KIRPAL SINGH Vs. SHEOAMBAR SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for redemption of an alleged mortgage by conditional sale. On 3 November 1909 a document, ostensibly a sale-deed, was executed by the plaintiff in favour of the defendants for Rs. 1,300 and on the same date there was an agreement by the defendants in favour of the plaintiff agreeing to retransfer the property on certain conditions. The plaintiff alleged that the two documents were evidence of one and the same transaction which constituted a mortgage by conditional sale and that he was entitled to redeem the property. He also alleged that in the Jeth preceding the institution of the suit he had actually tendered the amount but the defendants had refused to take it. His suit was instituted within 15 years of the deeds.

(2.) The defendants denied the execution of any such agreement, although it had been registered and a certified copy of it was produced. In the written statement the defence taken up was that the transaction was not one of mortgage, and that the plaintiff had not complied with the conditions entered in the deed of agreement, even if that be proved. There was no specific plea that this agreement was in fact a separate or subsequent agreement executed quite independently from the sale-deed and represented a distinct and separate contract.

(3.) Both the Courts below have dismissed the plaintiff's suit on the finding that the transaction amounted to a sale out and out. So far as the finding that no tender was actually made by the plaintiff on the Jeth of 1924 is concerned, it is a finding of fact and must be accepted.