SETHUMADHAVA AYYAR Vs. BACHA BIBI

JUDGEMENT

(1.) The suit from which this second appeal arises was instituted by the present appellant as plaintiff for redemption of a mortgage of the suit property which, according to the plaintiff, was made by two instruments marked as Exs. A and B in this case. Both the lower Courts have held against the contention of the plaintiff, and, holding that the agreement constituted merely a sale and an agreement to re-sell, and finding that the term limited by Ex. B for re- purchase of the property had long ago expired, dismissed the plaintiff's action.

(2.) On appeal here it has been strenuously contended by Mr. Seetharama Rao that, on a proper construction of Exs. A and B with a consideration of the surrounding circumstances, the proper conclusion to arrive at is that together they constituted but a mortgage by conditional sale and that the lower Courts were wrong in construing them in the manner they have construed. It must be said that there are many features in these instruments which would rather go to show that what was really intended by the parties was a mortgage; and if it were necessary for us for the ultimate decision of this case to find one way or the other, we should be disposed to find that the transaction was really a mortgage. But in the, view we have taken of this case on another point it has not become necessary to find finally with regard to that question. However, the points, having regard to which we are inclined to find that the documents constituted a mortgage, may be briefly referred to. Both the documents are proved to have been part of one transaction; both of them bear the same date, 8 day of April 1878. Ex. B is in terms a counterpart of Ex. A.

(3.) The expression used for sale by the purchaser is "reconvey." The time within which such reconveyance should be obtained the vendor is ten years. The mere fact that such a long period was fixed for the purpose of obtaining reconveyance would to some extent be a strong indication that what was intended by and between the parties was not a mere resale, because in that case the price of the property may undoubtedly vary in the course of ten years; but what was in the minds of the parties was that the property should be merely security for the amount and that in lieu of interest the profits of the property should be enjoyed by the transferee. There is as against this no doubt the strong circumstance that the property has been found by the lower appellate Court to have been on the date of this conveyance to be worth only about the amount of the consideration specified in the deed. It may be that, though the property was not worth substantially more than the amount of the price, still it might have been intended merely as security having regard to the relationship between the parties and there is nothing untoward in a brother agreeing to accommodate his brother when he is in difficulty by advancing the necessary amount and agreeing to reconvey the property on receipt of the money advanced. But, as already observed, it is unnecessary for us-definitely to come to any conclusion on this point. In this connexion it must be observed that, even under the terms of this document which was made in 1878, the ten years that were fixed for the re-purchase of the property expired in 1888 and that for nearly 44 years nothing more was said or done by the plaintiff in respect of this land. No claim was made in the interval. In the meantime, about 22 years after the time fixed for repurchase, the original transferee - himself sells the property to the present defendants.