- (1.) Panchanan and his mother were owners of the suit property. They took Rs. 2,000 from Brojogopal, the Defendant, executed on March 22, 1945, a document of lease in the Defendant's favour in respect of suit property and gave him possession of it. There was a term in the document that the lessors would, get back possession of the property on cancellation of the lease if they repaid Rs. 2,000 taken by them at the time of execution of lease within five years. They intimated Brojogopal on February 27, 1950,, of their intention to repay and to retake possession, remitted the sum by money order and started the suit, when the same was returned refused on March 21, 1950, for recovery of possession with mesne profits on a declaration that the lease had stood cancelled. They alternatively prayed for recovery of possession by way of redemption on a declaration that the document of lease was really a mortgage. 2 The Defendant resisted both the alternative prayers. His defence was that the document of lease in his favour was a permanent lease ; that it could not be and was not a mortgage ; that the stipulation in the lease for cancellation of it on repayment of Rs. 2,000 was void ; that the lessors agreed not to enforce the said stipulation taking a further sum of Rs. 500 later; that thereafter he had made further costly constructions on the land without objection from or with the knowledge of the lassos; that the lessors were, therefore, not entitled to ask for return of possession of the property to them; that he could not be removed from the property except after termination of his tenancy in accordance with the provision of the West Bengal Premises Tenancy Act, 1956. 3. The learned Subordinate Judge decreed the suit. He had held that the document dated March 29, 1945, was not a lease as not bilaterally executed by both the Defendant and the Plaintiffs; that the stipulation for cancellation in the said document was void in law because of the provisions of s, 10 of the Transfer of Property Act; that the defence that the Plaintiff took further sum of Rs. SCO after the lease of March 29, 1945, agreeing not to enforce the stipulation as to cancellation of lease, had not been proved or was untrue; that the Defendant made no further or new constructions on the land ever after the lease; that the document dated March 29, 1945, on its proper construction was really a mortgage; that the Plaintiffs having repaid the loan of Rs-2,000 was entitled to get back possession by way of redemption ; and, that there was no lease of the property to the Defendant to attract either the Transfer of Property Act or the West Bengal Premises Tenancy Act. The Defendant preferred an appeal to the District Judge. 4. The learned Additional District Judge, who heard the appeal, affirmed the findings of the Trial Court that the Plaintiffs did not lake any further sum after the execution of the document dated March 29. 1945, and that the Defendant did not make any new construction on the land and that the document had not created any lease, he however, reversed the finding of the learned Subordinate Judge on life alternative case of (he Plaintiffs holding that the document dated March 29, 1945, was not a mortgage and could not be given effect to, as such, as not properly proved or admitted in evidence. He further held that the Defendant was a tenant of the suit property from month lo month and there could be no decree for recovery of possession without valid determination of his said tenancy. 5. The learned Additional District Judge considered only one question framing it in these words: The only question for determination in this appeal is whether or not the transaction between the parties was a lease or a mortgage and whether or not the Plaintiffs-Respondents were entitled to recover possession of the suit property and other reliefs as prayed for. He recorded his decision on that sole question as follows: It has been held above that the Plaintiffs-Respondents have not proved due execution and attestation of the document according to law. And In view of what has been stated above there is no escape from the conclusion that the Appellant was a lessee under the Respondent from month to month. The document in question did not operate as the valid lease of suit property. He then interpreted the document dated March 29, 1945, and held, having regard to the above facts and circumstances it must be held that there is no legal evidence to show that Respondent executed any mortgage in favour of the Appellant. It must, further, be held that the document in question did not evidence a mortgage as held by the learned Subordinate Judge. His decision, on the sole question on which he reversed the finding of the learned Subordinate Judge, is challenged in this appeal. 6. The learned Additional District Judge first concluded that the document dated March 29, 1945, (Ex. I) was wrongly admitted in evidence as a mortgage without proof of its execution or attestation- After making that conclusion he proceeded to consider whether the document, Ex. I, was a mortgage as stated by the Plaintiffs and decided that it was not, disagreeing with the learned Subordinate Judge. It was submitted that the learned Additional District Judge was wrong in both the conclusions. The document Ex. I is the same as the document Ex. B. The learned Additional District Judge did not notice that the document in question was also put in evidence by the Defendant. The document. was admitted without objection and on its formal proof being waived by the parties. The decision in Banwari Prasad v. Bigni Kuer, 1927 AIR(Pat) 131 relied on by the learned Additional District Judge is distinguishable on facts. The proof of the document in that case was not waived and there was a -clear denial of the execution in that written statement, A party cannot be required to prove, for its admission, execution or attestation of a document, formal proof of which has been waived by the parties at the trial. Both the parties to the suit relied on this document to prove or rest their respective cases. There is no challenge in the written statement as to the execution of the document or its attestation. The document was executed as a lease and not as a mortgage. The case of the Plaintiffs is that the document, on its proper interpretation and construction, should be held to be a mortgage. Proof of execution or attestation of such a document was not required for its admission in evidence. It may here be noted that the suit is by the execution of the document. As such there is no question of denial of its execution or attestation, particularly when the Defendant also relied on the execution of the document to support his own case of lease. The dispute in the case was as to the construction of the document. There is nothing in the language of Section 68 or Section 70 of the Indian Evidence Act or in Jaikaran Das v. Pratap Singh, 1940 AIR(Cal) 189 to hold that document, Ex. I (Ex. B), marked in evidence without objection and on waiver of its proof, has been wrongly admitted in evidence or cannot be interpreted to find out the real nature of the transaction made by that- The learned Additional District Judge fell into error in holding that the document Ex. I or Ex. B had not been legally admitted in evidence and could not be considered for the purpose of deciding the suit. The document has been rightly admitted in evidence as a lease and is not to be excluded from consideration to see if that, in fact, created a mortgage. 7. It is necessary to construe the document Ex. I to decide whether or not the Plaintiffs are entitled to alternative relief. They are not entitled to any relief on their first prayer as held by the Courts below. That case was also urged in this appeal. 8. In construing a document as to whether or not it is a lease or a mortgage, the test to be applied is if there is a provision for redemption, express or implied, or if the premium for the lease is advanced as a loan or if it is a security for the payment of any money. To decide whether the document is to be treated as a mortgage or a lease, the intention of the parties should be looked into. The intention of the parties has to be gathered from the internal evidence furnished by the document itself with such light as would be derived from the surrounding circumstances in which document had its birth. That is the decision in Meenakshisundara Mudaliar v. Rathnasvami Pillai,1919 AIR(Mad) 322 With respect, I agree with that view. If the transaction is one of mortgage the fact that it has been called a lease will be quite irrelevant. It is clear from the document Ex. I (= Ex. B) that in consideration of payment of Rs. 2,000 the lessee was placed in -possession of the lease-hold property. There is an express term fixing a definite time for repayment of the sum. The term is that the Defendant will have to hand back possession to the plain tiff at the end of five years but only on return of the sum of Rs. 2,000 to him at any time within that period of five years. That is a specific provision for redemption in that it provides for repayment of whole of the premium by a certain date and for return of the lease-hold properties on such payment cancelling the lease. -The document also shows that the Defendant shall not mutate his name in respect of the properties in municipal books before five years, fixed for' redemption of the mortgage, and is to get only Rs. 2,000, i.e. the premium paid if there is any acquisition of property within five years, and that the balance of the award money on such acquisition will go to the Plaintiff wholly though on an acquisition after five years the Plaintiffs are to get only the landlord-lessor's share and the remainder, will go to the Defendant. This shows that the premium was advanced as a loan and lease-hold property was given to the Defendant as a security for repayment of that sum. There is a provision for payment of interest on the sum, though not expressed in words. The property, on the Defendant's own evidence, fetches an income of Rs. 240 a year. The rent reserved in terms of the document is only Rs. 12 per year. This shows that the difference (i.e., Rs. 240 minus Rs. 12) is to be adjusted towards payment of interest only. The Defendant made out a case in the written statement that a further payment had to be made by him to get a cancellation of the provision for return of the property on repayment of the entire premium. Payment of rent, within the period of five years, the wada period of the mortgage, is not, for that, inconsistent with its character as a mortgage. Only a part of the yield from the property was arranged to be paid by way of rent. There is again a term in the document that the Defendant is to keep the property in the condition when it is let out for five years without making any alteration or addition. But, it has also been provided that he shall have such rights, even of demolishing the structures, after the expiry of that period of five years. It is stated in the document that the Defendant is being granted a lease in perpetuity subject to payment of rents and municipal taxes that are payable or may be assessed in future. But that provision is hedged in by the other terms already referred to, showing that the permanency of the lease will come in only after the elapse of the first five years during which the Defendant shall not have any right in property as a tenant to mutate his name or to make any addition or alteration in the construction on the property. The intention of the parties is easily gathered from the language of the document as a whole giving due weight to all its terms in proper context. The internal evidence furnished by the document itself and the light that the surrounding circumstances throw on it, clearly establish that the document Ex. I, on a proper construction, is a mortgage. The learned Additional District Judge's decision to the contrary has not been right. The Plaintiff is entitled to the alternative relief in the suit. 9. The result is that the appeal succeeds and is allowed with costs. The judgment and decree of the first Appellate Court are set aside and those of the Trial Court restored.;