Judgement

RAMASWAMI, J. : This appeal is brought, by special leave, on behalf of the plaintiff from the judgment of the High Court of Madras, dated August 19, 1960 in Second Appeal No 871 of 1958.

2. The disputed property consisted of 16 acres and 27 cents of land in Sokkanur village of Coimbatore district of which half share belonged to Palani Moopan and the other half to his daughter Palani Mooppachi. Palani Moopan executed the document. Ex,. B-1 with regard to his share of the property in favour of the 1st defendant for a consideration of Rs. 4,000 on May 28, 1946. Out of the consideration, a sum of Rs. 2,000 was reserved with the vendee to pay off an earlier mortgage and the balance of Rs. 2,000 was paid to the vendor in cash. The first defendant discharged the earlier mortgage in accordance with the directions in Ex. B-1. The document, B-1 was in the form of a sale deed but it contained a stipulation that the 1st defendant should reconvey the property to Palani Moopan on his repaying the amount of Rs. 4,000 after 5 years and before the end of the 7th year. After the death of Palani Moopan his sons executed an assignment deed in favour of the plaintiff, Ex. A-1 dated August 10, 1950 for a sum of Rs. 1,600. On the basis of Ex. A-1 the plaintiff has brought the present suit for redemption of the disputed property. The case of the plaintiff was that Ex. B-1 must be deemed in law to be a mortgage by conditional sale and that he was entitled to redeem as the assignee of the equity of redemption. The plaintiff further claimed that being an agriculturist, he was entitled to the benefits of Madras Act IV of 1938 as amended. The plaintiff pleaded alternatively that if Ex. B-1 was held to be an outright sale with a condition to repurchase, the first defendant was bound to reconvey the property to him on payment of the amount of Rs. 4,000. The plaintiff alleged that he tendered the amount to the first defendant several times but the latter refused to accept the same, The suit was contested by the 1st defendant who denied that Ex. B-1 was a mortgage by conditional sale, it was alleged that Ex. B-1 was an outright sale with a conenant to repurchase and as no tender was made by the plaintiff within the time stipulated in the document, the suit was barred by time.

3. Upon these rival contentions the trial Court held that Ex. B-1 was a mortgage by conditional sale and accordingly granted a preliminary decree to the plaintiff for redemption under O. 34 R . 7 of the Civil Procedure Code. The first defendant took the matter in appeal to the Subordinate Judge of Coimbatore but the appeal was dismissed. The 1st defendant preferred second appeal in the Madras High Court which set aside the decrees of the lower Courts and ordered that the suit should be dismissed, holding that the transaction was an outright sale and not a mortgage by conditional sale. As regards the alternative plea based on the covenant for reconveyance, the High Court considered that there was no proof that the plaintiff had tendered the amount within the period stipulated in the document.

4. The question of law involved in this appeal is whether the document, Ex. B-1 executed by Palani Moopan in favour of the 1st defendant is in its true effect, a mortgage by conditional sale or a sale with a condition for retransfer.

5. By S. 58 (c) of the transfer of Property Act a mortgage by conditional sale is defined as follows:

" 58. (c) Where the mortgagor ostensibly sells the mortgaged property -

On condition that on default of payment of the mortgaged - money on a certain date the sale shall become absolute, or

on condition that on such payment being made the sale shall become void or

on condition that on such payment being made the buyer shall transfer the property to the seller,

the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the