UNICHIRAKUTTY Vs. KUTTIMALU

JUDGEMENT

(1.) THE Civil Revision Petition arises out of an application filed by the revision petitioner under S. 9 (3) of the Kerala agriculturists Debt Relief Act, 31 of 1958 on the ground that the transaction evidenced by Ext. B-1 a kanom assignment deed dated 131957 executed by the revision petitioner in favour of the predecessor-in-interest of the respondents is a debt payable under Act 31 of 1958. THE contention of the revision petitioner is that Ext. B-1 is only a mortgage by conditional sale. According to the respondents, Ext. Al is a transaction of sale with a condition of repurchase. It has to be mentioned at this stage that there was no attempt by the revision petitioner to take advantage of S. 23 of Act 31 of 1958.

(2.) BOTH the courts below took the view on an interpretation of Ext. B-1 that it is not a mortgage by conditional sale but a sale with a condition to retransfer the property. The revision petition is directed against the concurrent decisions of the courts below. Apart from pleading that Ext. B-1 is a mortgage by conditional sale it was not contended before me that even if Ext. B-1 is not a mortgage by conditional sale it evidences a transaction of debt between the parties.

(3.) IT is seen from an interpretation of Ext. B-1 that an absolute interest is created in the executee on the date of the document and the vesting of absolute interest is not postponed to take effect on default to pay the amount. But it was argued in view of the clause: in Ext. B-1 there is no vesting of the ownership in the transferee from the date of the document. I do not think that the clause referred to is susceptible of the interpretation contended for by the learned counsel. Thus the three reasons in support of the contention that Ext. B-1 is only a mortgage by conditional sale cannot stand.