- (1.) 1. The plaintiff in O.S.No.270 of 1982 on the file of the District Munsif Court, who had succeeded before the trial court and lost before the first appellate court is the appellant in this second appeal. This second appeal is directed against the judgment and decree of the learned Subordinate Judge, Trichy dated 8th April, 1986 made in A.S.No.268 of 1984 in reversing the judgment and decree made in O.S.No.270 of 1982, dated 24.2.1984.
(2.) FOR convenience the parties to this second appeal will be referred as arrayed before the trial court. At the time of admission, this Court framed the following substantial question of law: "Whether Ex.A-1 is a mortgage by conditional sale or a sale with an option to re-purchase". ? The plaintiff instituted the suit for redemption of the suit property and directing the defendant to execute a reconveyance on receipt of sum of Rs.999.20. The plaintiff pleaded that the suit property is the ancestral property of the plaintiff and his sons who all constitutes a Hindu undivided joint family, that the plaintiff for himself and as father guardian of his sons-minors, Chandrasekaran, Gunasekaran and Sriram executed a deed of mortgage by conditional sale to secure a loan of Rs.7,000 advanced by the defendant on 29.3.1973 that the said instrument is essentially a mortgage by conditional sale as contemplated by Sec.58(c) of the Transfer of Property Act, that it is not a sale with an agreement to reconvey, that the defendant was inducted into possession as a mortgagee, that the defendant has been in enjoyment of the suit property as a mortgagee, that the sum of Rs.7,000 was advanced by the defendant to discharge the debt due to the local co-operative society, which the defendant even after the undertaking, had failed to discharge and that the mortgage is not supported by consideration to the tune of Rs.2,004. It is further pleaded by the plaintiff that the plaintiff is entitled for redemption, that the plaintiff is an agriculturist entitled to the benefits of the Tamil Nadu Debt Relief Act 8 of 1973 and other enactments that in terms of the debt relief enactments, the plaintiff is entitled to scale down the mortgage debt and only a sum of Rs.999.20 is due, which the plaintiff is ready and willing to deposit, that the defendant is estopped from denying the right of the plaintiff to get the reconveyance under the mortgage and that the plaintiff is entitled to relief as prayed for. The defendant resisted the suit contending that the plaintiff is not entitled to redeem the property that the document dated 29.3.1973 is not a mortgage by conditional sale, but it is a sale in favour of the defendant and that Sec.58(c) of the Transfer of Property Act will have no application.
(3.) THE trial court after considering Exs.A-1, B-1 mortgage deed and the evidence of P.Ws.1 and 2 held that Ex.A-1 is a mortgage, that the plaintiff is entitled to redeem the suit property, that the plaintiff is entitled to the benefits of Debt Relief Act and entitled to scale down the debt, which comes to Rs.732.50 and in the light of the said finding decreed the suit as prayed for. The trial court also found that Ex.A-1 is a mortgage by conditional sale and granted a decree for redemption and consequential reliefs as well. Being aggrieved the defendant preferred A.S.No.268 of 1984 on the file of the Second Additional Sub Court, Trichy. The first appellate Court held that Ex.A-1 is conditional sale and it is not mortgage on condition and held that the plaintiff is not entitled to the decree of specific performance of the agreement to reconvey. In that view of the matter, the first appellate court allowed the appeal and set aside the judgment and decree of the trial court and dismissed the suit in its entirety. ;