V. RAJAGOPALA REDDY, J.

( 1 ) THIS Court by order dt. 13-8-1992 in C. R. P. No. 289/91 directed the subordinate Judge, Pithapuram, to consider the admissibility of Ex. B-2 filed in o. S. No. 9/89 on his file and to collect the deficit stamp duty with penalty, if it is insufficiently stamped and also to consider whether the document requires registration and if the document is being relied upon only for collateral purpose, the same may be marked even though it was not registered. In pursuance of the said order, the learned Subordinate Judge considered the document and found that Ex. B-2 was not a conditional sale agreement but was usufructury mortgage and it requires registration. It was also found that it was not relied upon for collateral purpose and that the document was unstamped. The petitioner was directed to pay the stamp duty of Rs. 1,495/- and penalty of rs. 14,950/-, aggregating to Rs. 16,445/- on or before 8. 2. 93. This order is in question in the Civii Revision Petition.

( 2 ) THE 1st petitioner is the 3rd defendant in the suit. The suit filed by the 1st respondent is for partition of plaint schedule property whichis in possession of the plaintiff and for allotment of a share to him. 1st defendant is his son. 2nd defendant is his unmarried daughter and the 3rd defendant (1st petitioner) is his brother. Defendants pleaded oral partition with their twoother brothers. It is specifically averred in the plaint that the plaintiff incurred a debt of rs. 15,000/- from the 3rd defendant by way of owelty and for discharging the said debt, he executed Ex. B-2 in favour of 2nd defendant. The 1st petitioner in his written statement has also averred that in the partition the plaintiff paid rs. 9,500/- only towards his share of Rs. 24,500/- and that he owed rs. 15,000/- to him and when he pressed for payment he put him in possession of the land executing Ex. B-2, "a conditional sale agreement", since he offered to purchase the same.

( 3 ) IT is contended by the counsel for the petitioner, relying upon the recitals of the document, that Ex. B-2 is a conditional sale agreement and therefore, does not require registration. It is also contended that the relationship between the parties and the surrounding circumstances will go to show that the plaintiff agreed to sell the land in his favour, however with a condition to repurchase the same; if he could not repay the advance taken within a specified time, failing which the plaintiff shall have to execute the sale deed. On the other hand the learned counsel for respondents 2 and 3 argued that it was a usufructury mortgage and therefore, inadmissible in evidence for want of registration.

( 4 ) SEVERAL decisions have been referred to at the bar in support of their respective contentions. In the court below the petitioners case was that ex. B-2 was a sale with a condition of retransfer, but not a mortgage and the court ultimately found that it was a usufructury mortgage. However, the counsel for the petitioner before me argued that Ex. B-2 is only a conditional agreement of sale but not a mortgage. The decisions cited highlight the distinction between a mortgage by conditional sale or a sale with a condition to repurchase, in either case the document has to be properly stamped and also registered. Since the counsel for the petitioners argues that Ex. B-2 was a conditional agreement of sale, I will have to consider the nature of the document to find whether it is an agreement of sale or mortgage. In Bhojit Mandal vs. Debnath Bhagat the distinction between mortgage by conditional sale and sale with condition of repurchase is brought out. The document is a mortgage if there is a relationship of debtor and creditor and it is sale with a condition of repurchase if there is an out and out sale whereby the owner transfers all the rights in the property reserving a personal right of repurchase. It was held that the intention of the parties has to be ascertained in such a case on a consideration of

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