BHOJU MANDALE Vs. DEBNATH BHAGAT

JUDGEMENT

(1.) The only question in this appeal is whether the suit document is a Mortgage by conditional sale or a sale with a condition repurchase.

(2.) The facts that gave rise to this appeal may be briefly stated:On February 2, 1924, the appellants 1 and 2, their father late Matooki Mandal and their uncle late Lila Mandal executed a deed purporting to convey a property of the extent of 12.6 acres in favour of respondents 1 and 2 for a consideration of Rs.2,800/- and put them in possession of the same. In 1950 the appellants instituted title suit No. 73 of 1950 in the Court of the Munsif, 1st Court, Bhagalpur Bihar, for redemption on the ground that the said document was a mortgage by a conditional sale. The contesting defendants i.e. respondents 1 and 2 pleaded that the said document was not a mortgage but an out and out sale and therefore the suit for redemption was not maintainable. The Munsif and on appeal the Subordinate Judge, Bhagalpur, accepted the contention of the appellant and decreed the suit but on second appeal the High Court held that the document was a sale and on that finding the appeal was allowed and the suit was dismissed with costs throughout. The appellants by special leave preferred the present appeal against the decree and judgment of the High Court.

(3.) The only question in this appeal is whether the said document is a mortgage or sale. As the question turns upon the construction of the provisions of the sale deed, it would be convenient to read the document as the High Court did omitting the unnecessary words:-