SAMARAPURI CHETTIAR Vs. ASUTHARSANA CHETTIAR

JUDGEMENT

(1.) THE Lower appellate Court was in error in applying the doctrine that time may not be of the essence of the contract which arises on the construction of contracts of sale to contracts for re-sale of property conveyed. THE true doctrine is stated in Fisher on Mortgages Para II Chapter I. Section 18 and is that if the transaction is not a mortgage the right to repurchase being an option must be exercised according to the strict terms of the power; vide Joy v. Birch (1836) 7 Eng. Rep. 22 : Clause and F 57 Ranelagh v. Melton (1861) 62 Eng. Rep. 627 : 2 Dr. and Sm. 278 and Dibbins v. Dibbins (1896) 2 Ch. 348. THEre is no reason why a different rule should prevail in India. We therefore reverse the decisions of the lower courts and remit the case to the court of first instance for the trial of issues one and four in the light of the observations of the Full Bench in Muthuvelu v. Vythilinga Mudaliar (1919) 36 M.L.J 385. Costs to abide. Appellant to have refund of costs paid on this Memo of Second Appeal.