RAKHAL CHANDRA MOHAPATRA Vs. DAYANIDHI PATRA AND ORS.

JUDGEMENT

(1.) THE only question in this appeal filed by the unsuccessful Defendant in the Courts below is whether the suit document is a mortgage by conditional sale or a sale with a condition of re -purchase.

(2.) THE facts that gave rise to this appeal may be briefly stated On June 30, 1915 the grand -father of the Plaintiffs executed a document which was registered on July 1, 1915, said to be by way of mortgage by conditional sale for a consideration of Rs. 100/ - and gave possession of the suit lands to the father of Defendant No. 1. The Plaintiffs filed the suit for redemption on November 19, 1959. The defence is that the suit document ext. 1 is not a mortgage hut an out -and -out sale; that the option of repurchase has not been exercised, within 3 years and that the sale was complete and the right of re -purchase was extinguished. Both the Courts below found that the suit document was a mortgage and accordingly decreed the suit in favour of the Plaintiffs. Hence this Second Appeal. The language of ext. 1 as quoted in the judgment of the learned lower appellate Court is as follows:

(3.) THE question is Is it a sale or a mortgage? In a recent decision in Bhoju Mandal and Ors. v. Debnath Bhagat and Ors. : A.I.R. 1963 S.C. 1906 their Lordships of the Supreme Court had laid done the tests thus: