1. A transaction may be construed as a mortgage by conditional sale even if it contains words and phrases indicating a sale. 2. Non-joinder of a co-mortgagor or his or her heirs is not fatal to a suit brought by a co-mortgagor for redemption.

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 possession over the suit lands, and, as such, the plaintiff was obliged to bring the suit for redemption, out of which the present appeal arises.

4. The suit was contested by the defendant. Her defence was that there was no relationship of mortgagor and mortgagee between the parties, and, as such, the plaintiff had no right to redeem. Her case was that the transaction between the parties was not a mortgage by conditional sale, but an absolute sale with a reservation of the right of purchase by the vendor.

She, therefore, contended that since the right reserved by the deed was not exercised by the vendor within the time" limited by the agreement, the right of reconveyance ceased to have any effect, and as such, the suit was misconceived. The defendant further contended that the suit was not maintainable because of non-joinder of the heirs of Mst. Bipti, the co-mortgagor.

5. The Courts below concurrently held that the transaction between the parties was a mortgage by conditional sale, and, that the non-joinder of the heirs of Mst. Bipti did not entail the dismissal of the suit. On these two findings, the first Court decreed the plaintiffs suit, which was affirmed, on appeal by the defendant, by the Court of appeal below.

6. Mr. Rameshwar Prasad Sinha, in support of the appeal, reagitated the above mentioned two objections, which were taken by the defendant in the Courts below.

7. The first question for our consideration, therefore, is whether the baibulwafa deed dated 6th June, 1932, which is the basis of the suit, is a mortgage by conditional sale, or a conditional sale with the reservation of a right to repurchase.

8. The above deed is Ext. B, and, it has been, officially translated in this Court. This deed has been called baibulwafa deed, which has been translated as "conditional sale". The material terms of the document, omitting the unnecessary portions of it, are in these terms :

"When at the end of 30th Jeth 1344 Fs. the term of the conditional sale will expire, I (sic) the executant and the heirs and representatives of us (sic) the executants shall repay the consideration money, amounting to Rs. 1320.00 (one thousand three hundred and twenty) and will give up his possession and occupation of the property covered by this deed of conditional sale and (we) shall enter into sir possession thereof.

If within the due date of payment, we the executants like to pay (the said amount) at the end of 20th Jeth (of any year), Bhagera Ram aforesaid will have no objection to accept the money spent over spade work in the field if spade work be found to have been done in the field, besides the consideration money, and remove (his) possession and occupation therefrom. After (the expiry of) 30th Jeth, 1344 Fs., Bhagera Ram Gope aforesaid or any of his heirs and represent