Judgment

KANIA, J.:- This is an Appeal against the judgment of a Division Bench of the Calcutta High Court on leave granted by this Court under Article 136 of the Constitution of India.

2. The Appellants before us are the heirs and legal representatives of the original plaintiff who was unsuccessful in both the Courts below. After the High Court decided the appeal the original defendant died and the Respondents 1 (a) to 1(c) are the heirs and legal representatives of the deceased defendant who has been mentioned as Respondent No. 1. Respondent No. 2 is merely a pro forma Respondent. It may be clarified that when the appeal was decided by the Division Bench of the Calcutta High Court the defendant was the only respondent.

3. The facts necessary for the disposal of this Appeal are as follows :

The original plaintiff filed a suit in the Court of the learned Subordinate Judge, Seventh Court, Alipore, District, 24 Parganas, for a declaration that a certain transaction effected by a deed of sale dated 28th February, 1968 executed by him in favour of the defendant, the Respondent No. 1 (deceased) herein, is, in substance, a loan transaction and for taking accounts under Section 36(l) of the Bengal Money-Lenders Act, 1940. For the sake of convenience, we propose to refer to the parties, namely, the original plaintiff who was the predecessor in title of the present Appellants and the Respondent No. 1 by their description in the suit.

4. The case of the plaintiff was that he was the owner of a certain land situated a Biren Roy Road West in Mouza Sarkelatpur (commonly known as Gangarampur). This land was purchased by the plaintiff from his brother-in-law, Saral Kumar Mitra, by a deed dated March 12, 1954. In 1961 he constructed five shop rooms on this land and let out two of them to the defendant for carrying on the defendants business of running a medicine shop there. Being in need of money for diverse causes and reasons, the plaintiff was indebted to the defendant, with whom he was on close terms, to the tune of Rs. 6,000/-up to January, 1968. In February, 1968 the plaintiff took a further loan of Rs. 9,000/-from the defendant to construct certain rooms on the first floor above the shop rooms for accommodation of the defendant. As a gesture of goodwill, the plaintiff wanted to secure the said loan by creating security on the said property by way of a mortgage. It is the further case of the plaintiff that this loan was secured voluntarily by the plaintiff by a sale deed of the part of his lands on which the said shops were constructed and some adjoining land described in the sale deed together with the constructions thereon to the defendant on the condition that the defendant would execute an agreement for reconveyance of the same. We propose to refer to the said land and the constructions thereon as the suit property. It was agreed that the defendant would adjust and set-off all the rent payable by him and the rent of the other two rooms in the occupation of defendants relations towards the principal and interest payable by the plaintiff. The plaintiff further pleaded that certain open space covered by the said ostensible sale deed would be used by the defendant for the purpose of the poultry business to be run by the defendant. The defendant prepared two drafts, one for the Kobala (sale) and the other for an agreement for reconveyance. He showed them to the plaintiff and took back the draft agreement for reconveyance. The draft sale deed was left with the plaintiff for being engrossed, executed and registered on 28th, February, 1968. The arrangement was that on that day the defendant would also attend the registration office with the agreement duly prepared and both the parties would register their documents on the same day. The plaintiff got the sale deed registered but the defendant contrary to his assurance, did not turn up at the registration office but assured the plaintiff that he would execute the deed as agreed .Ultimately, the def