The distinction between a mortgage by conditional sale and a sale with a condition of repurchase depends on the facts and circumstances of each case. The real crux is whether title is to be re-conveyed by the execution of another sale deed and whether that term has been stipulated in the deed itself which is the subject-matter of interpretation.

Tarkeshwar Nath, J.

1. These two first appeals are by the plaintiffs of two title suite. First Appeal No. 240 of 1956 arises out of Title Suit No. 22 of 1955 whereas the other First Appeal No. 446 of 1956 arises out of Title Suit No. 15 of 1955.

2. The facts giving rise to these litigations are these. The plaintiff of Title Suit No. 22 of 1955 obtained a decree for money against defendants 2 to 4 (defendants 2nd party) for a sum of Rs. 19,112/8/- in Money Suit No. 37 of 1953 and filed Execution Case No. 77 of 1954 for executing that decree. Similarly, the plaintiff of Title Suit No. 15 of 1955 obtained another money decree fur a sum of Rs. 4,946/3/3 pies in Money Suit No. 107 of 1953 against the same defendants and there was an Execution case No. 90 of 1954 in respect of that decree. It appears that defendant No. 1 (defendant 1st party) of both the suits got a deed dated the 20th of April, 1950 (Exhibit E) executed in his favour by Hari Ram Jalan, husband of defendant No. 4 and father of defendants 2 and 3, in respect of a house in the town of Muzaffarpur for a sum of Rs. 10,000/-. The controversy between the parties in the present case was as to whether this deed was a mortgage by conditional sale or an out and out sale with a condition of repurchase.

In the two execution cases defendant No. 1 filed applications under Order 21, Rule 58 of the Code of Civil Procedure claiming that he was the owner of the attached house in question and it was not liable to sale. On the 10th of February, 1953, his objections were allowed and the executing court came to the conclusion that the deed dated the 20th of April, 1950, was an out and out sale with a condition of repurchase. It is alleged, further, that the disputed property was sold on the 15th of November, 1954, in Execution Case No. 77 of 1954 and it was purchased by Satyadeva Chaudhary, defendant No. 5, (defendant 3rd party) of Title Suit No. 22 of 1955. Defendants 1 to 4 are common in both the suits. In these circumstances, the plaintiffs of the two suits sought for declarations that the deed dated the 20th of April, 1950, executed by Hari Ram Jallan, husband of defendant No. 4 and father of defendants 2 and 3, in favour of defendant No. 1 (defendant 1st party) was a mortgage by conditional sale and not an out and out sale with a condition of repurchase.

3. The suits were contested by defendant No. 1 mainly on the ground that the said deed was really a sale with a condition of repurchase and not a mortgage by conditional sale as alleged by the plaintiffs. His contention found approval in the trial court, and the Additional Subordinate Judge on a consideration of the evidence came to the conclusion that the said deed dated the 20th of April, 1950, was not a deed of mortgage by conditional sale, but, it was an out and out sale with a condition of repurchase. On that finding, he dismissed both the suits. Hence the plaintiffs have preferred these appeals.

4. The question which arises for consideration in these appeals is as to whether the deed dated the 20th April, 1950, was a deed of mortgage by conditional sale or a deed of sale with a condition of repurchase. In order to ascertain the intention of the parties, it is much better to consider the various recitals of the document itself, It appears that the nature of the document, according to the description in the deed itself, was a deed of sale for a definite period, and the amount of consideration was Rs. 10,000/-. Mr. Kailash Roy for the, appellants has referred to the following portion of that document :

""Hence I, the executant, desired to take loan from any creditor and to increase the capital of grain business so that I might expect considerable profit out of a big capital."

Learned counsel submitted that the word "loan" in this document was significant and an inference should be drawn that the effect of this transaction was that of a mortgage and not a sale. This Word "loan, however, cannot lead to that inference. AS I