Exemption of time for exercise of option due to closure of the Court.

The main question to be decided in this Second Appeal filed by the first defendant from the judgment and decree of the learned Subordinate Judge of Coimbatore, in A.S. No. I of 1958 is whether the conveyance under Exhibit B-1, dated 28tn May, 1946, is an out and out sale with a covenant for re-purchase or a mortgage by conditional sale. The trial Court with which the lower appellate Court agreed held that Exhibit B-1 was a mortgage by conditional sale and granted a decree for redemption. The aggrieved first defendant has preferred this Second Appeal.

The property in question originally belonged to one Palani Moopan. He executed Exhibit B-1 in favour of the first defendant for a consideration of Rs. 4,000. The document was styled as a sale-deed and purported to convey the property absolutely to the first defendant by way of sale. Out of the consideration, a sum of Rs. 2,000 was reserved with the vendee to pay off an earlier mortgage on the suit property and certain other properties. The balance of Rs. 2,000 was paid to the vendor in cash. The first defendant discharged the earlier mortgage in accordance with the directions in the sale-deed. The sale-deed recited that the property having been conveyed to the vendee absolutely, the vendee should thereafter enjoy the property with all rights of ownership. The Tamil recital was:

After the schedule to the sale-deed appeared a covenant that if after five years and before the expiry of seven years from the date of the sale-deed, the vendor paid to the vendee the sum of Rs. 4,000, the vendee should reconvey the property to the vendor. The Tamil recital ran thus:

After the death of Palani Moopan his sons executed in favour of the plaintiffs Exhibit A-1, dated 10th August, 1950, for a consideration of Rs. 1,500. The document is described as a deed of assignment of the right to re-purchase

Exhibit A-1 refers to the condition for re-purchase in Exhibit B-1 and states that as the executants namely the sons of Palani Moopan were unable to find the necessary funds to get a reconveyance from the first defendant, they were conveying to the plaintiff their right to re-purchase the property from the first defendant. Basing his right under Exhibit A-1, the plaintiff instituted the suit out of which the Second Appeal arises for a decree directing the first defendant to reconvey to him the suit property for Rs. 4,000 or for such other sum as might be determined by the Court. The plaintiff claimed that Exhibit B-1 must be deemed in law to be a mortgage by conditional sale and that he was entitled to redeem as the assignee of the equity of redemption. On that basis, the plaintiff also claimed that himself and his pre-decessors-in-title being agriculturists, they were entitled to the benefits of Act IV of 1938 as amended from time to time. The plaintiff pleaded alternatively that if Exhibit B-1 was held to be an outright sale with a condition to repurchase, the first defendant was bound to reconvey the property to him on payment of a sum of Rs. 4,000. The plaintiff averred that he tendered the amount to the first defendant several times but the first defendant refused to accept the same. The first defendant of course denied that Exhibit B-1 was a mortgage by conditional sale and maintained that it was an out and out sale with a covenant for re-purchase and that inasmuch as no offer was made by the plaintiff or his assignors within the time stipulated in the document, the suit to enforce a reconveyance was barred by time.

The trial Court reached the conclusion that Exhibit B-1 was only a mortgage by conditional sale relying on the folllowing circumstances, namely: (1) There was a stipulation that on payment the vendee should re-transfer the property to the vendor absolutely ; (2) the covenant as to re-purchase is embodied in the same document; (3) the patta had not been transferred to the first defendant; (4) the amount agreed upon as the price for re-purchase was the same as the consideration fo