RAJJO BIBI v. CHHOTEY LAL — 1995 DIGILAW 1032 (ALL)

R. B. MEHROTRA, J. This is defendants second appeal. Facts necessary for the decision of the appeal are as under : 2. Chhotey Lal plaintiff filed original Suit No. 469 of 1976 in the court of Munsif, Allahabad, arraying Smt. Rajjo Bibi, Smt. Munni Bibi and Smt. Mawan as defendants in the suit. The relief claimed in the suit was that the property in dispute, which was mortgaged by the predecessor-in-interest of the plaintiff in favour of the predecessor-in-interest of the defendants for Rs. 1,000 be redeemed in favour of the plaintiff and the possession thereof be given to the plaintiff. The suit was contested by the defendants on the ground that the deed dated 13. 8. 1934 was a sale-deed and not mortgage, as such, the suit is misconceived. The defendants also pleaded that the suit is barred by time and defendant No. 1 is bona fide purchaser of the property from Abdul Majid, the original transferee. 3. On the basis of the pleadings of the parties, the trial Court framed issues. Out of the aforesaid issues framed by the trial Court, only following two issues are relevant for the decision of the present appeal ; " (1) Whether the transaction dated 13. 8. 34 is a mortgage redeemable on payment of principal mortgaged money Rs. 1,000 which has been deposited in the Court, or it is a sale outright with no liability of redemption? (5) Whether the suit is barred by time? 4. The trial Court on consideration of evidence, dismissed the plaintiffs suit and held that the transaction dated 13. 8. 34 was an outright sale and the suit for redemption of property treating the aforesaid document to be a mortgage is misconceived. The trial Court did not decide issue No. 5 in view of the findings given in favour of the defendant No. 1 on issue No. 1. 5. Aggrieved by the aforesaid, judgment, the plaintiff filed Civil Appeal No. 291 of 1978. The Additional Civil Judge, Allahabad, vide his judgment dated 15. 2. 1980 allowed the plaintiffs appeal and held that the document dated 13. 8. 34 was a mortgage with a condition to repurchase the property and the suit of the plaintiff was held to be within time. The Additional Civil Judge, Allahabad, vide his judgment dated 15. 2. 1980 allowed the plaintiffs appeal and held that the document dated 13. 8. 34 was a mortgage with a condition to repurchase the property and the suit of the plaintiff was held to be within time. On the basis of the aforesaid findings, the appellate court decreed the suit of the plaintiff for redemption of property, set aside the judgment of the trial Court and directed that preliminary decree be passed under Order XXXIV, Rule 7, C. P. C. in favour of the plaintiff. 6. Aggrieved by the aforesaid judgment, the defendants filed the present second appeal in this Court. This Court has admitted the appeal and has framed following two questions as substantial question of law arising in the appeal; (1) Whether the transaction in suit was an outright sale or a mortgage? (2) Whether the suit was filed within time? 7. I have heard Sri Shahid Masud learned counsel for the appellants and Sri Sharfuddin Ahmad, learned counsel for the respondent. 8. On the first question of law the crucial point to be decided is, as to whether the document dated 13. 8. 34 is a mortgage by conditional sale as contemplated by Section 58 (c) of the Transfer of Property Act or it is an outright sale with a condition to repurchase. The document dated 13. 8. 34 is in Urdu. An English translation of the same alongwith index of Urdu words and its meaning have been filed by the appellants counsel in his written submission, the copy of which has been given to the respondents counsel. The respondents counsel has not objected to the same. The written submission filed by the counsel for the appellants shall form part of the record of this appeal and the same will be kept on record. 9. The lower appellate court has given as many as seven circumstances to hold the document to be a mortgage by conditional sale. The circumstances given out by the lower appellate court are being enumerated hereinbelow. 10. The first circumstance is that condition for the purchase is embodied in the same document. The second important circumstance is that it has been mentioned in the document that it is a mortgage by conditional sale. The third circumstance mentioned in the judgment is that the property continues in the name of Mst. 10. The first circumstance is that condition for the purchase is embodied in the same document. The second important circumstance is that it has been mentioned in the document that it is a mortgage by conditional sale. The third circumstance mentioned in the judgment is that the property continues in the name of Mst. Haliman w/o executant and was not mutated either in the name of the predecessor-in- interest of the defendants or in the name of the defendants themselves. Even Smt. Rajjo Bibi had admitted that the tax was deposited in the name of Smt. Haliman. Fourth circumstance mentioned by the lower appellate court is that although Mehar was due in favour of Smt. Rajjo Bibi but Abdul Majid transferred the property in lieu of Mahar in the year 1965 after 31 years from the date of the execution of the document in question. Had it been sale. Abdul Majid would have transferred the property in the beginning. Fifth circumstance pointed out by the lower appellate court is that it is clear from the document dated 13. 8. 34 (Ext. 4) that the property was going to be auctioned for Rs. 1,000 in the decree of suit No. 190/32 in the Court of Munsif east, Allahabad and the document only contemplates that the said amount will be paid by mortgage to the decree-holder and the decree of the court will stand satisfied and the mortgage will become owner of the property in lieu thereof. Had it been the intention of Abdul Riyaj and Smt. Haliman Bibi to sell the property in suit, they would not have sold for the same amount to Abdul Majid, as they did not derive any benefit out of sale. Other important circumstance pointed out by the lower appellate court is that the property was to be transferred for the same amount and no price was to be paid. Next important circumstance pointed out by the appellate court is that the property was transferred only by way of security. 11. On the basis of the aforesaid circumstances, the lower appellate court arrived at a conclusion that the document dated 13. 8. 34 (Ext. 4) was a mortgage by conditional sale, as contemplated by Section 58 (c) of the Transfer of Property Act and not a sale with condition to re-purchase the property. 12. 11. On the basis of the aforesaid circumstances, the lower appellate court arrived at a conclusion that the document dated 13. 8. 34 (Ext. 4) was a mortgage by conditional sale, as contemplated by Section 58 (c) of the Transfer of Property Act and not a sale with condition to re-purchase the property. 12. The learned counsel for the appellants has assailed the aforesaid finding mainly contending that the question of intention of the parties can be looked into when the document is capable of two interpretations. If the language of the document is unambiguous and clearly sells out that the document was an outright sale, the attending circumstances were irrelevant for the purpose of determining the nature of the document. 13. In support of his contention, the learned counsel for the appellants has placed reliance on the following observations in Tamboli Ramanlal Motilal (dead) by LRs. v. Chanchi Chimanlal Keshavlal (dead) by LRs. and another, AIR 1992 SC 1236 . "the attendant circumstances could be looked into only to gather the intention. Such an intention, if explicitly expressed in the document itself there is no scope for looking at the attendant circumstances, If, therefore, there is no relationship of the debtor and the creditor, the question of it being a mortgage by conditional sale does not arise. On the date of the execution of the title is transferred. The option of repurchase is to be exercised within a period of five years. Upon such* payment there will be reconveyance in favour of the executant of the document, but strangely, there is no corresponding right for the mortgagee to foreclose the right of redemption, these were the points held in favour of this respondent and each one of the reasons is valid. " 14. In the said decision, the Apex Court held that the decision of the Honble Supreme Court in Chunchun Jha v. Ebadat Ali and another, AIR 1954 SC 345 , has no application because that was a case in which the transferor did not mention anything about the title passing to the transferee nor about the reconveyance of the title. 15. According to the learned counsel for the appellants in view of the aforesaid decision, there is no scope of enquiry in face of explicit expressed term used in the document that the property is being sold by the executants, namely, Abudl Riyaz and Mist. 15. According to the learned counsel for the appellants in view of the aforesaid decision, there is no scope of enquiry in face of explicit expressed term used in the document that the property is being sold by the executants, namely, Abudl Riyaz and Mist. Haliman in favour of Abdul Majid s/o Haji Sheikh Wasarat for Rs. 1000. The contention of appellants counsel is that the lower appellate court has wrongly mentioned that the document describes it to be a document of mortgage. There is no such mention in the document and the said finding is contrary to record. 16. This submission is not factually correct, I have looked into the document itself, the exact relevant language of the document is being quoted below in roman script on the basis of which the lower appellate court has recorded the second circumstance that the document mentions it to be a mortgage : "lehaza ham muqiran bahalat sehat nafs wa sabaat aql badurustee jameea hosh hawas bakhushi apney razamandi apne hamangi wa tamanee ek quita makan shifala posh azan mamlooka wa maqbooza apna ke usmen joee shareek wa, saheem hamara naheen haj-mutalba wa muauiza rehan-bai wa heba wa waqfwa zamar. at waghairah se bajuz mutalba marqooma bala ke baree wa pak wa saaf hai. " @hindi = Matter 17. A bare reading of the aforesaid language makes it clear that the document mentions that the deed is being executed by the mortgagors in their full senses and in proper health and with free Will regarding the house owned and possessed by the mortgagors in which there is no other partner and the house is being mortgaged for the aforesaid amount which is free from any sale, gift, Waqf or surety except for the aforesaid amount. The language makes it clear that the property is free from any encumbrance except for the amount for which it is being mortgaged. The lower appellate court has rightly interpreted the aforesaid document while recording a finding in regard to the second circumstance that it is mentioned in the document that the document is a mortgage and not an outright sale. The contention to the contrary is not correct. 18. It has also been contended on behalf of the appellants that the defendants were enjoying the rent from the property in dispute and were in possession thereof. The contention to the contrary is not correct. 18. It has also been contended on behalf of the appellants that the defendants were enjoying the rent from the property in dispute and were in possession thereof. According to the learned counsel for the appellants in the document there is no relationship of the debtor and creditor and mere circumstance of condition to repurchase in the same document itself, it cannot be held to be a mortgage. 19. Placing reliance on a decision of this Court in Munitaz Begum v. Mst. Lachhmi and others, AIR 1929 All 174 for proper interpretation of clause (c) of Section 58, the learned counsel contended that Section 5, (1) declares what transactions can be termed to toe mortgage it has to be determined whether transaction satisfies the condition of Section 58 (a) and it has been found that it is a mortgage, then certain general consequences will follow. The transaction contained in one document by itself is not conclusive for determining the nature of the transaction. In P. L. Bapuswami v. N. Pattay Gounder, AIR 1966 SC 902 , the Honble Supreme Court while interpreting the proviso added to Section 58 of the Transfer of Property Act, has held as under: "the proviso to this clause was added by Act 20 of 1929. Prior to the amendment there was a conflict of decision 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 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. 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 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. " 20. The stress of the learned counsel for the appellants is again that since the language of the document is clear and unambiguous and it is a document of an outright sale the attendant circumstances were wholly irrelevant for the purpose of determining the nature of the document. The learned counsel for the appellants has tried to distinguish the decisions relied upon by the lower appellate court for taking a contrary view. 21. Learned counsel for the respondent has contended that interpretation of a document is ultimately a question of fact and even if two views are possible on the basis of such interpretation, this Court in exercise of its second appellate jurisdiction should not interfere with the findings of fact recorded by the lower appellate court interpreting a document and holding it to be a mortgage by conditional sale. 22. 22. For convenience Section 58 (c) of the Transfer of Property Act is being reproduced below: "58 (c) Mortgage by conditional tale.- 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 became 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. " 23. A plain reading of the language of the section makes it clear that if the mortgagor has ostensibly sold the property on condition that such payment is being made the buyer shall transfer the property to the sellor, the transaction is called a mortgage by conditional sale and the mortgage a mortgagee by conditional sale, as has been held in various decisions referred to and relied upon by the lower appellate court, particularly with reference to the decision of P. L. Bapuswami (supra) that even in cases if the language is plain and unambiguous it must be in the light of the evidence of surrounding circumstances given its true legal effect. The lower appellate court has given as many as seven surrounding circumstances to hold the document to be a mortgage. It is settled principle of law that interpreting a document on the basis of surrounding circumstances is a question of fact and the same should not be interferred with by the Court in exercise of its limited jurisdiction under Section 100 of the Code of Civil Procedure. 24. In this view of the matter, I am of the view that the finding of fact, interpreting the document dated 13. 8. 1934 to be a mortgage, recorded by the lower appellate court is neither perverse nor against record, as such, is not liable to be interferred with in exercise of the limited jurisdiction under Section- 100 C. P. C. The first submission raised by the appellants counsel accordingly fails. 25. 8. 1934 to be a mortgage, recorded by the lower appellate court is neither perverse nor against record, as such, is not liable to be interferred with in exercise of the limited jurisdiction under Section- 100 C. P. C. The first submission raised by the appellants counsel accordingly fails. 25. The second substantial question of law which has been framed for consideration in the appeal is as to whether the suit is barred by the provisions of Limitation Act. 26. In paragraph 7 of the plaint it has been pleaded that the cause of action for filing the suit arose on 13. 8. 1934, the date on which mortgage was executed and in the year 1948. The date on which the plaintiff became major and in the year 1953 when the period of five years contemplated in the suit for repurchase of the property expired. The suit could have been filed within 30 years thereafter, as such, the suit is within time. The trial Court did not decide issue No. 6 on the assumption that since the document in question was on outright sale, there is no question of deciding the period of limitation for redeeming the mortgage. The lower appellate court has decided issue in favour of the plaintiff- respondent on the ground that the plaintiff is entitled to the benefit ; Section 6 read with Section 7 and Section 16 of the Limitation Act, as it has been proved that the plaintiff become major in the year 1948, hence in view of Sections 6, 7 and 16 of the Indian Limitation Act, the period of limitation shall be computed from 1948. According to Article 61 of the Indian Limitation Act, the limitation to redeem or recover the possession of the immovable property is 30 years, adding 30 years from 1948, the date on which plaintiff became major, limitation for filing suit was upto the year 1978. Since the suit has been filed on 30. 8. 1976, the lower appellate court held the suit to be within time and not barred by law of limitation. 27. Since the suit has been filed on 30. 8. 1976, the lower appellate court held the suit to be within time and not barred by law of limitation. 27. Learned counsel for the appellants has submitted that the lower appellate Court was not justified in applying Section 16 of the Limitation Act to me facts of the present case, as according to him sub-section (3) of Section 16 provides that nothing in sub- section (1) or sub-section (2) applies to suits to enforce rights of pre-emption or to suits for possession of immovable property or of a hereditary office. 28. The contention of the learned counsel for the appellants is that since it was suit for possession of immovable property, sub-section (1) of Section 16 was not available to the plaintiff- respondent. It has further been contended on behalf of the learned counsel for the appellants that Sections 6 and 7 of the Limitation Act are to be read alongwith Section 8 of the Limitation Act. Section 8 of the Limitation Act clearly provides that nothing in Section 6 or in S. 7 will apply to enforce rights of pre-emption or shall be deemed to extend for more than three years from the cessation of disability or the death of the person affected thereby the period of limitation for any suit or application. According to the learned counsel for the appellants the document was executed in the year 1934. Five years period is prescribed for re- conveyance as the period of limitation for filing the present suit began in the year 1939. 30 years period prescribed as period of limitation, brings the limitation for suit upto 30. 8. 1969 and according to Section 8, three years period can further be added the plaintiff was minor on the date the right to sue accrued, as such, the outer limit for filing the suit could have been 13. 8. 1972 whereas the suit has been filed on 30. 8. 1976, as such, the learned counsel has submitted that the suit is patently barred by time further contended that lower appellate court has taken a wrong view of law in holding the suit to be within time. The learned counsel for the appellants has placed reliance on a division bench decision of this Court in Parwan v. Board of Revenue and others, 1987 RD 139, case wherein this Court held that Ss. The learned counsel for the appellants has placed reliance on a division bench decision of this Court in Parwan v. Board of Revenue and others, 1987 RD 139, case wherein this Court held that Ss. 6 and 7 of the Limitation Act are to be read alongwith Section 8 and the maximum period of limitation which can be extended after cessation of incapability to sue is three years. 29. I have given n careful consideration to the aforesaid submission. Section 16 of the Limitation Act is being reproduced hereinbelow for appreciating the controversy involved for consideration : "16. Effect of death on or before the accrual of the right to sue.- (1) Where a person who would, if he were living, have a right to institute a suit or make an application. dies before the right accrues, or where a right to institute a suit or make an application accrues only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such application. (2) Where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, or where a right to institute a suit or make an application against any person accures on the death of such person, the period of limitation shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application. (3) Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of pre-emption or to suits for the possession of immovable property or of a hereditary office. " 30. The aforesaid sections is to be applied to the facts of the present case. The document, which is held to be a mortgage by conditional sale, was executed on 30. 8. " 30. The aforesaid sections is to be applied to the facts of the present case. The document, which is held to be a mortgage by conditional sale, was executed on 30. 8. 1934 Abdul Riyaz one of the mortgagor died in the year 1935, Smt. Haliman, the other mortgagor died in the year 1936 so both the mortgagors died before the period of re-conveyance expired i. e. in the year 1939, so in the present case under S. 16 (1) the period of limitation is to be computed from the time when the legal representative of the deceased became capable of instituting the suit. Admittedly the plaintiff, Chhotey Lal, who has instituted the suit, became major in the year 1948. If the period of limitation i. e. 30 years, is added to the year 1948, the period of limitation for filing the suit comes to 1978. The suit was filed for redeeming the mortgage and for recovery of possession in the year 1976, as such, the benefit of Section 16 of the Limitation is available to the plaintiff. 31. The main contention of the learned counsel for the appellants is that in view of sub-section (3) of Section 16 the benefit of the Section, was not available to the plaintiff since it was a suit for possession of immovable property. 32. For examining this contention various articles of the schedule of the Limitation Act need be referred. Description of suit Period of Limitation Time from which period begins to run. 61. By a mortgagor- (a) to redeem or recover possession of immovable property mortgaged. Thirty years When the right to redeem or to recover possession accrues. (b) to recover possession of immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration. Three years When the mortgagor re-enters on the mortgage property. 63. By a mortgagee- (a) for foreclosursie; (b) For possession of immovable property mortgaged. Thirty years Iwelve years When the money secured by the mortgage becomes due. When the mortgagee becomes 64. for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years The date of dispossession. 65. For possession of immovable property or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to 66. for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years The date of dispossession. 65. For possession of immovable property or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to 66. For possession of immovable property when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition. Twelve years When the forfeiture is incurred or the condition is broken. 67. By a landlord to recover possession from a tenant. Twelve years When the tenancy is determined. 33. The words for possession of immovable property has been used only in Articles 63 (b), 64, 65 and 66. These words are to be compared with words used in Section 16 (3) of the Limitation Act, Section 16 (3) is attracted only for cases covered by Article 63 (b), 64, 65 arid t. s6 of the Limitation Act. In Article 61 (a) and (b) a different terminology has been used i. e. redeeming or recovering the possession of immovable property mortgaged. In case a mortgagor, is to redeem his property from mortgagee and consequence thereof to the possession to be recovered, Section 16 (3) of the Limitation Act is not to be attracted. This is a settled principle of law that when in the same Act two different terminology has been used, the Legislature intended to give different meaning to those terminology. In the present case the Legislature has used two different terminology, one for Article 61 (a) and (b) and the other for Article 63 (b), 64, 65 and 66. In Article 61 (a) and (b) the terminology used by the Legislature to redeem or recover possession of mortgaged immovable property whereas in Articles 63, 63 (b), 64, 65 and 66 the terminology use for possession of immovable property; the same terminology which has been used i. e. for possession of immovable property in Section 16 (3) of Limitation Act. 34. From the analysis of the aforesaid provisions, it is clear that the Legislature intended to extend the provisions of Section 16 (3) only in cases covered by Sections 63 (b), 64, 65 and 66 and not to be cases covered by Section 61 (a) and (b ). 34. From the analysis of the aforesaid provisions, it is clear that the Legislature intended to extend the provisions of Section 16 (3) only in cases covered by Sections 63 (b), 64, 65 and 66 and not to be cases covered by Section 61 (a) and (b ). Had the Legislature intended otherwise the Legislature would have used different language in Section 16 (3) of the Limitation Act, it would have taken in its compass the provisions of Section 61 (a) and 61 (b) also. 35. It is settled principle of law once a mortgage always a mortgage a liberal- interpretation should be extended in construing the period of limitation in cases of redemption of mortgage. A proper interpretation of Section 16 of Limitation Act leads to only conclusion that Legislature never intended to deprive the minors for redeeming the mortgage within a period of limitation from the date they attain majority. 36. On the basis of the aforesaid analysis, I am satisfied that the lower appellate court was justified in holding that the suit of the plaintiff was within time. 37. The learned counsel for the appellants has then submitted that in any case besides Chhottey Lal, Abdul Riyaz had two other heirs, one namely, Zaibunnisa who was the widow of Abdul Riyaz and was major at the time when Abdul Riyaz died and daughter of Abdul Riyaz who attained the majority in the year 1945 and so far as these two heirs are concerned, they lost their fight to recover possession to redeem the property and Chhotey Lal and only a limited share in the property and was not competent to redeem the entire property. 38. The lower appellate court has also dealt with this point and has held that under Mohammadan Law none of the co-heirs can give a discharge without the concurrence of others and in a case where the right to redeem the mortgage executed by a Mohammadan has devolved on his heirs, on his death, they are jointly entitled to institute the suit and unless Chhotey Lal became major the two other heirs were not competent to get the property redeemed. In any case no issue has been framed on this point, neither any such defence was taken by the defendant-appellants on that count, as such, the defendants cannot be permitted to agitate this new point in Second Appeal particularly when no substantial question of law on the aforesaid count has been framed by this Court, while admitting the appeal. In am conscious of the fact that under Section 100 of C. P. C. it is permissible for the Court to permit to agitate new point regarding Substantial question of law. 39. For reasons reported above arid having given my thoughtful consideration on the said question and having regard to the fact that no such issue was framed in the court below neither any such objection was taken by the defendants in the trial of the suit, the said objection cannot be permitted to be taken at the second appellate stage. As such, I refuse to permit the appellants to submit this additional point in support of this second appeal. 40. Likewise two other points have also been submitted by the learned counsel for the appellants. Firstly that the lower appellate court has wrongly recorded a finding that the defendant No. 1 is not a bona fide purchaser for the value of the property in dispute. The trial Court has held in favour of the defendants and has held that the defendant No. 1 to be bona fide purchaser for value of the property in dispute. The lower appellate court has reversed the aforesaid findings and has held that the transfer for the property was made in the year 1965 by Abdul Majid as mortgagee in favour of his wife for dower debt. She had full knowledge of the document dated 13. 8. 1934 which was a mortgage and having full knowledge of the same, the sale-deed was executed in her favour, she cannot be held to be a bona fide purchaser. The finding recorded by the lower appellate court on the said point is also a finding of fact and it does not suffer from any such error of law liable to be interferred with in exercise of jurisdiction under Section 100 of C. P. C. For this reason I refuse to permit the appellants to submit this additional point in support of second appeal. 41. 41. Last submission made by the learned counsel for the appellants is that the right to recover or redeem the property, if the document dated 13. 8. 1934 is held to be a mortgage was a personal right and the heirs of the mortgagor had no right to redeem the mortgage. 42. The learned counsel for the appellants has placed reliance on a Full Bench decision of this case in case of Munaur Hussain v. Zakaria Husssain, 1984 AWC 1. This point was also not, agitated by the defendants-appellants in the courts below nor any issue was framed on the said count. The court while admitting the appeal has not found it be a substantial question of law to be agitated in second appeal in view of the fact that this point was not agitated the defendants in the courts below nor any issue was framed on the aforesaid point, refuse to permit the appellants to agitate this point in second appeal. However, I am also of the view that the decision relied upon by the defendant-appellants is not applicable to the facts of the present case. 43. In the aforesaid decision, the Full Bench of this Court held : "assignment is a transfer of interest of title usually expressed in writing whereby contradicting parties convenient for themselves and their assigns so that upon the happening of certain events the assigns may stand in the shoes of original covenantees. Thus, no one can sue upon a contract unless he be either an original party or the lawful transferee or assignee of an original party. If a contract of re-sale or recoveyance of immovable property is capable of being enforced by or at the instance of a person who is a party to it, there appears to be no reason why a person who obtains the right under it should be deprived of its benefit. * * * * * * From what we have said above, it follows that in cases of agreements of sale and reconveyance or resale of immovable property where a personal right has been conferred, the persons obtaining rights under them would alone be entitled to enforce the same. " The aforesaid decision clearly lays down that if there is no intention to the contrary the heirs of contracting parties will have right to enforce the contract. " The aforesaid decision clearly lays down that if there is no intention to the contrary the heirs of contracting parties will have right to enforce the contract. In the present case the document does not have any intention to the contrary conferring the right only to the mortgagors. The contention of the appellants counsel has no merit and no foundation has been laid down by the defendant-appellants for advancing the aforesaid submission, as there is no material available on record to substantiate the aforesaid contention of the appellants. This point also does not survive on merit and is accordingly rejected. 44. From the above discussion it is clear that the judgment of the lower appellate court does not suffer from any error of law. Both the substantial questions of law framed at the time of the admission of the appeal have been considered and I and clearly of the view that the court below has rightly decided the aforesaid two points. 45. I accordingly affirm the judgment of the lower appellate court and dismiss the appeal of the appellants with costs. Appeal dismissed. .