Delay does not preclude plaintiff from obtaining specific performance.

S. Natarajan, J.

1. Plaintiffs 2 and 3, who succeeded before the trial Court, but lost their case before the lower appellate Court, are the appellants. The suit giving rise to the appeal was for redemption of a mortgage, or in the alternative, for specific performance of an agreement or reconveyance and for recovery of possession of the suit property.

2. The case of the appellants is as follows The suit property originally belonged to the appellants (plaintiffs 2 and 3) and time mother, late Adhilakshmi Animal. Adhilakshmi Ammal created an usufructuary mortgage over the property on 1st November, 1939 under Exhibit A-1 in favour of Arunachalam Pillai, father of the first respondent. Subsequently, in order to discharge the mortgage, Adhilakshmi Ammal as well as the appellants executed a mortgage deed by conditional sale under the original of Exhibit A-2, dated 7th October, 1944 and in terms of Exhibit A-2, the earlier mortgage was discharged. Consequently, a relationship of creditor and debtor came into existence between the parties on 7th October, 1944. Arunachalam Pillai, the usufructuary mortgagee and the first respondent were members of a joint family and Arunachalam Pillai acted as manager of the family. The sale deed under the original of Exhibit A-2 was taken by Arunachalam Pillai in the name of his son, the first respondent. It was Arunachalam Pillai, who paid the sale consideration under Exhibit A-2 to the executants of the document. Though Exhibit A-2 was styled as a sale deed, it was indeed a mortgage by conditional sale and it was stipulated in the document that the first respondent should reconvey the property whenever called upon to do so by the appellants. However, if for any reason the Court were to take the view that the transaction under Exhibit A-2 was not a mortgage by conditional sale, but an outright sale, with an agreement of reconveyance, the appellants were ready and willing to pay the amount of Rs. 1,000 mentioned in the document. Subsequent to the execution of Exhibit A-2, there was a partition in the first respondent's; family and in that partition, the property was allotted to' the share of the first respondent's son, by name, Velayutham Pillai. Velayutham Pillai died about two years before the filing of the suit and his mother, the second respondent is the sole heir entitled to succeed to his properties. Adhilakshmi, mother of the appellants also died about ten years ago and her right in the suit property, has devolved on her husband, the first plaintiff (since dead) and her sons, the appellants 1 and 2 herein. During Adhilakshmi Animal's lifetime, a notice was issued on 31st March, 1962 on her behalf and on behalf of the appellants regarding the redemption of the mortgage by conditional sale; but, there was no reply to the said notice. Hence, the appellants had to seek the intervention of the Court for redemption of the mortgage by conditional sale, and in the alternative, for specific performance of the right of reconveyance.

3. The suit was contested by respondents 1 and 2 by means of a written statement filed by second respondent, which was adopted by the first respondent. Therein, it was stated that the transaction, dated 7th October, 1944 was not a mortgage by conditional sale, but, an outright sale. No doubt, the document contains a stipulation regarding reconveyance of the property, but the said condition is opposed to law and void, since no time-limit has been prescribed for enforcing the right of reconveyance. As such, the stipulation amounted to a restraint on the powers of alienation of the vendee and offends the rule against perpetuities. Moreover, the restraint clause was an interpolation in the document and it had been surreptitiously introduced in the document without the knowledge of the first respondent. At the time the sale was obtained under the original of Exhibit A-2, Arunachalam Pillai and the first respondent were divided members and hence, there was relationship of debt