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Madho Kora and ors. Vs. Gopa Bandhu Nippako and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in6Ind.Cas.512
AppellantMadho Kora and ors.
RespondentGopa Bandhu Nippako and ors.
Excerpt:
document construction of - sale or mortgage--condition to re-transfer. - .....of the income is to be applied towards principal. if the vendor fails to pay the interest each year, he promises to give up the land for the principal amount though that amount might have been reduced during the previous years. it is true there is a promise to transfer pattah at once and an arrangement for re-transfer, if the debt is paid within the time stipulated. this does not, in our minds, prevent the instrument operating only as a mortgage where all the indicia of the debtor and creditor relation are present. we must reverse the decrees of the courts below and pass a decree for the redemption in the terms of section 92 of the transfer of property act. the account to be taken will ascertain the profits which the defendants have received and set off the amount against the.....
Judgment:

. The Courts below have, held that the instrument sued on, which is dated 1868, is a sale on the happening of a condition. We cannot accept this view. The amount for which the sale is to be made is spoken of as a debt. Interest is provided for at a certain rate. There is a promise to pay interest every year. The balance of the landlord's share of the income is to be applied towards principal. If the vendor fails to pay the interest each year, he promises to give up the land for the principal amount though that amount might have been reduced during the previous years. It is true there is a promise to transfer pattah at once and an arrangement for re-transfer, if the debt is paid within the time stipulated. This does not, in our minds, prevent the instrument operating only as a mortgage where all the indicia of the debtor and creditor relation are present. We must reverse the decrees of the Courts below and pass a decree for the redemption in the terms of Section 92 of the Transfer of Property Act. The account to be taken will ascertain the profits which the defendants have received and set off the amount against the interest due. The defendants will, pay the plaintiff's cost throughout.


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