Venkata swamiah's Thopu, North: Seshagiri Rao, south: Land of second defendant, out of this from Southern Hadbust to the Northern side, 1 acre 8 guntas. assessed at Rs. 0-75 paise. Half share in ten tamarind trees in badagiyarana Thopu. There were two brothers by name Gopala Rao and Seshagiri Rao. They were the owners of the suit properties and also the other half of them. They executed an usufructuary mortgage-deed dated 11-12-1940-Ex. D. 1 in favour of one Ear- nati Seethaiah and Company in respect of the suit properties and other half of them. The lower appellate Court has mainly proceeded to consider the question as to, whether Ex. D. 1 is a mortgage by conditional sale or a sale with a condition of reconveyance. It appears to me that the lower Appellate Court has unnecessarily gone into this question, because admittedly parties have executed Ex. P. 4 dated 27-11-1946 superseding the earlier document Ex. D. 1, dated 11-12-1940, in favour of Earanti Seethaiah and company. By the time Ex. P. 4 came to be executed, Gopala Rao was no more. Therefore, the plaintiffs i. e. , the wife and two sons of Gopala rao and his brother Seshagiri Rao together ex- ecuted Ex. P. 4. The point urged in this appeal is that Ex. P. 4 is a sale with condition of reconveyance and not a mortgage by conditional sale. Therefore, it is necessary to advert to the relevant recitals contained in Ex. P. 4: "it may also be noticed that at the time when this document was executed, the children of gopala Rao were minors. Therefore, the first plaintiff executed the document on her behalf and also on behalf of her minor sons as their guardian. ( 3 ) BEFORE considering the question as to whether Ex. P. 4 is a mortgage by conditional sale or a sale with a condition of reconveyance. it is also necessary to mention some more facts which are also not in dispute. After Ex. ( 3 ) BEFORE considering the question as to whether Ex. P. 4 is a mortgage by conditional sale or a sale with a condition of reconveyance. it is also necessary to mention some more facts which are also not in dispute. After Ex. P. 4 was executed by Seshagiri Rao and the plaintiffs, seshagiri Rao himself executed a sale deed on 30th August, 1947 Ex. P. 2 in favour of Defendant no. 1 conveying his right, title and interest in the other half portion of the lands involved in the present suit. Thus the suit properties are the half portions of survey numbers which were owned by Gopala Rao and Seshagiri Rao. ( 4 ) ON 15-12-1949 the plaintiffs mortgaged the suit properties under Ex. P. 1 in favour of defendant No. 1. The First Defendant assigned under Ex. P. 3 the mortgage obtained by him as per Ex. P. 1 to Defendant No. 2. It may also be mentioned here that Defendant No. 2 is none other than the son of Earanty Seethaiah who died in the year 1966. It is not in dispute that Earanty seethaiah died in 1966. The plaintiffs have filed the present suit on the basis of Ex. P. 1 dated 15-12-1949 for redemption. The case of Defendant 2 is that Ex. P. 4 dated 27-11-1946 was not a mortgage by conditional sale but a sale with a condition of re-purchase. The plaintiffs have failed to avail the right of reconveyance within the period stipulated under Ex. P. 4. Therefore, on the expiry of the period stipulated under Ex. P. 4, the plaintiffs lost all their right, title and interest in the suit properties. As such, they could not have created any mortgage in favour of Defendant No. 1 under Ex. P. 1. It is also the case of the 2nd Defendant that as the mortgage Ex. P. 1 had legal validity, because the mortgagor had no right, title and interest in the mortgaged properties, the assignment obtained by Defendant No. 2 was also of no value and therefore, it could not affect the right of Defendant No. 2 as an heir of Earanty Seethaiah. In other words, it is the case of Defendant No. 2 that document Ex. In other words, it is the case of Defendant No. 2 that document Ex. P. 4 executed in favour of earanty Seethaiah and Company being a sale, on the death of Earanty Seethaiah, the estate of earanty Seethaiah devolved upon him. Therefore, the question for consideration as framed above is as to whether Ex. P. 4 is a mortgage by conditional sale or a sale by a condition of repurchase. ( 5 ) FOR the purpose of detern the point,the Court has to look to not only detaitals of the documents, but also the surring circumstances and the conduct of the to ascertain as to how they have understood and enforced the document. The Supreme Court in the case of P. L. Bapuswami v N. Paltay Gounder, air 1966 SC 902 , has considered the question as to when a document can be held to be a mortgage by conditional sale and not a sale with condition for reconveyance. The relevant portion of the Judgment is as follows: "the question of law involved in this appeal is whether the document, Ex. B. 1 executed by Palani Moopan in favour of the 1st defendant is, in its true effect, a mortgage by conditional sale or a sale with a condition for re-transfer. By Section 58 (c) of the Transfer of Property act a mortgage by conditional sale is defined as follows: 58 (c): Where the mortgagor ostensibly sells the mortgaged property- on condition that on default of payment of the mortgaged-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". The proviso to this clause was added by Act 20 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 proviso to this clause was added by Act 20 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 isembodied 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 or 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 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 transferring 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. 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. In the present case, the document Ex. B. 1 reads as follows: '. . . . . . . . . . . . . . . . . . . In the present case, the document Ex. B. 1 reads as follows: '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I have settled to sell to you on this day for a sum of Rs. 4,000 the undermentioned immovable properties and have received the consideration of rupees four thousand only, as detailed below:- in the matter of my having directed you yourself to pay the sum of Rs. 2,000 being my half share payable towards the usufructuary mortgage-deed executed on 7th September, 1944, in respect of the share of properties detailed below and in respect of some other share of properties, jointly by me and Palani Mooppachi, wife of one Palani Moopan of the aforesaid place in favour of M. Maniyam P. V. Ramaswami goundar, son of Venkatachala Goundar, residing in pattampalayam village cusba, Palladam taluk, for a sum of Rs. 4,000 and registered as document No. 1122 of 1944, Book I, Volume 210, pages 415 and 416 in the Office of the Sub- registrar of Kunnathur to the aforesaid usufructuary mortgagee, get release of the properties mentioned herein and take possession of the same, the amount received by me is Rs. 2,000. The amount which I have received in cash on this day is Rs. 2,000. As, in all, I have received the sale consideration of Rs. 4,000/- as detailed above, you yourself shall, in future, hold and enjoy absolutely the undermentioned properties. In future, neither myself nor my heirs shall have any right or future claim, whatever, in respect of these properties. There is no other encumbrance, whatever, except the encumbrance mentioned above, in respect of these properties. In case anything is left out', I am bound to get the same discharged from and out of my other properties. Whereof, in all these, and in the well in good condition, situate in Government Survey no. 93/1 and in the cocoanut palmyrah, tamarind and woodapple trees and in the fruit bearing and timber trees winch are in the aforesaid fields, the half-share in common. In future I have neither share nor right, whatever, in the aforesaid fields. The aforesaid Palani Mooppacin shall discharge the above mentioned balance usufructuary mortgage amount of Rs. 93/1 and in the cocoanut palmyrah, tamarind and woodapple trees and in the fruit bearing and timber trees winch are in the aforesaid fields, the half-share in common. In future I have neither share nor right, whatever, in the aforesaid fields. The aforesaid Palani Mooppacin shall discharge the above mentioned balance usufructuary mortgage amount of Rs. 2,000/- from and out of the balance of the usufructuary of mortgage properties. Should I pay in case the aforesaid sale consideration of rupees four thousand after a period of five years witinn a period of seven years from the date of the execution of the deed, during the date of expiry of the said deed of any year (the said properties) should be re-conveyed for the very same amount to me. Tins condition is not valid after the aforesaid period. " (emphasis supplied) in the instant case though the document is described as a sale deed, nevertheless, it contains a recital that if the vendors were to repay the consideration received under the contract witinn a period of six years, the vendee was to return the properties, of course, by reconveyance. Therefore, the document satisfies the condition contained in the proviso to Section 58 (c) of the transfer of Property Act thereby it enables the court to find out whether the transaction in question is in its true effect is a sale or a mortgage transaction. Ofcourse, as far as the other requirements as mentioned in the Judgment of the Supreme court are concerned, there is no evidence adduced by either side. But, that should not be made a ground in the facts and circumstances of the case, for holding that the Judgment and decree of the lower Appellate Court suffer from legal informity. It may be relevant to notice that if the document Ex. P. 4 were to be a transaction of sale with a condition of re-purchase, Seshagiri rao could not have sold ins share to Defendant no. 1 under Ex. P. 2 and Defendant No. 2 could not have purchased that share from Defendant no. 1 as revealed from the evidence on record winch is adverted to by the lower Appellate court. Tins fact is admitted by Defendant No. 2 in ins evidence. It is also relevant to notice that Defendant No. 1, in ins evidence has specifically stated that he got the mortgage Ex. 1 as revealed from the evidence on record winch is adverted to by the lower Appellate court. Tins fact is admitted by Defendant No. 2 in ins evidence. It is also relevant to notice that Defendant No. 1, in ins evidence has specifically stated that he got the mortgage Ex. P. 4 redeemed from Earanti Seethaiah and Company and obtained an endorsement on Ex. P. 4 and obtained receipt and handed over the original mortgage deed and also the receipt to Defendant no. 2 winle executing the assignment deed Ex. P. 3. Similarly, Defendant No. 1 could not have paid the advance amount to the plaintiffs on 15-12-1949, under Ex. P. 1 if Ex. P. 4 was a sale with a condition of re-purchase. In addition to tins, Defendant No. 2 who is no other than the spn of Earanti Seethaiah, could not have obtained assignment of the mortgage Ex. P. 1 under ex. P. 3. These documents and also the conduct of Defendants 1 and 2 coupled with the evidence of Defendant No. 1 who was examined as P. W. 3 that he got the mortgage Ex. P. 4 discharged and obtained the original deed from Earanty seethaiah and Company and also the receipt for having paid the amount and handed over the same to Defendant No. 2 winch was not challenged, would clearly go to show that the parties never intended Ex. P. 4 to be a sale by condition of re-purchase. The conduct of the parties and coming into existence of Exinbits P. 1, P. 2 and p. 3 are consistent with the fact that document ex. P. 4 was a mortgage by conditional sale and not a sale by condition of re-purchase. As the parties themselves have treated the document as mortgage and the same has also been redeemed ' as per the evidence of Defendant-1 examined as p. W. 3, there should not be any difficulty in holding that Ex. P. 4 was a mortgage by conditional sale and not a sale with a condition of re-purchase. If that be so, the decree passed by the lower Appellate Court for redemption of mortgage Ex. P. 1 is in accordance with law. 5. P. 4 was a mortgage by conditional sale and not a sale with a condition of re-purchase. If that be so, the decree passed by the lower Appellate Court for redemption of mortgage Ex. P. 1 is in accordance with law. 5. It is, however, contended by Sri Gundu rao, learned counsel for the appellant that unless the endorsement made on a mortgage deed discharging the mortgage debt is registered or it is redeemed by way of issuing a receipt of redemption for having received the amount due under the mortgage, mere oral evidence given by P. W. 2 in the absence of production of the original of ex. P. 4 or the receipt, the mortgage cannot be held to have been redeemed. In such an event, the suit filed for redemption of the mortgage, evidenced by Ex. P. 1 is not maintainable because the right to redeem the earlier mortgage as on the date of the suit had become barred by time. It is not possible to accept tins contention. The defendant No. 2 - appellant inmself having treated the document Ex. P. 4 as mortgage and having accepted the case of Defendant No. 1 that it had been redeemed by inm by. discharging the mortgage debt and on that basis he having ob tained the deed of assignment assigning the mortgage Ex. P. 1 in ins favour by the 1st Defendant, cannot now be permitted to turn back and contend that Ex. P. 4 was a sale by condition of re-purchase and not a mortgage by conditional sale or that it was not redeemed. Defendant No. 2 could not have either purchased half share of seshagiri Rao from Defendant No. 1 who had purchased it from Seshagiri Rao under Ex. P. 2 dated 30-8-1947, or the mortgage deed Ex. P. 1 dated 15-12-1949 could not have got assigned in ins favour under Ex. P. 3. Therefore, in the facts and circumstances of the case, it has to be held that Ex. P. 4 was a mortgage by conditional sale and not a sale with a condition of re-purchase. In these circumstances, the fact that there is no evidence with regard to the value of the property mortgaged loses its importance. It is further contended that the subsequent conduct of the parties should not be taken into consideration for determining the true nature of the document ex. P. 4. In these circumstances, the fact that there is no evidence with regard to the value of the property mortgaged loses its importance. It is further contended that the subsequent conduct of the parties should not be taken into consideration for determining the true nature of the document ex. P. 4. Normally and contemporaneous conduct of the parties to the document is taken into account for determining the nature of a document. But in a case where the subsequent conduct of the parties is closely connected with document itself and they have treated the document in a particular manner and have acted accordingly, the fact that such a conduct is subsequent to the document could not in any way be made a ground to exclude such conduct from consideration in determining the nature of the document; as such conduct being relevant cannot at all be excluded from consideration. Therefore, it is not possible to accept tins contention also. Hence the point raised for determination is answered as follows: "ex. P. 4 dated 27-11-1946 is a mortgage by conditional sale and not a sale by condition of re-purchase and it had been redeemed as pointed out above. " in the result, the preliminary decree passed by the lower Appellate Court for redemption of the mortgage evidenced by Ex. P. 1 has to be upheld. For the reasons stated above, the appeal fails and the same is dismissed. In the facts and circumstances of the case, there is no order as to costs. --- *** --- .