S. B. CHANDIRAMANI, J.

( 1 ) IT appears that on the 10th April, 1934, Debi Singh, one of the appellants, executed a deed described as a deed of conditional sale in favour of one Atbal Singh (predecessor of some of the respondents) in respect of a one-third share of mahal Chaudhri Harpal Singh in village bangarmau, District Unnao. Debi Singh applied under Section 4 of the Encumbered Estates Act showing the property covered thereby as his own. He claimed that the transaction evidenced by the sale-deed of 1934 was in fact a mortgage by conditional sale. Atbal Singh objected saying that it was an out and out sale subject to a condition of repurchase within a specified time. The Special Judge held that Section 58 (c) of the Transfer of Property Act when correctly construed does not indicate that every deed of sale containing a condition for repurchase operated only as a deed of mortgage and the true test still is the intention of the parties which may be gathered from the language of the deed and the surrounding circumstances at the time of execution. On the facts and circumstances of the case he held that the transaction was an out and out sale with the condition of repurchase and not

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