Judgment

BOSE, J.: This is a plaintiffs appeal in suit for redemption of what the plaintiff calls a mortgage dated 15-4-1930. The only question for determination is whether this is a mortgage by conditional sale or a sale out and out with a condition of repurchase If the former the plaintiff succeeds. If the latter he is out of Court.

2. The property covered by the disputed deed belonged to one Bijal Tanti who died leaving a widow Mst. Phaguni and two sons Siban Tanti and Chandar Tanti. On 25-5-1922 Siban Tanti alone executed a simple mortgage in favour of the second defendant for Rs. 25. Then on 6-5-1927 Siban Tanti, Chander Tanti and Mst. Phaguni mortgagee the same property to the first defendant for Rs. 250. This was also a simple mortgage. After this came the transaction in suit dated 15-4-1930. The same three persons executed the disputed deed. This was in favour of the first defendant. The consideration mentioned in the deed is Rs. 634-10-0 due on the second mortgage and Rs. 65-6-0 taken in cash to enable the executants to meet the expenses of certain commutation proceedings under Section 41 of the Bihar Tenancy Act in respect of this very land.

3. The second defendant sued on h