ASSYA UMMA Vs. KOLAKKANI KUNHOYI

JUDGEMENT

(1.) In this appeal on behalf of the defendants, the learned Advocate General appearing for the appellant, contests the decision of both the subordinate courts that Ext. B1 in this case represents only a mortgage by conditional sale and not a sale with option to re-purchase,

(2.) The suit was for redemption of a transaction which styles itself as a kara theeradharam. Ext. B-1 dated 10-5-1936 for a sum of Rs. 400. The recitals in the document will be gone into a little more in detail in due course. The suit for redemption, on the ground, that this is only a mortgage by conditional sale was contested by the defendants on the ground that it was not a mortgage by conditional sale but it can only amount to a sale with an option to repurchase and as the period had already elapsed there was no further right in the plaintiff over the plaint properties.

(3.) Both the subordinate courts on a consideration of all tile decisions bearing on this matter and especially the decision of their Lordships of the Supreme Court reported in Chunchunjha v. Ebadat All, 1954-1 Mad LT 708: (AIR 1954 SC 345) and alter a consideration of the various clauses in the document have come to the conclusion that it is only a mortgage by a conditional sale and not a sale with an option to re-purchase that is evidenced by Ext. Bl. It is this conchision that has been concurrently arrived at by both the subordinate courts as against the appellant that is challenged by the learned Advocate General in this second appeal.