AJIT KUMAR SENGUPTA, J.

( 1 ) THE question of law involved in this appeal is whether the document executed by the plaintiff's father in favour of the first defendant is, in its true effect, mortgage by conditional sale or an outright sale. The facts of the case leading to the present appeal preferred by the plaintiff are set out hereinafter.

( 2 ) THE plaintiff, Sm. Swarnalata Tat, instituted the suit for declaration that the transaction between the plaintiff's father and the Defendant No. 1 made on 9th December, 1968 was a loan transaction and that the deed in question was an ostensible sale deed as a security for repayment of the loan taken by the plaintiff's father from the Defendant No. 1 and for a declaration that the said loss (loan) was repaid. The plaintiff also claimed a decree for permanent injunction restraining the Defendant No. 1 from claiming any right of ownership in the property in suit in terms of the deed of sale.

( 3 ) IT has been alleged by the plaintiff that she is the sole heiress and legal representative of her late father Tara Pada Pal who died on 2nd May. 1971. Her father owned the properties described in the schedule to the plaint. After the death of the plaintiff's father the plaintiff allegedly had been in possession of the properties in her own right a. s legal heiress through the Bhagidar, the pro forma defendant No. 2. The said Bhagi-dar was inducted into the land in dispute for cultivation of the suit land and was in possession of the land in suit as Bhagidar since the time of the plaintiff's father. It has further been alleged that the defendant No. 1 has close relationship with the plaintiff's father who secured a loan of Rs. 800/- from the defendant No. 1 by means of an ostensible deed of sale for Rs. 1,200/- which included interest of Rs. 400/- for 2) years at the rate of 20% per annum. It has also been alleged in the plaint that the value of the suit property would be around Rs. 3,000/ -. The said deed was executed and registered on 9th December, 1968 by the plaintiff's father in favour of the defendant No. 1 in respect of the land in suit as security towards repayment of the said loan with interest by means of an oral agreement made by the defendant No. 1 in favour of the plaintiff's father on the same day. It has further been alleged that the said loan was taken by the plaintiff's father for the purpose of his family expenses other than commercial purpose and the defendant No. 1 to avoid the stringency of the Bengal Money Lenders Act, had mentioned the alleged purpose as commercial purpose in the said deed. It is the case of the plaintiff that the plaintiff's father and the defendant No. 1 agreed that the property in suit would remain in the possession of the plaintiff's father. It is also the case of the plaintiff that the plaintiff's father repaid Rs. 1,200/- through the plaintiff's husband when the plaintiff's father was lying seriously ill in Mayo Hospital, Calcutta. Thereafter, the defendant No. 1 was requested by the plaintiff's father through the plaintiff's husband to execute a deed of relinquish-ment in favour of the plaintiff's father but the defendant No. 1 avoided the same on various pleas. Since the defendant No. 1 refused to execute and register the deed of relinquishment, the plaintiff was compelled to institute the said suit allegedly under the Money Lenders Act praying for the declarations as stated earlier.

( 4 ) THE defendant No. 1 filed the written statement and denied the allegations made in the plaint. It was contended, inter alia, by the defendant No. 1 that the impugned transaction was out and out sale and it was not a loss (loan) transaction. It was further alleged by the said defendant that the plaintiff's father put him in possession of the said suit property and instructed the pro forma Defendant No. 2 to deliver the share of produce to defendant No. 1 after the date of the suit property. According to defendant No. 1, he realised share of produce from the d

Click Here to Read the rest of this document