KRISHNAN Vs. MUHAMMED

JUDGEMENT

(1.) The only substantial question in the appeal is whether Ext. A1 is a mortgage by conditional sale or a sale with a condition to repurchase. Ext. A1 document was executed on 21/03/1972. The nomenclature of the document is 'jenm Avadhi theeradaram'. Ext. A1 shows that the property originally belonged to deceased Neelandan as per registered assignment deed 1570/1968 (Ext. B1). On his death it devolved on his five children, executant Mundan, his sisters Kottikutti, Karichi and brothers Peravan and Choolan. Mundan had 1/5 undivided share in the property. The total extent of the property is 31 cents. It is in RS No. 329/2 of Kannamangalam Village. Ext. A1 recital shows that after receiving a consideration of Rs.125/-, Mundan transferred his rights in the property in favour of Muhammed, the respondent / plaintiff. It was provided that if Mundan pays Rs.125/-, the consideration received under the sale deed, within a period of three years after the expiry of one year from the date of execution of the sale deed, respondent shall assign the property to Mundan or his legal heirs without any objection. It also provides that from the date of execution of Ext. A1, respondent is the absolute owner of the property including the right to alienate the property, 4th appellant is the widow and appellants 1 to 3 are the children of Mundan. Appellants instituted the suit for redemption and recovery of possession of the property contending that Ext. A1 is not a sale deed with a clause for repurchase but a mortgage by conditional sale and so they are entitled to a decree for redemption of the mortgage. Respondent the defendant in the suit resisted the suit contending that Ext. A1 is not a mortgage by conditional sale but an outright sale with a repurchase clause and under Ext. A1 if the assignor pays the consideration of Rs.125/- (Rupees One hundred and twenty five only) within a period of three years, respondent is to execute a sale deed in his favour and as it is not a mortgage suit for redemption is not sustainable. It was contended that under Ext. A1 only 1/5 share in the property was sold and there is no debtor creditor relationship and it is not a mortgage at all and suit is to be dismissed.

(2.) Learned Munsiff on the evidence of PWs 1 and 2, DW 1 and Exts. A1 to A3, B1 to B9 upholding the case of appellants that it is a mortgage by conditional sale and not a sale with a repurchase clause granted a decree for redemption and recovery of possession. It was challenged before Sub Court, Tirur in AS 46/1989. Learned Sub Judge on reappreciation of evidence found that Ext. A1 does not create a creditor debtor relationship and the fact that consideration for Ext. A1 was fixed at the intervention of mediators established that it was an outright sale and not a mortgage and set aside the findings of learned Munsiff and dismissed the suit. It is challenged in the second appeal.

(3.) Second appeal was admitted formulating the following substantial questions of law.