Raj Kishore Prasad, J.

1. This is an appeal by the defendant from the concurring decision of Mr. Kanhaiya Singh, then a Subordinate Judge at Patna, affirming the decision of the first Court, decreeing the plaintiffs suit for redemption.

2. On 6th June, 1932, Bhagwan Das Mahton, the father of the plaintiff, for self and as guardian for the plaintiff and his deceased brother Dhurkheli Mahton, along with his mother-in-law, Mst. Bipti, executed a baibulwafa deed in respect of plot 680, appertaining to khata 339, having an area of .71 acres, in village Sandalpur, in favour of Bhagera Ram Mahto, the deceased husband of the defendant-appellant, for a term of five years from 1340 to 1344 Fasli.

3. The case of the plaintiff is that the transaction between the parties is a mortgage by conditional sale; and, since the mortgage has not been foreclosed, he is entitled to redeem it on payment of the money mentioned in the bond and recover possession of the mortgaged property. The defendant refused to accept the money, and, therefore, he deposited it under Section 83 of the Transfer of Property Act, but, in spite of the service of the notice thereof, the defendant did not give up possessi