Judgement

SUBBA RAO, J. : The only question in this appeal is whether the suit document is a Mortgage by conditional sale or a sale with a condition repurchase.

2. The facts that gave rise to this appeal may be briefly stated: On February 2, 1924, the appellants 1 and 2, their father late Matooki Mandal and their uncle late Lila Mandal executed a deed purporting to convey a property of the extent of 12.6 acres in favour of respondents 1 and 2 for a consideration of Rs.2,800/- and put them in possession of the same. In 1950 the appellants instituted title suit No. 73 of 1950 in the Court of the Munsif, 1st Court, Bhagalpur Bihar, for redemption on the ground that the said document was a mortgage by a conditional sale. The contesting defendants i.e. respondents 1 and 2 pleaded that the said document was not a mortgage but an out and out sale and therefore the suit for redemption was not maintainable. The Munsif and on appeal the Subordinate Judge, Bhagalpur, accepted the contention of the appellant and decreed the suit but on second appeal the High Court held that the document was a sale and on that finding the appeal was allowed and the suit was dismissed with costs throughout. The appellants by special leave preferred the present appeal against the decree and judgment of the High Court.

3. The only question in this appeal is whether the said document is a mortgage or sale. As the question turns upon the construction of the provisions of the sale deed, it would be convenient to read the document as the High Court did omitting the unnecessary words:-

1. "We, the executants executed a registered Sudbharna bond, dated 1-3-1923, in favour of Deonath Bhagat and Raghunath Bhagat and received the entire consideration money.

2. We, the executants, are badly in need of some money in cash, for repayment of debt of Sumeri Kapri and are in great need of some more money in cash for meeting the expenses of cultivation, purchasing bullocks and also for meeting the household expenses and repayment of petty debts to creditors.

3. We the executants, cannot arrange the aforesaid money in cash without selling some property.

4. Deonath Bhagat and Raghunath Bhagat aforesaid have not up-till now entered into possession of the Sudbharna property and they are making a demand for the money and it is absolutely necessary to repay the money to the said creditors.

5. Hence on negotiation for sale of the same property with the said Bhagats by way of conditional sale the said Bhagats agreed to purchase our property and to pay money in cash for repayment of the debts of Sumeri Kapri and for meeting other expenses.

6. Hence we, the executants. have sold and vended 12.6 acres of Nakdi jot land for Rs 2,800/- to Deonath Bhagat and Raghunath Bhagat.

7. We declare that in the month of Baisakh 1334 Fasli we shall on repayment of said amount in full and in one lump sum to the said Bhagats, take back the vended property from the said Bhagats and that in case of failure of repayment of the consideration money of this deed of sale in full within the stipulated time, this deed of sale will remain in force and we the executants, or our heirs, shall not be competent to demand the return of the vended property.

8. Out of the consideration money of this sale deed Rs.1,600/- due to the said Bhagats under the bond dated 1-3-1923 was paid up in full and on receipt of the remaining consideration money the dues of Sumeri Kapri amounting to Rs.500 was paid up and with the balance of Rs.700/- we met the above expenses.

9. We, the executants, put the said vendees in possession of the vended property and authorise them to remain in possession thereof and appropriate the produce thereof in such manner as they like and the payment of the rent of the vended land from 1332 fasli remained the concern of the said vendees.

10. If due to a defect in the title the said vendees are dispossessed of the vended property or any portion thereof, we shall be liable to refund the consideration money of the sale