PANCHACHARA MUDALIAR Vs. KANDASWAMI ACHARI

JUDGEMENT

(1.) THE defendants 1 to 3 who have lost in both the courts below are the appellants in this appeal.

(2.) THE plaintiff filed the suit in O.S.No.490/79 on the file of the District Munsif of Tirukoilur for redemption of suit properties and for determination of mesne profits and for costs. It is the case of the plaintiff that on 20 -12 -1972, the plaintiff executed a conditional sale in favour of Unnamalai Ammal, the mother of the defendants 1 to 3 for a sum of Rs.7,500/ - and according to the said document he should re -purchase the property within 6 years, after paying the amount and also that failing which the sale will be absolute in favour of Unnamalai Ammal, It is the case of the plaintiff that at the relevant time, the value of the property was more than Rs.10,000/ - and that the patta stood in the name of the plaintiff and that the intention of the parties was to create only a mortgage by conditional sale and not a sale with a clause for re -purchase. It is the further case of the plaintiff that he is an agriculturist as per Act 4 of 1938 as amended by Act 8 of 1973, and that the suit mortgage was executed before 15 -7 -1978 and hence as per Section 8 of the Act 40 of 1979, the plaintiff is entitled for the scaling down amount and that he is liable to pay only Rs.2750/ -. In spite of the repeated demands, the defendants did not agree for the redemption of the property and hence he filed the present suit depositing a sum of Rs.2,750/ -.

(3.) THE trial court on the construction of the document which is marked as Ex.B1 (Copy of the same is marked as Ex.A1) held that it is only a mortgage by conditional sale and not a sale with a clause for re -purchase. On the second issue, the trial court held that the plaintiff is entitled for scaling down amount and redemption of amount, and consequently passed preliminary decree for redemption. Aggrieved by the said judgment of the trial court, the defendants 1 to 3 filed an appeal in A.S.221/81 on the file of Sub -Court, Cuddalore. The Sub -Court also concurred after elaborately discussing the evidence available on record and dismissed the appeal. Aggrieved by the judgment of the lower appellate court, defendants 1 to 3 have preferred the above appeal.