1. It is unfortunate that this matter has to be remanded again to the lower appellate Court, and a suit which was instituted in 1965 has yet to be kept pending. The plaintiffs in O.S No. 598 of 1965 on the file of the Court of the District Munsif, Erode are the appellants herein. The suit was one for redemption of Ex. B.2 mortgage and for recovery of possession. The case of the appellants was that Ex. B-2 was a mortgage by conditional sale and therefore they were entitled to redeem the mortgage. As against this, the case of the respondents was that Ex. B-2 constituted an absolute sale accompanied by an agreement for re-purchase end therefore, the suit for redemption would not he. The trial Court decreed the suit. On appeal preferred by the defendants in the suit, the lower appellate Court, on an earlier occasion reversed the conclusion of the learned Principal District Munsif who decreed the suit. The matter came up to this court in S.A No. 667 of 1969. By judgment and decree dated 7th October, 1971, I allowed the second appeal and remanded the first appeal for fresh disposal. The reason for my remand order was that one of the tests to find out whether a particular transaction was an absolute sale or a mortgage by conditional sale is the adequacy of the price having regard to the value of the property and with reference to that, the learned Subordinate Judge had made a mistake which would have influenced him in coming to be conclusion as to whether the price was adequate or not. After the remand, the matter was disposed of by the learned Principal Subordinate Judge, Erode on 8th March, 1972. In this case, there was no oral evidence at all. In the absence of oral evidence, the learned Subordinate Judge expressed his difficulties in arriving at the value of the property for the purpose of showing that the consideration mentioned in Ex. B-2 was adequate or inadequate, on the basis that the transaction was a sale. However, he recorded a definite finding that Ex. B-2 was not a mortgage by conditional sale and that it was an out-and-out sale and that the plaintiffs were not entitled to maintain the suit for redemption treating Ex. B-2 as a mortgage by conditional sale. The result was, the learned Subordinate Judge dismissed the suit for redemption instituted by the appellants herein. It is this dismissal that is being challenged in the present Second Appeal.

2. The learned counsel for the appellants contends that the language of Ex. B-2 fulfils the requirements of S. 58(c) of the T.P Act and consequently, the transaction under Ex. B-2 must be construed to be only a mortgage by conditional sale unless there are express words in the document or other attendant circumstances to establish that the parties intended to treat the transaction 68 an absolute sale accompanied by an agreement for reconveyance. I am of opinion that this contention is well-founded. S 58(c) of the T.P Act states:

“Where the mortgagor ostensibly sells the mortgaged property—

On condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or

On condition that on such payment being made the sale shall become void, or

On condition that on such payment being the buyer shall transfer the property for the seller the transaction is called a mortgage by conditional sale, and the mortgagee a mortgagee by conditional sale;

Provided that no such transaction shall be deemed to be a mortgage, unless the conditional is embodied in the document which effects or purports to affect the sale.”

The proviso was introduced, for the first time, by the amending Act XX of 1929 Prior to that, there was no stipulation as to whether the condition for re-purchase should be embodied in the same document or not.

3. It is not in dispute that Exhibit B-2 prima facie satisfies the requirements of S. 58(c) of the Transfer of Property Act, because the document ostensibly is a transaction of sale and contains all the terms which will be contained in a document of sale. Ex. B-2 contains a condition that on the executants of the document paying the sum of Rs. 1000/- which was the consideration for the transaction within two years from the date of Ex. B-2, the Vendees should reconvey the property to the executants of the document.

4. With reference to such a situation, the Supreme Court, in Chundhun Jha v. Ebadat Ali and another(1) has observed, at page 347.

“The legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages; therefore it is reasonable to suppose that persons, who, after the amendment choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words, and if the conditions of S. 58(c) are fulfilled, then we are of opinion that the deed should the construed as a mortgage.”

The Supreme Court further observed at page 348.

“Now, as we have already said, once a transaction is embodied in one document and not two and once its terms are covered by S. 58(c) then it must be taken to be a mortgage by conditional sale unless there are express words to indicate the contrary, or, in a case of ambiguity, the attendant circumstances necessarily lead to the opposite conclusion.”

As I pointed out already, the condition is embodied in the same document and it is not embodied in a separate document. The terms of Exhibit B-2 are covered by S. 58(c) of the Transfer of Property Act. Therefore, according to the observation of the Supreme Court referred to above, the transaction under Ex. B-2 must be taken to be a mortgage by conditional sale unless there are express words to indicate the contrary, or, in the case of ambiguity, the attendant circumstances necessarily lead to the opposite conclusion. In this case, the learned Subordinate Judge has unfortunately committed a mistake. In Paragraph 6 of his judgment he has stated, “The plaintiffs have to prove that Exhibit B-2 is a mortgage by conditional sale and not an outright sale,” This statement of the learned Subordinate Judge, on the face of it, is erroneous and runs counter to the law laid down by the Supreme Court. From the law laid down by the Supreme Court it will follow that once the condition is incorporated in the same document and the terms of the document are covered by S. 58(c) of the Transfer of Property Act, the transaction will be considered to be a mortgage only unless the person who asserts that it is Lot a mortgage is able to prove, either from the language contained in the document or from the attendant circumstances, that the transaction was intended to be an outright sale. By throwing the burden wrongly on the appellants herein, the learned Subordinate Judge has committed an error and as a matter of foot, the conclusion of the learned Subordinate Judge would appear to be based upon his view that the appellants had failed to prove that Ex. B-2 was a mortgage by conditional sate. On the face of it, such a conclusion is erroneous. Therefore, I have no alternative but to set aside the judgment and decree of the learned Subordinate Judge and remand the matter for fresh disposal again by the lower appellate Court by finding out whether the respondent herein had shown that the transaction under Ex. B2 is not a mortgage by conditional sale, but an outright sale. As a matter of food from, the extract from the judgment of the Supreme Court referred to already by me, it will be clear (bat the same can be shown by two means one, by establishing that there are express words in the document itself which will be] indicative of the character of the document not as a mortgage by conditional sale and establish it to be an outright sale; and secondly by establishing the attendant circumstances which will necessarily lead to the inference that the transaction was meant to be as outright sale only. If, in the document itself, express words are to be found to show that the transaction was intended to be only an outright sale, there would be no need for me to remand the matter and therefore, I gavn an opportunity to Mr. T.R Rajagopalan, learned counsel for the respondent, to draw my attention to any term in Ex. B2 which will lead to the inference that the transactions under Ex-B-2 was only an outright sale. Apart from referring to certain statements and words contained in the document showing that the transaction was a sale, the learned counsel was not able to draw my attention to any express words which will preclude the transactions being a mortgage by conditional sale and establish that the same is only an outright tale. As a matter of fact, with regard to the reliance on the recitals and words contained in Ex. B-2 as showing the transaction as sale, the Supreme Court itself, in the Judgment referred to already, bat given an answer. The Supreme Court pointed out at page 348 as follows:

“The only weakness in this argument is that when a mortgage is by conditional sale, this is the form it has to take, because S. 58 (c) postulates that there must be an ‘ostansible sale’ and if a sale is ostensible it must necessarily contain all the outwarn indicia or a real sale. The question we are considering can only arise when the word ‘sale’ is used and, of course, a sale imports a transfer of title. The use of the words “absolute proprietor in our places” carries the matter no further because the essence of every sale is to make the vendee the absolute proprietor of what is sold. The question here is not whether the words purport to make the transferee an absolute proprietor for, of course, they must under S. 58 (c) but whether that is done ‘ostenstbly and whether conditions of a certain kind are attached”.

Thus, the recitals contained in Ex. B-2 to show that the transaction was a sale were consistent with the sale being an ostensible one, and therefore, from those recitals, no inference can be drawn that the transaction was not intended to be a mortgage by conditional sale, but was Intended to be only an outright sale.

5. It is in view of the above position it has to be found now whether there are attendant circumstances which will necessarily lead to the conclusion that the transaction under Ex. B-2 was an outright sale as pointed out by the Supreme Court. It is only for this purpose I am allowing the second appeal and remanding the matter to the lower appellate Court to find out whether there were any attendant circumstances which necessarily lead to the conclusion that the transaction under Ex. B-2 was only an outright sale.

6. Accordingly, the second appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside and the appeal, A.S No. 232 of 1966, is itself remanded to him for fresh disposal in the light of this judgment. Since the matter has been pending for a very long lime, the learned Subordinate Judge is directed to dispose of the appeal within a period of three months from this date. The appellants will be entitled to refund of the Court-fee paid on memorandum of Second appeal. There will be no order as to costs in the second appeal. Ho leave.

V.C.S