PALANI GOUNDAR Vs. THIRUMALAI GOUNDAR

JUDGEMENT

(1.) Plaintiffs 2 to 5 in O. S. No. 598 of 1965 in the court of the Principal District Munsif of Erode are the appellants. The suit was one for redemption of Ex. B-2 'mortgage' and for recovery of possession. The case of the plaintiffs was that Ex. B.2 was a mortgage by conditional sale and that, therefore, they were entitled to redeem the mortgage. The case of the defendants was that Ex. B 2 constituted an absolute sale accompanied by an agreement for repurchase and, therefore, the suit for redemption would not lie.

(2.) The trial Court decreed the suit and the matter was taken on appeal by the defendants. The lower appellate court reversed the judgment of the trial court and the matter came up to this court in S. A. No. 667 of 1969. (Karuppanna Goundar and 3 others v. Thirumalai Gounder and 3 others). By judgment and decree dated 7th Oct. 1971, Ismail, J. (as he then was) allowed the second appeal and remanded the first appeal for fresh disposal. The reason for the remand order was that one of the tests to find out whether a particular transaction was an absolute sale or a mortgage by conditional sale was the adequacy of the price and with reference to that there was some mistake in the judgment of the lower appellate court. By his judgment dated 8th Mar. 1972, the learned Principal Subordinate Judge, Erode, stated, that there was no oral evidence and that in the absence of such evidence, he expressed his difficulties in arriving at the value of the property for the purpose of' considering whether the consideration mentioned in Ex. B. 2 was adequate or inadequate. He, however, recorded a definite finding that Ex. B. 2 was not a mortgage by conditional sale and only an out and out sale and that the plaintiffs were not entitled to maintain the suit for redemption. The suit for redemption was thus dismissed, and the matter was again challenged in the second appeal to this court. Again the matter came up before Ismail, J. (as he then was) and after considering the rival contentions, the learned Judge pointed out that once the condition for resale was incorporated in the same document, the document was covered by S. 58 (c) of the Transfer of Property Act, and that the transaction would be only a mortgage unless the person who asserts that it was not a mortgage was able to prove, either from the language contained in the document or from the attendant circumstances whether the transaction was intended to be an outright sale. By throwing the burden wrongly on the plaintiffs, the learned Subordinate Judge, it was held, committed an error. The view of the learned Subordinate Judge appeared to be based on the conclusion that the plaintiffs had failed to prove that.Ex.B.2 was a mortgage by conditional sale. Such conclusion was found to be erroneous in view of the judgment of the Supreme Court in Chunchun Jha v. Ebadat Ali. The learned Judge (Ismail, J.) gave an opportunity to the counsel to draw his attention to any term in Ex. B. 2, which would lead to the inference that the transaction was only an outright sale. As the counsel was not able to drew his attention to any express words which would preclude the transaction being a mortgage by conditional sale, the learned Judge pointed out in paragraph 4 of the judgment, which is reported in Karuppanna Gounder v. Thirunialai Gounder,

(3.) The matter was again disposed of by the learned Subordinate Judge by his judgment dated 9-11-1976 and is now again in second appeal at the instance of the unsuccessful plaintiffs 2 to 5.