IMPORTANT POINTS
(1) Mortgage once created remains a mortgage unless it is foreclosed or redeemed.
(2) High Court has no jurisdiction in second appeal to interfere with finding of fact given by first appellate court based upon appreciation of relevant evidence.

R. Hemalatha, J.—The unsuccessful defendant in O.S.No.59 of 1998 on the file of the Subordinate Judge, Attur and the appellant in A.S.No.108 of 2001 on the file of the II Additional Judge, Salem is the appellant herein.

2. The respondents/plaintiffs filed a suit in O.S.No.59 of 1998 before the Sub Court, Attur praying for a specific performance of contract dated 25.01.1995 (Ex.B1). Briefly stated the case of the respondents/plaintiffs in O.S.No.59 of 1998 is as follows. The first plaintiff for himself and on behalf of the 2nd plaintiff mortgaged the suit property with the defendant/appellant and a mortgage by conditional sale for a sum of Rs.35,000/- was executed vide a registered deed dated 25.01.1995 (Ex.B1). As per the recitals of the said deed, the appellant/defendant agreed to transfer back the suit property within 5 years from the date of the deed (Ex.B1). The plaintiffs though were always ready and willing to perform their part of contract, the appellant/defendant evaded performance of their part of contract. Therefore, the plaintiff issued a telegram on 23.01.1998 showing his readiness and willingness to purchase the property as per the conditional sale deed (Ex.B1). The defendant though received the said telegram, did not come forward to execute the sale deed. Hence the suit for specific performance.

3. The appellant/defendant filed a written statement contending that the respondents/plaintiffs were not ready and wiling to perform their part of the contract though in the ‘ conditional sale deed ‘ it is clearly indicated that time for reconveyance of the property is 5 years. Furthermore, the transaction is not a mortgage by conditional sale as alleged by the respondents/plaintiffs and on the contrary, it is only an outright sale. There is no relationship of debtor-creditor between the respondents/plaintiffs and the appellant/defendant. In fact, the property was sold for a consideration of Rs.35,000/-, which was the market value at that point of time and the possession of the suit property was also handed over to the appellant/defendant. He therefore, prayed for the dismissal of the suit.

4. On the basis of the above pleadings, the following issues were framed by the trial court.

1. Whether it is true that the plaintiffs executed a conditional sale, after receiving Rs.35,000/- from the defendants on 25.01.1993?

2. Whether the plaintiffs are entitled to the relief of specific performance?

3. To what relief, the plaintiffs are entitled?

The said issue No.1 was recast subsequently as

1. Whether it is true that the plaintiffs mortgaged the suit property by executing a conditional sale, after receiving a sum of Rs.35,000/- from the defendants on 25.01.1993?

5. In the trial court, the first plaintiff examined himself and marked Ex.A1 to Ex.A6 and the defendant examined himself and marked Ex.B1.

6. After full contest, the learned Subordinate Judge, Attur decreed the suit as prayed for by the plaintiffs by holding that the transaction between the respondents/plaintiffs and the appellant/defendant is a mortgage by conditional sale. The defendant filed an appeal in A.S.No.108 of 2001 before the II Additional District Judge, Salem. The II Additional District Judge after analysing the evidence on record, upheld the findings of the learned Subordinate Judge, Attur and dismissed the appeal filed by the appellant/defendant.

7. The present appeal is filed by the defendant.

8. In this second appeal, the following substantial questions of law were raised.

1. Whether the courts below are right in holding that the deed of conditional sale (Ex.A1 and Ex.B1) is a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act?

2. Whether the courts below erred in holding that the suit is not barred by limitation since it is admittedly filed after the expiry of the period of 5 years mentioned in the deed (Ex.A1)?

3. Whether the courts below are right in accepting the oral evidence of the plaintiff alone as a