JUDGMENT
Walsh, J.
1. This case has been referred to the decision of two Judges. For my own part, I think it is concluded by the findings of fact. It is quite true that the mere interpretation of a document standing by itself is rarely, if ever, a question of fact but it is equally true that where a document leaves part of the subject-matter ambiguous, evidence may be given on both sides to remove the ambiguity. It is not disputed that the document in this case is ambiguous in the sense that a stranger reading it, knowing nothing about the parties or the property, might think, and reasonably think that it dealt with the proprietary rights of the property, whereas persons concerned in the transfer might show to the stranger, or any other third party including the tribunal that inference was not well founded, because before the transfer and after the transfer, they themselves, by their conduct showed that they never intended to deal with the ownership but with a limited interest. The foregoing statement, I think, fairly accurately represents the circumstances under which the construction of a document may be a question of fact and those under which it mast be treated as a mere question of law.
2. Having regard to the circumstances in this case that the document on the face of it is capable of justifying either inference, the Courts below were right in considering the evidence and the Munsif has expressed, as well as any body could do, the reasons for finding that the parties merely dealt with and intended to deal with the mortgagee rights only. That is a finding of fact, which we cannot interfere with even if we disagreed with it. It seems to me that the law applicable to the various contingencies of fact which may arise in a matter of this sort is well and compendiously summarised on pp. 35 and 36 of 49 Mad. Venku Shettithi v. Ramachandrayya A.I.R. 1926 Mad. 81. Having regard to the findings which I have mentioned, this case comes within class 2 of the four classes there summarised. It, therefore, follows that Article 134 does not apply and that the Courts below were right and that this appeal must be dismissed with costs.
Kendall, J.
3. I agree. The question we have had to decide was whether Article 134, Indian Limitation Act, would apply to this case or not. That depends on whether the transfer by Mt. Radha in 1891, in favour of the predecessors of the present appellants purported to be a transfer of a mortgagee right or of a full proprietary right. It appears to me that what has to be determined in a case where Article 134 is relied on by one of the parties is whether any title adverse to that of the original mortgagor has been set up by the deed of transfers concerned.
4. In the present case one Mir Ali executed a usufructuary mortgage in 1875 in favour of one Param Sukh. In 1891 Param Sukh’s widow Mt. Radha hypothecated certain property including that which was the subject of mortgage in 1875 to Puttu Lal and Madho Ram, who in 1899 obtained a decree for the sale of the property hypothecated to them in the deed of 1891. They obtained possession of the property by auction-sale in execution of their own decree. The successor of the original mortgagor Mir Ali then sued for redemption.
5. If in 1891 Mt. Radha really intended to transfer the full proprietary right in the property in suit to her transferee, she would be setting up a title adverse to that of the original mortgagor Mir Ali, and the result would be that Article 134 would apply. The appellants have relied on the deed of 1891, in order to show that the intention of both parties was that the full proprietary right should be transferred. There is no passage in the deed itself that definitely purports to convey a full proprietary title. All that can be said in favour of the appellants is that no mention is made of the fact that Mt. Radha only possessed a mortgagee right in the property. The question being whether she was transferring a mortgagee’s right or mortgagor’s right, and that question finding no answer from the wording of the deed itself, it would appear to be a natural presumption that what she transferred was the right which she possessed, namely, the mortgagee’s right. It has been shown in evidence that her transferee was subsequently recorded as the mortgagee and this is a definite corroboration of the presumption which I think can fairly be made from the document itself. In these circumstances it appears that Article 134 cannot be applied and the appeal must be dismissed with costs.
