DEBNATH BHAGAT Vs. BHOJU MANDAL

JUDGEMENT

(1.) The only question which arises in this appeal is whether the document which is the subject-matter of the suit out of which the present appeal arises is a mortgage by conditional sale or a sale out and out with a condition of repurchase.

(2.) The plaintiffs-respondents executed a registered sudhbarna bond on the 1st of March 1923, in favour of the defendants-appellants for a sum of Rs. 1600 giving 13.17 acres of land in sudbharna. It appears that the defendants could not get possession over the sudbharna land as a result of which they demanded the payment of the mortgage money. On the 23rd of February 1924, therefore, the plaintiffs executed the document in question in favour of the defendants transferring 12.6 acres of land out of the above 13.17 acres of sudbharna land for a sum of Rs. 2800. It is contended on behalf of the plaintiffs that this document of transfer is a mortgage by conditional sale, and they have, therefore, instituted a suit for redemption. On the other hand, the case of the defendants is that it was a sale out and out with a condition of repurchase and as the time fixed for repurchase had expired, the plaintiffs were not entitled to any relief. Both the courts below held that the document in question was a mortgage by conditional sale and they decreed the suit for redemption. Being, thus aggrieved, the defendants have presented this appeal in this Court.

(3.) A mortgage by conditional sale has been defined in Section 58 (c) of the Transfer of Property Act in these terms :