The legal principle established is that the nature of a transaction, application of estoppel, and the effect of previous decisions on the nature of a document are crucial in determining the rights of the parties.

Horwill, J.

1. The suit out of which this appeal arises was one for redemption. Both the Courts below have held that the plaintiff was entitled to redeem. Defendant 1 opposed the suit on many grounds; but those with which we are concerned are: (1) that the transaction entered into between the plaintiff and defendant 1 was not a mortgage but a sale; (2) that in any event the matter is governed so far as a large portion of the hypotheca was concerned by Section 41, T. P. Act, and otherwise by estoppel, the plaintiff having held out defendant 1 as the ostensible owner of the property and allowed various portions of the property to be alienated, and (3) that the plaintiff is precluded from setting up his claim because he failed to put them forward in O.S. No. 604. I need not repeat the arguments of the learned District Munsif and the learned District Judge in their judgments. Exhibit A, the document in question, has been set out in full. The document is headed "conditional sale" and not "sale," from which one would understand a document which was to operate as a sale only upon a certain contingency. We find that the body of the document confirms this interpretation. The plaintiff said in that document:

If we do not pay your amount by the due date, (viz., within five years), we agree to this document being treated as a sale deed.

It appears from this that the conveyance was not a sale at all, but was to operate as a sale only after a period of five years and then only if the plaintiff had not paid the amount advanced under the document. The recital, After the due date you and your heirs will have absolute powers in respect of the property. We and jour heirs will not have any rights would merely amount to a clog on the equity [of redemption.

2. There are at least three reasons why the appellant cannot succeed on his plea of estoppel. The nature of the estoppel-except with regard to the one alienation as to which there is no dispute in this Court - is that the alienees of various items of the hypotheea perused Ex. A and formed a bona fide belief that under it defendant 1 acquired an absolute title to land. In the first place, the alienees with which we are concerned did not enter the witness box; and so we do not know that they looked into Ex. A. In the second place, if they did so and misunderstood it, they must bear the consequences, the principle of caveat emptor applying. The learned advocate for the appellant relied on an observation of Srinivasa Ayyangar J. in Sethumadhava Iyer v. Bacha Bibi AIR1928Mad778 The case with which the learned Judge was dealing there was one in which there were two documents which had to be read together. One was an absolute conveyance by sale and the other was a contract to reconvey after a certain date if a certain price were paid. Certain purchasers of parts of the hypotheca in this mortgage by conditional sale saw the document whereby the land purported to be conveyed absolutely, but had no reason to suspect that there was another document in existence which, when read with the one they had seen, would show that the transaction was not an absolute sale but a mortgage by conditional sale. Srinivasa Ayyangar J. went further than was necessary, however, and seemed to be of opinion that even if they had seen the other document and read the two together, they were entitled to be protected by the provisions of Section 41, because it was possible for a layman reading those two documents to believe that there was an absolute conveyance. With respect, I find it difficult to agree with this obiter dictum. It is, however, unnecessary to expressly dissent from this dictum in view of the fact that there are two other reasons why Section 41, T. P. Act, will not apply. In this connexion, it was argued the burden lay upon the plaintiff under Section 41 T. P. Act, of showing that the transferees were not misled by Ex. A; but I do not find any reason to think that Section 41 throws such a burden on the true own