THOMAS Vs. JOHN

JUDGEMENT

(1.) THE second appeal is by the first defendant in a suit for recovery of possession of immovable property with mesne profits.The respondent brought the suit on the allegation that the appellant sold the suit property to him under Ex.P -1 on 19 th June 1957 and that the respondent,allowed the appellant to be in possession of the property as the former was away in Malaya.The respondent alle­ged further that Ex.P -2,an agreement of the same date between the parties for retransfer of the property within two years,was not performed by the appellant,as he did not pay the amount and take a re -assignment within the stipulated time.The appellant contended that Exx.P -1 and P -2 constituted one transaction and that the transac­tion was only a mortgage by conditional sale.He also claimed that he was entitled to benefits of section 9 of Kerala Act XXXI of 1958 and was entitled to pay the mortgage debt in instalments as contemplated by the Act.The trial court held that Exx.P -1 and P -2 were thought of,prepared,executed and presented simultaneously and were registered by consecutive numbers.

(2.) STILL , it held that the transaction was not a mortgage, but an out and out s ale. The lower appellate court, on the other hand, held that in the circumstances surrounding the case, the transaction was only one of debt. However, it held that the provision of Act XXXI of 1958 that applied to the case was sub -section (3) of section 9, and not sub -section (1) of that section. In that view, the lower appellate court confirmed the decree of the trial court. It held that since the appellant did not comply with the pro­vision of sub -section (3 ), namely, since he did not deposit half the mortgage money under sub -section (2) of section 11, he was not entitled to benefits of Act XXXI of 1958. The first defendant, as already stated, has come up in second appeal; and the plaintiff has filed a memorandum of objection against the finding of the lower appellate court that the transaction was a debt and not a sale.

(3.) THE respondent contended that Ex.P -1 was executed at the first instance;and that Ex.P -2 came to be execu­ted subsequently,as the appellant requested the respon­dent to allow him to continue in possession.The two documents bear consecutive registration numbers;and the registration number in Ex.P -2 appears to have been inser­ted in a different ink in a blank space left when the docu­ment was prepared.Both the documents appear to have been presented before the Sub -Registrar between 11 a.m.and 12 noon on 19 th June 1957,though the respondents evidence on this point is that Ex.P -2 was presented for registration in the afternoon.The stamp papers for both were also purchased on the previous day.Therefore,Exx.P -1 and P -2 were undoubtedly simultaneous transactions.