1. The question in this case is whether Exhibits I and C, both dated 14th July, 1902, Ex. I being ostensibly a deed of absolute sale and Exhibit C an agreement by the vendee to reconvey the property at any time within 8 years on payment of the consideration recited in Exhibit I, constitute an out and out sale and an agreement for reconveyance or a mortgage by conditional sale. Both the lower Courts have held to the former view and it is urged that they are wrong.
2. That such a question is not a pure question of fact is clear from the numerous cases in which it has been allowed to be fully argued in second appeals before this Court.
3. The first defendant, vendee, under Exhibit I, was already holding an equitable mortgage on the property. The mortgagor, one C. Velayudha Mudali, was the owner of the property. He sold it to his mother-in-law under Exhibit B, evidently with a view to avoiding creditors. The first defendant was pressing for payment and the mother-in-law, 8 or 9 months after Exhibit B, executed this ostensible sale deed Exhibit I and the first defendant executed the counter-part agreement Exhibit C, both being executed on the same day. The crucial question is, what was the intention of the parties ?
4. The plaintiffs argued that the fact that Velayudha Mudali sold the property first to his mother-in-law indicated his and her strong desire to keep the property in the family and that therefore it is likely that the lady did not intend to carry through an absolute sale, which would involve a total loss of the property to the family. But the sale was eight months after she had purchased from Velayudha Mudali and her and his desires are really no indication of what was the intention of the vendee, the first defendant on the date of. Exhibits I and C. It is also pointed out that the first defendant says that he executed Exhibit C because the lady insisted on it, but I cannot hold that that necessarily indicates that she did not intend to sell. The 1st defendant may, as he implies, have given way to her importunity so far as to give her a chance of repurchase within a reasonable time. It is further pointed out that the consideration set out in Exhibit I is not described as the market value of the land but as the amount of the debt owing, to discharge which the sale was carried through, a point which I shall deal with later. On the other hand, both the lower Courts find that the amount of consideration was art adequate market value for the land. In Exhibit C there is not hint that the consideration for reconveyance was to be arty amount calculated on the footing of the mortgage, and it contains no provision for interest on the mortgage amount. The expenses of the reconveyance were to be paid by the vendor and not by the vendee. It is also pointed out that the first defendant already held an equitable mortgage over the land and that there was little point in his changing one form of mortgage for another. It is also significant that the heirs of the ostensible vendor did not choose to challenge the nature of this sale until sixteen years later, eight years after the period fixed in Exhibit C for reconveyance.
5. Numerous cases have been cited to me laying down the principles by which the Court should be guided in a case like the present. That there is no presumption in favour of a mortgage by conditional sale is clearly laid down in the Full Bench case in Muthuvelu Mudaliar v. Vaithilinga Mudaliar : (1919)36MLJ385 . It is not the form of the document but the intention of the parties which is the deciding factor, and it rather lies on the party who contends that a document prima facie connoting absolute sale is really a mortgage to prove his contention. I shall not go through the cases in detail but one or two remarks may be made. An uncommon state of circumstances, for which there is no counter-part in this case, influenced the decisions in Muthu-karuppa Pillai v. Marudachalam Chetti 27 IndCas 436 and Singaram Chettiar v. Kalyanasundaram Pillai (1914) 1 LW 687 and the judgment of Coutts Trotter, J., in Kalappa Kamthi v. Kachur Sakha Rama Rao 29 IND.CAS 898. In Ramayya v. Krishnamma I.L.R. (1899) M 114 : 1899 9 M.L.J 361 the counterpart clearly showed that the relationship of debtor and creditor was to continue and the same is true of the case in Kasturchand Lakhmaji v. Jakhis Padia I.L.R. (1915) Bom. 74 where also the consideration was nothing like the actual market value of the land. In the Privy Council case in Balkisken Das v. W.F. Legge (1899) I.L.R. 22 All. 149 (PC) their Lordships clearly held that the tenor of the agreement indicated that the parties intended in the event of purchase that the provisions of Regulation I of 1798, which was applicable to the redemption of mortgages by conditional sale, should alone be followed-a very clear indication of what the intention of the parties was. The other cases quoted to me were all cases in which the final decision of the Court was that the transaction was an out and out sale and not a mortgage by conditional sale. The documents in the present case seem to me to bear most resemblance to those in Ayyuvayyar v. Rahimansa I.L.R. (1890) M 170, Maruthai Goundan v. Dasappa Goundan : (1916)31MLJ375 and Muthuvelu Mudaliar v. Vaithilinga Mudaliar : (1919)36MLJ385 . The mere fact that the deed of sale does not say that the amount of consideration is the market value of the land is unimportant. The same omission appears in the sale deed in Muthuvelu Mudaliar v. Vaithilinga Mudaliar's Case : (1919)36MLJ385 . I can find no clear indication that the parties here intended to perpetuate the relationship of debtor and creditor, and that is the crucial test in the case. I am unable to hold that the lower appellate Court misdirected itself or committed any error of law in concluding that the suit transaction was an out and out sale and not a mortgage. I see no reason to interfere and dismiss this appeal with costs.