The distinction between a mortgage by conditional sale and an outright sale with a right of repurchase, and the factors to be considered in determining the nature of the transaction.

( 1 ) THIS is an appeal and cross-objection against the judgment and decree dated 15th April 1964 passed by the Civil Judge, Ballia decreeing the suit for redemption of mortgage dated 9th september 1947 on payment of Rupees 28,200/ -.

( 2 ) THE facts giving rise to this appeal are that plaintiff Ganesh Ram used to carry, on business at ballia in the name of Durga Ram Ganesh Ram. Defendants I and II set belong to the same family and their business used to be carried on in the name of Devdutt Pandey Kapildeo Pandey. Defendants Illsets business used to be carried on in the name of Lachchu Bhagat Sarju Prasad. The plaintiff used to look after the businesses of defendants I and II set and defendants III set. The plaintiff was the owner of the disputed property situated in the Municipal limits of Ballia. The total area is 46 acres. There is a built portion over a considerable part.

( 3 ) ON 9th September, 1947 plaintiff executed deed Ex. A-1 whereby he transferred the disputed property in favour of defendant No. 1 Mst. Daulata Kuer, the ancestor of defendants II set for a sum of Rs. 45,000/ -. Out of the sum of Rupees 45,000/- a sum of Rs. 28,200/- was paid in cash before the Sub-Registrar and the balance of Rs. 16,800/- was left with the defendants II set for payment to the Imperial Bank. It was provided that in case the plaintiff paid a sum of Rs. 45,500/- by 30th June, 1950, Mst. Daulata Kuer would re-convey the property to him and in case of her failure to do so, the plaintiff could obtain a re-conveyance through Court.

( 4 ) ON 4-1-63 plaintiff filed the suit in forma pauperis for redemption of the mortgage and possession over the disputed property without payment of any amount to the defendants. It was said that the sum of Rs. 16,800/- was due on defendants II set, that the sum of Rs. 15,000/-was due on defendants III set and that on request of the defendants he included the sum also in the deed executed by him. The plaintiff claimed that a sum of Rupees 1200/- was due on defendants i and II set on account of arrears of salary and a sum of Rs. 12,000/- was otherwise due on them. He, therefore, claimed a redemption of the mortgage without any payment whatsoever.

( 5 ) THE suit was contested by defendants NOS. 3 and 6 to 9 (II set) with, the allegations that the document executed by the plaintiff and was an out and out sale with a right of repurchase and was not a mortgage by conditional sale, that the plaintiff used to look after the business of the defendants II set and III set and he had incurred the liability to the extent of Rupees 16,800/- and rs. 15,000/- that he obtained the lean from the Imperial Bank in the names of these Firms and misappropriated the money, that it was for this reason that he accepted the liability for these amounts and executed the document for Rs. 45,000/-, that he did not obtain any re-conveyance within the period fixed, that he is not entitled to redemption of the mortgage without the payment of Rs. 45,000/- and that the suit is frivolous and vexatious and defendants II set are entitled to special costs.

( 6 ) THE learned Civil Judge accepted the plaintiffs version that the document dated 9th september, 1947 was a mortgage by conditional sale and not an out and out sale with a condition for repurchase. He further accepted the plaintiffs version that the sum of Rs. 16,800/- was in fact due against defendants II set arid the plaintiff was not liable to pay the same. He held that the plaintiff was liable to pay Rs. 28,200/ -. He accordingly decreed the suit for redemption of the mortgage dated 9th September, 1947 and directed the plaintiff to deposit, Rupees 28,200/- in, court within six months. On this being done, he directed the defendants I and II set to deliver possession of the mortgaged property to the plaintiff, the plaintiff had been permitted to sue as pauper and it was directed that the court-fees would be realised from the defendants I and II set. The plaintiff was also aw