N.S. Ramaswami, J.- The only question in this appeal under the Letters Patent is whether the document, Exhibit A-I, is a mortgage by conditional sale or whether it is an outright sale, with a right to re-purchase. The suit was for redemption by the executants of the document Exhibit A-1, on the footing that that was a mortgage by conditional sale. The defendant contended that it is an outright sale with a right to re-purchase and that the plaintiffs having not exercised their right to re-purchase, they have no further remedy. The first two Courts held that the document was an outright sale and therefore the plaintiffs were not entitled to redemption. However, on a second appeal filed by the plaintiffs, Venkatadri, J., reversed the finding of the Courts below and allowed the appeal, holding that Exhibit A-I is a mortgage by conditional sale. Now, the defendant in the suit has filed this Letters Patent Appeal.

2. The terms of Exhibit A-1 are that the property in question was sold for a sum of Rs. 3,826-50, consisting of five items of consideration, and the property would be reconveyed if the vendors (the plaintiffs in the suit) repaid the said sum of Rs. 3,826-50 after five years and within seven years from the date of the document. The document is styled as Admittedly, the document comes under the purview of section 58 (c) of the Transfer of Property Act, as amended by Act XX of 1929. That provision says that where the mortgagor ostensibly sells the mortgaged property, on condition of such payment of the mortgage amount being made, the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale. In the present case, the condition to re-purchase is in the very document of the ostensible sale. Therefore it is not contended by the learned Counsel for the defendant-appellant that this document does not come under the purview of section 58 (c) of the Transfer of Property Act. That being so, the burden is heavy on the defendant to establish that the document is really an outright sale. In Chunchun Jha v. Sheik Ebadat Ali1 , it is pointed out that the Legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages and that therefore it is reasonable to suppose that the persons, who, after the amendment of section 58 (c) of the Transfer of Property Act, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words, and if the conditions of section 58 (c) are fulfilled, then the deed should be considered as a mortgage. However, the learned Counsel for the appellant referred to three other decisions of the Supreme Court and contended that these decisions support his contention that this document is really an outright sale and not a mortgage by conditional sale.

3. In Bhaskar v. Shrinarayan2 , the finding is that the document in question in that case was really a mortgage by conditional sale. The learned Counsel points out that the circumstances that were present in that case are not present in the present case, and therefore, the document in the present case should not be held to be a mortgage by conditional sale. It is needless to point out that there cannot be two cases exactly similar on facts. The mere fact that the circumstances that were present in the above case are not so present in the present case is not a ground to hold that the document Exhibit A-I is not a mortgage by conditional sale. We would presently advert to several other circumstances which do indicate that the parties intended that the document is only a mortgage by conditional sale and not an outright sale. In Bhaju Mandal v. Dhebnath Bhagat3,on the facts of that case, it was held that the transaction was a sale and not a mortgage by conditional sale. That decision would not help the appellant in the present case. P. L. Bapuswami v. N. Pattay Gounder4 , which is also r

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