C GANESHA MUDALIAR Vs. VGNANASIKHAMANI MUDALIAR

JUDGEMENT

(1.) The question in this case is whether Exhibits I and C, both dated 14 July, 1902, Exhibit I being ostensibly a deed of absolute sale and Exhibit C an agreement by the vendee to reconvey the property at any time within eight years on payment of the consideration recited in Exhibit I, constitute an out-and out sale and an agreement for re-conveyance or a mortgage by conditional sale. Both the lower Courts have held to the former view and it is urged that they are wrong.

(2.) That such a question is not a pure question of fact is clear from the numerous cases in which it has been allowed to be fully argued in second appeals before this Court.

(3.) The first defendant, vendee, under Exhibit I, was already holding an equitable mortgage on the property. The mortgagor, one C. Velayudha Mudali, was the owner of the property. He sold it to his mother in law under Exhibit B, evidently with a view to avoiding creditors. The first defendant was pressing for payment and the mother-in-law, 8 or 9 months after Exhibit B, executed this ostensible sale deed, Exhibit I, and the first defendant executed the counterpart agreement, Exhibit C, both being executed on the same day. The crucial question is What was the intention of the parties?