Deed held to be mortgaged by conditional sale.

This second appeal is against the judgment and decree dated 8. 1996, in A.S. No.2 of 1993, on the file of Principal Sub-Judge, Srivilliputhur, confirming the judgment and decree dated 30.7.1983, made in O.S. No.64 of 1993, on the file of District Munsif, Aruppukottai.

2.. The appellants are the defendants 2 and 3 in the suit in O.S. No.64 of 1983, for a final decree for redemption by directing the defendants to receive a sum of Rs.800 deposited in court and execute reconveyance. The respondents 1 to 3 are the 2nd plaintiff, 1st defendant and the legal representative of the deceased 1st plaintiff respectively. The plaintiffs executed a deed of mortgage by conditional sale on 27. 1978 in favour of the defendants 2 and 3 for Rs.800. The period fixed for repayment of money is three years. The defendants were put in possession of suit property, on the date of the execution of the document. Even before the expiry of the period of three years, i.e., in July, 1981, the plaintiffs requested the defendants to receive Rs.800 and execute the document of reconveyance. Since the defendants were not amenable for the same, on 8. 1981, plaintiffs issued a lawyer’s notice. The defendants sent a reply on 8. 1981, stating that the period three years has already expired. Hence the plaintiff filed a suit against the defendants.

3. The case of the appellants is that the document dated 27. 1978 Ex.B-1, is not a mortgage by conditional sale, but is an absolute sale with a condition to reconvey the same, on making the repayment within three years pursuant to which they are enjoying the suit property, and that since the plaintiffs have not paid the same within the stipulated time, they have lost their right of reconveyance. So, the main issue before the trial court was whether Ex.B-1 is a mortgage by conditional sale or is an outright sale with a condition to reconvey in the event of repayment.

4. On consideration of the entire material produced by the plaintiffs and the defendants, the trial court, in the light of the provision in Sec.58(c) of the Transfer of Property Act, found that Ex.B-1 is a mortgage deed by conditional sale, and as such, the suit is not barred by limitation. In the first appeal filed by the appellants, the lower appellate court confirmed the judgment and decree of the trial court, accepting the views of the trial court, apart from adding its own reasonings. To arrive at such a conclusion, the trial court, as also the lower appellate court, have given the following reasons:

.(i) The recitals of Ex.B-1 would reveal that it is only a mortgage by conditional sale fixing the period for repayment of the amount as three years. So the right of the vendee is a conditional right and if the repayment is not done within three years, only then the conditional sale would become absolute.

.(ii) The stamp paper for the execution of Ex.B-1 deed was purchased in the name of the plaintiffs. Normally stamp papers will be purchased for execution of sale deed, only in the name of the purchaser of the property. In this case, sellers have incurred the expenditure for the purchase of the stamp papers, which would imply that the amounts paid have to be repaid. This would show that the relationship is that of debtor and creditor, and not seller and purchaser,

(iii) If it is a sale deed, there will be a reference in the deed, to transfer the patta from the date of the sale. There is no such wordings in the deed.

.(iv) The case of the defendants is that after they were put in possession of the suit property, they spent Rs. 1,000 for effecting improvements therein. The 1st defendant herself would admit in her cross-examination, that she has no document in support of the said expenditure. So the aim of improvements cannot be accepted.

.(v) A reading of the recitals in Ex.B-1 would clearly show that on the date of execution of the said deed, no absolute right was given with reference to the enjoyment of the property. It has been clearly mentio