MADHU LAL SINGH Vs. DHONGA MANDAL

JUDGEMENT

(1.) This second appeal by the defendant is preferred against the judgment of reversal passed by the District Judge, Purnea in Title Appeal No. 142 of 1976 dated 6th August, 1977 allowing the appeal and thereby setting aside the judgment and decree of the trial Court which decreed the suit for redemption.

(2.) The substantial question of law which was formulated at the time of admission was as to whether Exhibit A is a deed of mortgage by conditional sale or a deed of sale with condition of repurchase and whether the lower appellate Court was right in holding that the document was a mortgage by conditional sale on the ground that the consideration of Rs. 400/- was not the proper consideration for sale specifically in the absence of evidence to that effect. 2. This second appeal was listed for hearing before a Single Bench of this Court. The learned single Judge held that it involves interpretation of the document in question and considered it proper to refer the case to a Division Bench. That is how this case has been placed before us.

(3.) The plaintiff brought this suit for redemption of the document (Ext. A) treating it to be a mortgage bond executed by him in favour of the defendant on 9-8-1972 in respect of five decimals of land appertaining to plot No. 788, Khata No. 36 of village Rahmatpur, P. S. Terhagachh in the district of Purnea. The allegation of the plaintiff who is the respondent before this Court was that he executed a mortgage by conditional sale in favour of the defendant-appellant for a consideration of Rs. 400/- and delivered possession to the latter. According to the plaintiff, he tendered the mortgage money to the defendant but the latter did not accept it and, therefore, he instituted the present suit for redemption.