KANDAKKA SOOPI Vs. JOSEPH

JUDGEMENT

(1.) THE respondent 6th defendant, assigned a property to the appellant's predecessor-in interest by Ext. B1 dated the 31st March, 1957, and on the same day he executed a marupt Ext. A-1, accepting a lease of the property. THE appellant sued the respondent and others on the basis of Ext. A-1 for arrears of rent. THE respondent contended, that by virtue of S. 23 of Act XXXI of 1958, Ext. B1 must be deemed to be a mortgage to which the provisions of s. 11 of the Act are applicable. This contention prevailed with the two courts below.

(2.) IN second appeal it was contended for the appellant, that S. 23 had no application. That Section reads: "where under a sale deed in respect of immovable property there is provision to repurchase the property within any stipulated period on payment of any specified amount and such period has not expired at the commencement of this Act, then, notwithstanding any law or contract to the contrary, the transaction shall be deemed to be a mortgage and the provisions of S. 11 shall apply thereto. The consideration for the sale shall be deemed to be the mortgage amount. " The basis of the contention was the provision in Ext. B-1, which reads: S. 23 was contended to be inapplicable for two reasons, first, that no period is stipulated in Ext. B-1 within which the payment is to be made as contemplated by the Section, the stipulation being, that the payment may be made at any time after the expiry of twelve years and second, that while the expression "such period has not expired" postulates the condition that the right of repurchase was in force or was current on the date of the act, under the terms of Ext. B-1 that right would accrue only in future & not earlier than the 31st March, 1959. IN my view, the decision of the case must turn on the meaning of the term "within any stipulated period" the word "within" pointing to an outer limit of a specified period, the fixation of an inner limit, if I may say so, by itself, being insufficient. The term "within" according to the dictionary, means "not beyond. " I look in vain for such a limit in the relevant provision in Ext. B-1 quoted above. On the contrary, there is no such outer limit whatever, the right being exercisable at any time after the expiry of twelve years.