SATYADEO SHARMA Vs. RAMSARUP SHARMA

JUDGEMENT

(1.) The point involved in this appeal is very short though not simple. The nature of the transaction evidenced by a registered instrument of the 5th of January 1954, marked as Ext. A, is in dispute and the findings of the Courts below on that have been variant. The trial Court held that document to be a deed of sale with a condition of repurchase and the first appellate Court took the view that it was a mortgage by conditional sale. The result of this difference in opinion has been that the plaintiffs' suit was dismissed at the first instance but allowed on appeal. The defendants first party have brought this appeal to this Court as their resistance to the plaintiffs' suit for redemption of the mortgage failed.

(2.) The case of the plaintiffs was that the disputed land belonged to Chandrika Prasad Singh and others, defendants second party. Chandrika executed a deed of mortgage by conditional sale on the 5th of January 1954 in respect of the disputed land for Rs. 250/- in favour of the defendants first party in the name of defendant No. I,. Satyadeo Sharma. Defendants first party came' in possession thereafter as mortgagees. The mortgage money was payable within the month of Jeth 1364 Fasli by the defendants second party and thereupon the transaction evidenced by the mortgage bond was to come te an end and the property was to come back to the possession of the defendants second party. On the 1st of July 1954 the defendants second party executed a deed of sale in respect of the same property in the name of plaintiff No. 1 for Rs. 575/- out, of which Rs. 2507- was left in deposit with him to redeem the mortgage. The plaintiffs having thus purchased the right of redemption tendered the mortgage money of Rs. 250/-several times in the month of Jeth 1364 but their requests to defendants first party to accept the mortgage money and to return the property to them was not heeded. The money was deposited under Section 83 of the Transfer of Property Act in the Court of the Munsif at Barh; but in answer to the notice defendant No. 1 appeared in that Court and contended that the deed of the 5th, January 1954 was for a sale of the disputed property and not a mortgage by conditional sale. Thereupon the present suit was filed on the 16th November 1957 for a decree for a redemption of the mortgage and for mesne profits for the period between the service of notice under Section 83 of the Transfer of Property Act and the date on which possession of the disputed land will be delivered to the plaintiff.

(3.) Defendants I and 2, who are son and father, respectively contested the suit although a formal written statement was also filed on behalf of the minor defendants through a pleader guardian. The main defence was that the defendants first party were absolute owners of the property in dispute, they having purchased from the defendants second party by a registered instrument of the 5th of January 1954. The condition of repurchase was agreed to as an act of grace and was available only to defendants second party and not their transferees. They also challenged the transfer by the defendants second party in favour of the plaintiffs as alleged to have taken place on the 1st of July 1954 saying that the transaction was without consideration, and that the vendors (defendants second party) had no title left in them to transfer. Their assertion was that the document marked as Ext. A was not a mortgage by conditional sale as contended by the plaintiffs but a complete deed of absolute sale only with a condition of repurchase within a particular time.