Aug
10
2017


The Supreme Court of India in the matter of Bibi Fatima vs. M. Ahamed Hussain, Civil Appeal no. 7023/2012, decided on 1st August, 2017 opined on the question that whether a transaction is a mortgage by conditional sale or a sale with a condition of re-purchase and stated the method of gathering the underlying difference between the same. The Apex court held that the question has to be decided on the basis of interpretation of the document itself. The intention of the parties is a determining factor and the document. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case 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 into the surrounding circumstances to determine what was intended.








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