NATARAJAN CHETTIAR Vs. VENKATACHALAM

JUDGEMENT

(1.) THE first appellant, on his behalf and on behalf of his deceased wife Kaliammal and his children, the appellants 2 to 6, executed an usufructuary mortgage on 7.9.1964 in favour of one Rakkia Gounder. The respondents 1 to 5 and 7 to 9 are the children and the sixth respondent is the wife of the said Rakkiya Gounder. To redeem the said mortgage, the appellants filed O.P.No.l of 1981 on the file of the district Munsif Court, Tiruppur, stating that in view of the provisions of the Act 40 of 1979 the mortgage had become discharged and so the respondents have to deliver possession of the said mortgaged property to the appellants. The said petition was resisted by the respondents. The lower Court rejected the petition holding that the appellants are not entitled to the benefit of the said Act and that the said mortgage dated 7.9.1964 marked as Ex.A -1 is a sale deed and not mortgage deed as claimed by the appellants. The lower appellate court on Appeal filed by the Appellants herein in C.M.A.No.l of 1987, on the file of the Sub -Court, Tiruppur, concurred with the finding of the lower court and dismissed the appeal. Aggrieved against the same, the appellants have filed the above appeal.

(2.) THE only question that arises for consideration in this appeal is whether Ex.A -1 is a mortgage by conditional sale or a sale outright with a condition.

(3.) IN the said document it is directed to pay the mortgagee a total sum of Rs. 2,823 towards the debts, the details of which are given in the said document, and the balance of Rs. 2,172 said to have been received in cash. It is also specifically stated that for the said amount no interest would be changed.