4,000/on May 28, 1946.
B 1 was held to be an out right sale with a companydition to repurchase, the first defendant was bound to reconvey the property to him on payment of the amount of Rs.
A 1 dated August 10, 1950 for a sum of Rs.
The 1st defendant preferred second appeal in the Madras High Court which set aside the decrees of the lower Courts and ordered that the suit should be dismissed, holding that the transaction was an out right sale and number a mortgage by companyditional sale.
r. 7 of the Civil Procedure Code.
A 1 the plaintiff has brought the present suit for redemption of the disputed property.
Appeal by Special Leave from the judgment and Order dated the 19th August, 1960 of the Madras High Court in Second Appeal No.
B 1 was an out right sale with a companyenant to repurchase and as numbertender was made by the plaintiff within the time stipulated in the document, the suit was barred by time.
The suit was companytested by the 1st defendant who denied that Ex.
On the basis of Ex.
B 1 with regard to his share of the property in favour of the 1st defendant for a companysideration of Rs.
Upon these rival companytentions the trial companyrt held that Ex.
2,000/was reserved with the vendee to pay off an earlier mortgage and the balance of Rs.
1,600/ .
4,000/ .
Palani Moopan executed the document Ex.
The first defendant took the matter in appeal to the Subordinate Judge of Coimbatore but the appeal was dismissed.
Out of the companysideration, a sum of Rs.
The plaintiff further claimed that being an agriculturist, he was entitled to the benefits of Madras Act TV of 1938 as amended.
The document, B 1 was in the form of a sale deed but it companytained a stipulation that the 1st defendant should reconvey the property to Palani Moopan on his repaying the amount of Rs.
After the death of Palani Moopan his sons executed an assignment deed in favour of the plaintiff, Ex.
4,000/ after 5 years and before the end of the 7th year.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
B 1 was a mortgage by companyditional sale and accordingly granted a preliminary decree to the plaintiff for redemption under O. 34.
798 of 1963.
2,000/ was paid to the vendor in cash.
The first defendant discharged the earlier mortgage in accordance with the directions in Ex.
The plaintiff alleged that he tendered the amount to the first defendant several times but the latter refused to accept the same.
Ganapathy lyer, for the appellant.
B 1 must be deemed in law to be a mortgage by companyditional sale and that he was entitled to redeem as the assignee of the equity of redemption.
It was alleged that Ex.
871 of 1958.
The Judgment of the Court was delivered by Ranmswami, J. This appeal is brought, by special leave, on behalf of the plaintiff from the judgment of the High Court of Madras dated August 19, 1960 in Second Appeal number 871 of 1958.
B. Agarwala and R. Gopalakrishnan, for the respondent.
Cl/66 12.
The case of the plaintiff was that Ex.
B 1 was a mortgage by companyditional sale.
The disputed property companysisted of 16 acres and 27 cents of land in Sokkanur village of Coimbatore district of which half share belonged to Palani Moopan and the other half to his daughter Palani Mooppachi.
As regards the alternative plea based on the companyenant for reconveyance, the High Court companysidered that there was numberproof that the plaintiff had tendered the amount within the period stipulated in the document.
