The judgment emphasizes the importance of proving the execution of an agreement to re-convey and the plaintiff's readiness and willingness to perform the contract under Section 16 of the Specific Relief Act.

1. The plaintiff, who got a decree before the trial Court, viz., District Munsif, Krishnagiri, by judgment and decree dated 12.07.2006 in O.S. No. 166 of 1995, which was set aside by the lower Appellate Court, viz., Principal Subordinate Judge, Krishnagiri, in A.S. No. 82 of 2006 vide judgment and decree dated 13.11.2008, has projected the instant Second Appeal.

2. According to the plaintiff, who claims to be the original owner of the suit lands, on 10.9.1993, he executed a sale deed in favour of the defendant conveying the suit lands for a consideration of Rs.11,000/- on her promise that she would execute an agreement deed to reconvey the suit lands on payment of the amount within a period of three years. It is stated that the plaintiff also paid a sum of Rs.10/- towards advance and the defendant agreed that on payment of the balance sale consideration of Rs.10,990/- on or before 10.9.1996, she shall execute the sale deed conveying the suit schedule land in his favour and accordingly, she executed a reconveyance agreement deed on 10.09.1993 itself. The main allegation of the plaintiff is that though he was ready to pay the balance sale consideration amount of Rs.10,990/- even in the month of March 1995 and despite his attempt on several occasions, the defendant was not prepared to execute the sale deed in his favour. The plaintiff also issued a notice dated 15.5.1995 calling upon the defendant to execute the sale deed and since the defendant did not turn up, he filed the suit for specific performance of the contract.

3. Resisting the suit, the defendant filed written statement denying all the allegations mentioned in the plaint. According to the defendant, she purchased the suit schedule property on 10.9.1993 and registered the sale deed in her name and she was in possession of the suit property from the date of sale deed. Denying the re-conveyance agreement alleged to have been entered into between her and the plaintiff, she prayed for dismissal of the suit.

4. Before the trial Court, the plaintiff examined himself as P.W.1 besides examining one Duraisamy as P.W.2 and marked Exs.A.1 to A.3. To nullify the case of the plaintiff, the defendant examined herself as D.W.1 and examined one more witness as D.W.2 and marked Exs.B.1 to B.9.

5. The trial Court, after adduction of evidence by both the parties, accepting the plea of the plaintiff that the defendant is liable to re-convey the suit property, came to the conclusion that the plaintiff is entitled to specific performance of the agreement of sale and accordingly, decreed the suit. On appeal by the defendant, the Lower Appellate Court reversed the decree on the finding that the execution of document has not been proved and allowed the appeal. Feeling aggrieved, the plaintiff has come up with the present Appeal.

6. Heard Mr. P. Mani, learned counsel appearing for the appellant / plaintiff and Mr. V. Nicholas, learned counsel for the respondent / defendant and perused the records.

7. The question involved in the instant appeal is whether Ex.A.1 is an agreement to re-convey or mortgage by conditional sale.

8. From the facts narrated above, it is clear that it is not a mortgage by conditional sale as neither Ex. A.1 nor Ex. B.7 contained such a clause. When such a condition is not embodied in the document, the transaction shall not be deemed to be a mortgage. The definition of mortgage by a conditional sale postulates the creation by transfer of a relation of mortgagor and mortgagee the price being changed on the property conveyed. However, in a sale with an agreement to re-convey, there is no relationship of debtor and creditor. Nor is the price changed upon the property conveyed. But the sale is subject to an obligation to re-transfer the property within the period specified. The relationship of debtor and creditor is the only distinction and the transfer being a security for the debt.

9. In a case of outright sale, a condition of re-conveyance is embodied. But in the present