SAYYAD AHMED ALI Vs. BHAGEERATHI AMMAL

JUDGEMENT

(1.) This second appeal raises the question whether the document dated 6-121113, Ex. A, in the case is a mortgage by conditional sale or an outright sale with an option to repurchase.

(2.) The circumstances under which this document came to be executed are not in dispute. The defendant in the suit O. S. No. 577 of 1950 on the file of the Principal District Munsif's Court, Nager-coil, obtained a decree against the plaintiff in O. S. No. 820 of 1112 on the file of the Additional District Munsif, Nagercoil, for recovery of a sum of money. The plaintiff in this suit made an application before the Debt Conciliation Board in C. A. 138 of 1113 for an amicable settlement of all his debts under the provisions of an enactment prevailing in Travancore. It appears, though there is no specific evidence on the point, that the Debt Conciliation (Board brought about a settlement of the debt and in pursuance of an arrangement between the plaintiff and the defendant in consonance with the decision of the Board the plaintiff executed in favour of the defendant, Ex. A, for a consideration of Rs. 1025. The terms of this document will be referred to later, The plaintiff sought to recover possession of the properties comprised in Ex. A on the ground that the transaction embodied in Ex. A was really a mortgage, though ostensibly it look the form of a sale-deed and that he is entitled to redeem that mortgage on payment of the sum of Rs. 1025. The defendant resisted the suit and contended that the apparent tenor of the document reflected the true intention of the parties to the transaction, that the transaction was one of outright sale, that the time fixed for reconveyance had expired, that the time was of the essence of the contract and that the suit was not maintainable.

(3.) At the trial of tho suit before the learned District Munsif on Nagarcoil two main issues were raised, the first relating to the nature of the transaction under Ex. A, and the other raising the question whether the suit is barred by res judicata in view of an earlier proceeding in O. P. No. 19 of 1118 on the file of the District Court, Nagarcoil. The trial Court upheld the defendant's contention and non-suited the plaintiff. The plaintiff thereupon preferred an appeal, A. S. No. 525 of 1952, on the file of the District Court, Nagercoil. The learned District Judge confirmed the judgment and decree of the trial Court. This second appeal has therefore been preferred by the aggrieved plaintiff.