Judgment.- The main question to be decided in this Second Appeal filed by the first defendant from the judgment and decree of the learned Subordinate Judge of Coimbatore, in A.S. No. I of 1958 is whether the conveyance under Exhibit B-1, dated 28tn May, 1946, is an out and out sale with a covenant for re-purchase or a mortgage by conditional sale. The trial Court with which the lower appellate Court agreed held that Exhibit B-1 was a mortgage by conditional sale and granted a decree for redemption. The aggrieved first defendant has preferred this Second Appeal. The property in question originally belonged to one Palani Moopan. He executed Exhibit B-1 in favour of the first defendant for a consideration of Rs. 4,000. The document was styled as a sale-deed and purported to convey the property absolutely to the first defendant by way of sale. Out of the consideration, a sum of Rs. 2,000 was reserved with the vendee to pay off an earlier mortgage on the suit property and certain other properties. The balance of Rs. 2,000 was paid to the vendor in cash. The first defendant discharged the earlier mortgage in accordance with the directions in the sale-deed. The sale-deed recited that the property having been conveyed to the vendee absolutely, the vendee should thereafter enjoy the property with all rights of ownership. The Tamil recital was: After the schedule to the sale-deed appeared a covenant that if after five years and before the expiry of seven years from the date of the sale-deed, the vendor paid to the vendee the sum of Rs. 4,000, the vendee should reconvey the property to the vendor. The Tamil recital ran thus: After the death of Palani Moopan his sons executed in favour of the plaintiffs Exhibit A-1, dated 10th August, 1950, for a consideration of Rs. 1,500. The document is described as a deed of assignment of the right to re-purchase Exhibit A-1 refers to the condition for re-purchase in Exhibit B-1 and states that as the executants namely the sons of Palani Moopan were unable to find the necessary funds to get a reconveyance from the first defendant, they were conveying to the plaintiff their right to re-purchase the property from the first defendant. Basing his right under Exhibit A-1, the plaintiff instituted the suit out of which the Second Appeal arises for a decree directing the first defendant to reconvey to him the suit property for Rs. 4,000 or for such other sum as might be determined by the Court. The plaintiff claimed that Exhibit B-1 must be deemed in law to be a mortgage by conditional sale and that he was entitled to redeem as the assignee of the equity of redemption. On that basis, the plaintiff also claimed that himself and his pre-decessors-in-title being agriculturists, they were entitled to the benefits of Act IV of 1938 as amended from time to time. The plaintiff pleaded alternatively that if Exhibit B-1 was held to be an outright sale with a condition to repurchase, the first defendant was bound to reconvey the property to him on payment of a sum of Rs. 4,000. The plaintiff averred that he tendered the amount to the first defendant several times but the first defendant refused to accept the same. The first defendant of course denied that Exhibit B-1 was a mortgage by conditional sale and maintained that it was an out and out sale with a covenant for re-purchase and that inasmuch as no offer was made by the plaintiff or his assignors within the time stipulated in the document, the suit to enforce a reconveyance was barred by time. The trial Court reached the conclusion that Exhibit B-1 was only a mortgage by conditional sale relying on the folllowing circumstances, namely: (1) There was a stipulation that on payment the vendee should re-transfer the property to the vendor absolutely ; (2) the covenant as to re-purchase is embodied in the same document; (3) the patta had not been transferred to the first defendant; (4) the amount agreed upon as the price for re-purchase was the same as the consideration for the original sale and (5) the sale price of Rs. 4,000 was much less than the real value of the property which fact was borne out by Exhibits A-4 and A-5. The trial Court also found that as it had held that Exhibit B-1 was a mortgage by conditional sale, the suit for redemption was within time. 4,000 was much less than the real value of the property which fact was borne out by Exhibits A-4 and A-5. The trial Court also found that as it had held that Exhibit B-1 was a mortgage by conditional sale, the suit for redemption was within time. On these findings, a preliminary decree for redemption under Order 34, rule 7 of the Code of Civil Procedure for taking accounts and for a declaration of the amounts due to the first defendant under Exhibit B-1 was passed. The appeal by the first defendant against that decree was unsuccessful. The lower appellate Court took the same view as the trial Court as to the nature of Exhibit B-1. The circumstances relied on by the lower appellate Court for agreeing with the view of the trial Court were: (1) that a price below the true value indicated a mortgage, (2) that there was in Exhibit B-1 a clause for reconveyance on payment of the sale price within a certain date and that (3) the vendee did not apply for transfer of patta and the patta admittedly continued in the name of Palani Moopan even after Exhibit B-1. In the view of the lower appellate Court it was clear from those circumstances that the intention of the parties was to treat the tranaction covered by Exhibit B-1 only as a mortgage by conditional sale. The suit was filed originally in the Court of the learned Subordinate Judge as O.S. No. 216 of 1953 on 26th June, 1953, when the Court reopened after summer vacation. Considered as a mortgage by conditional sale, the lower appellate Court held that the suit was within time. The lower appellate Court was also of the view that if the suit had been filed on 28th May, 1953, it would have been within time but as the Court remained closed on that day, the suit filed on the date when the Court reopened would still be within time. The first defendant having failed in both the Courts below has come to this Court in Second Appeal. The crux of the distinction between a mortgage by conditional sale and the sale with a condition of re-transfer lies in the fact that the former is a debt the repayment of which is charged on the property conveyed, whereas in the latter no relationship of debtor and creditor subsists. The crux of the distinction between a mortgage by conditional sale and the sale with a condition of re-transfer lies in the fact that the former is a debt the repayment of which is charged on the property conveyed, whereas in the latter no relationship of debtor and creditor subsists. In form the former is an ostensible sale but in reality a mortgage. The very definition of a mortgage by conditional sale postulates an element of sale. Often the problem, therefore, is to pierce through the form to reach the real intention of the parties to the document that what prima facie appears as price is money repayable for which the transfer is a security. The introduction of the Proviso by the amending Act XX of 1929 to section 58 (c) of the Transfer of Property Act makes it explicit that one or the other of the conditions contemplated in the’ definition of a mortgage by conditional sale should find a place in the document itself which effects or purports to effect the ostensible sale. The true intention has, therefore, to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The general principles which have to be borne in mind in interpreting the document have been laid down by their Lordships of the Supreme Court in Bhaskar Watnam Joshi v. Shrinarayan Rambilas Agarwal1in the following terms: "But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale, a mortgage transaction must of necessity have been intended. The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account but the value to be attached thereto must vary with the degree of formality attending upon the transaction. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to re-transfer the property within the period specified. What distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property......the circumstances that the transaction as phrased in the document is ostensibly a sale with a right of re-purchase in the vendor, the appearance being laboriously maintained by the words of conveyance needlessly iterating the description of an absolute interest or the right of re-purchase bearing the appearance of a right in relation to the exercise of which time was of the essence is not decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambigious they must in the light of the evidence of surrounding circumstances be given their true legal effect. It there is ambiguity in the language employed, the intention may be ascertained from the contents or the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given. Evidence of contemporaneous conduct is always admissible as a surrounding circumstance; but evidence as to subsequent conduct of the parties is inadmissible." Apart from the terms appearing in the deed itself, the surrounding circumstances such as (1) a price below the true market value on the date of the transfer, (2) the continuance of the transferor in possession of the property transferred and the like are regarded as suggestive of a mortgage. But none of such circumstances taken by itself or taken along with other’s may be conclusive on the real intention of the parties to the document. The Court has to look into the language of the deed as a whole and the cumulative effect of all the surrounding circumstances, in order to determine the true nature of the document, namely whether it is a mortgage or a sale. Except expounding the general considerations which should weigh in dealing -with a question like this, the decided cases are not and cannot be of much assistance in determining the real intention of the parties to a particular document. The question being one of intention, it will depend on the particular facts and circumstances of each case. In Bhaskar Waman v. Joshi v. Shrinarayan Rambilas Agarwal1, one of the conditions embodied in the deed of transfer there under consideration was that if within four years and six months from the date of the conveyance, the right of reconveyance in respect of the three houses or any of them was not exercised by the transferors and if the transferees did not desire to retain all or any of the houses, they had the right to recall from the transferors the amount of the consideration and to return all or any of the three houses in the condition in winch they might be. Another condition, among others, contained in the deed was that in the event of failure on the part of the transferors to comply with the request to take back the houses, a breach of agreement, of reconveyance rendering the transferors liable to pay damages should be committed. It was also found that the consideration for the transfer of the properties was inadequate. On those facts and circumstances in the main, the Supreme Court held the document in that case to be a mortgage and not a sale. In this case the language of the deed which has already been referred to in the earlier part of the judgment does not, in my opinion, suggest the existence of any relationahip of debtor and creditor. Throughout, the document proceeds on the basis that the transfer is an absolute sale except that at the concluding part of the document is found the condition for re-purchase within the stipulated period. Throughout, the document proceeds on the basis that the transfer is an absolute sale except that at the concluding part of the document is found the condition for re-purchase within the stipulated period. The question is whether in view of this condition taken along with the surrounding circumstances, namely, (1) that there was no transfer of patta to the vendee, (2) that the consideration for re-purchase is of the same amount as the consideration for the transfer to the vendee and (3) that the consideration for the transfer was below the market value of the property transferred, it may be held that Exhibit B-1 is a mortgage and not a sale. Sri R. Gopalaswami Ayyangar, the learned counsel for the appellant, contends with force that the fact that the condition for re-purchase is embodied in the same document is not by itself conclusive on the question. As regards the alleged inadequacy of consideration, he argues that first of all there was no such plea at all in the plaint and that secondly the consideration for the transfer under Exhibit B-1 has not been established to be so much below the market value as to point to the document being a mortgage and not a sale. It appears from Exhibit B-1 itself that the entirety of the property, and not merely the half share covered by Exhibit B-1, and other properties were mortgaged prior to Exhibit B-1 for a sum of Rs. 4,000. Further as the learned counsel contends, the consideration for Exhibit A-1 itself being only Rs. 1,500, at the most the property conveyed under Exhibit P-1 could only be valued at Rs. 5,500. Exhibits A-4 and A-5 justify the view that the consideration for Exhibit B-1 was not appreciably below the real market value. It appears to me, therefore, that the adequacy or otherwise of the consideration for Exhibit B-1, in the circumstances, is not of much assistance in determining whether Exhibit B-1 is a mortgage or a sale. The only other circumstance is that there was no transfer of patta in favour of the vendee at any time after Exhibit B-1. But this circumstance again is not decisive, It is true that the vendor and subsequently his sons and their assigns under Exhibit A-1 were in possession of the property covered by Exhibit A-1. The only other circumstance is that there was no transfer of patta in favour of the vendee at any time after Exhibit B-1. But this circumstance again is not decisive, It is true that the vendor and subsequently his sons and their assigns under Exhibit A-1 were in possession of the property covered by Exhibit A-1. But it is in evidence that the possession so held was under a lease granted by the 1st defendant, the vendee. The condition embodied in the document Exhibit B-1, though an important circumstance, is not by it elf sufficient to conclude that Exhibit B-1 was intended to be a mortgage. Even regarding the language of the deed as a whole including the condition for reconveyance and taking into consideration all the surrounding circumstances, I am unable to hold that Exhibit B-1 is a mortgage. There is nothing in the deed and there are no surrounding circumstances which clearly point to the existence of a debt repayable under Exhibit B-1 for which a transfer is a security. In my opinion, Exhibit B-1 is an out and out sale but with a covenant for repurchase. It is next argued by Sri R. Gopalaswami Ayyangar that the plaintiff cannot compel specific performance of the condition to reconvey for two reasons, namely, (1) that the covenant for repurchase was personal to the vendor and could not, therefore, be assigned and (2) that, in any case, the plaintiff or his assignor having not offered to repurchase within the specified time, the covenant for repurchase was no longer enforceable. As regards the first ground of the learned counsel, I have no hesitation in rejecting it. There is nothing in the covenant for repurchase embodied in Exhibit B-1 to suggest that it was personal to the vendor. It is true that the language which I have already extracted above in Tamil is that the vendor would tender the price within the stipulated time and that thereupon the vendee should reconvey the property to the vendor. But that does not mean that there was any personal element in the covenant. There is no condition in Exhibit B-1 that the covenant for repurchase was not assignable. Prima facie the rights and liabilities under a contract like an agreement for repurchase are, in my opinion, assignable. But that does not mean that there was any personal element in the covenant. There is no condition in Exhibit B-1 that the covenant for repurchase was not assignable. Prima facie the rights and liabilities under a contract like an agreement for repurchase are, in my opinion, assignable. It is this principle that has been embodied in section 21 (b) and section 23 (b) of the Specific Relief Act, 1877. Under the former provision a contract dependent upon the personal qualification or volition of the parties cannot be specifically enforced. Section 23 (b) states- “ 23. Except as otherwise provided by this chapter, the specific performance of a contract may be obtained by (a).................... (b) the representatives in interest, or the principal, of any party thereto: provided that, where the learning skill, solvency or any personal quality of such party is a material ingredient in the contract or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless where his part thereof has already been performed.” Unless the contract involves a personal quality of party as a material ingredient or there is an express stipulation in the contract forbidding assignment of the rights or obligations thereunder, specific performance of the contract has to be directed. This is what Fry on “Specific Performance of Contracts (sixth edition) states in section 222: ” As a general rule, the benefit of a contract may be assigned in Equity, and the assign can enforce specific performance of it, making his assignor a party. Again in section 225 Fry observes: “It is an obvious principle, that where the learning, skill, solvency or any personal quality of one of the parties to the contract is a material ingredient in it, then the contract can he performed by him alone. Again in section 225 Fry observes: “It is an obvious principle, that where the learning, skill, solvency or any personal quality of one of the parties to the contract is a material ingredient in it, then the contract can he performed by him alone. It may be a matter of indifference to A, whether B or C be the purchaser of the stock or paid-up shares he is selling; but it is a matter of great moment whether a distinguished artist, or his nominee, is to paint a picture for which A may have agreed to pay a certain sum.” In Chinna Munuswami Nayudu v. Sagalaguna Nayudu1the covenant for repurchase read: “......I shall again convey to you the said village after a period of 30 years from this date, i.e., in the Ani cultivation season of the 30th year in case you wish to have the village again, and on your paying the said sum of Rs. 10,000 to me.” It was argued that the emphasis was on the word “ you” and that, therefore, the benefit under the covenant was not assignable. The trial Judge was of the opinion that the word should not in the context, where it occurred, be interpreted to mean that the purchaser undertook to reconvey the property to the particular vendee personally and not his heirs or assigns Spencer and Ramesam, JJ. accepted that view and observed that prima facie a contract for repurchase was assignable and that the fact that the vendee had a period of 30 years to exercise his option to repurchase was indicative that the covenant was not intended to be personal. accepted that view and observed that prima facie a contract for repurchase was assignable and that the fact that the vendee had a period of 30 years to exercise his option to repurchase was indicative that the covenant was not intended to be personal. The matter went up in appeal to the Privy Council in Sagalaguna Nayudu v. Chinna Munuswami Nayakar2and the Privy Council in dismissing the appeal observed: “A document executed by the parties to, and on the date of, a sale of immovable property providing that the purchaser shall reconvey the property to the vendor after a period of 30 years on the vendor paying the purchase price, constitutes a contract enforceable by the assignee of the vendor against the sons of the purchaser ; it is not merely an offer incapable of assignment until accepted by tender of the price.” Before the Privy Council it was not disputed, as seen from the judgment, that if the transaction in question amounted to a completed contract, the benefit of the contract might be assigned. In this case the words and which occurred in the covenant for repurchase, do not in the context, I think, keep in view any personal element as a material ingredient of the covenant. There is no reason to assume merely from the use of those words that the vendee alone could as for performance by executing a resale in his favour. I, therefore, hold that the covenant for repurchase in the instant case was assignable. The second ground of Sri R. Gopalaswami Ayyangar, namely, that as no offer had been made by the purchaser or his assigns or their assignee to repurchase by tendering the required amount to the vendor within the specified time, the right to enforce the covenant was lost, has, however, much force and has to be accepted. The stipulation in Exhibit B-1 was that at any time after five years and within seven years of the execution of the deed the vendor could tender the sum of Rs. 4,000 to the purchaser and call upon him to reconvey the property to him. The deed expressly stated that this condition would be void after the expiry of the specified period. The right to purchaser must be exercised according to the strict terms of the power. 4,000 to the purchaser and call upon him to reconvey the property to him. The deed expressly stated that this condition would be void after the expiry of the specified period. The right to purchaser must be exercised according to the strict terms of the power. That English doctrine referred to in Fisher on Mortgages has been accepted by Sadasiva Ayyar and Napier, JJ. In Samarapuri Chettiar v. Sudarsanachariar3 to be applicable to this country as well. The learned Judges have held that the doctrine that time may not be of the essence of the contract which arises on the construction of contracts of sale of immovable property, is not applicable to contracts of resale of property conveyed. The same principle was applied by the Federal Court in Shanmugam Pillai v. Annalakshmi1. The Federal Court by a majority observed: "The agreement reserved an option to A to repurchase the property and was in the nature of a concession of privilege on fulfilment of certain conditions with a proviso that in case of default the stipulation should be void. A not having paid the instalments punctually according to the term. of the contract, the right to repurchase was lost and could no be specifically enforced. It was not in the nature of penalty and the Court had no power to afford relief against forfeiture for its breach. The lower appellate Court approached the question as one of limitation and formulated the point whether the suit was barred by limitation. Dealing with the point so formulated, it went on to say: "The suit would be within time if filled on 28th May,1953.But the Court was then closed on account of summer vacation. The suit was filed originally in Sub-Court, Coimbatore , as O.S. No.216 of 1953 on 26th June, 1953, the date when the Court reopened after summer vacation. Considered as a mortgage by conditional sale, it is admitted the suit is not barred. Thus either way the suit is not barred by limitation." In my opinion, this is obviously a misdirection Where the condition for repurchase has under the terms of the agreement to be performed within the stipulated time and the time limit has not been adhered to with the result that the right is lost, I fail to see what the Limitation Act has to do with it. Sri K. S. Desikan the learned counsel for the plaintiff-respondent referred me to section 4 and Article 113 of the Limitation Act and contended that as the Court remained closed on 28th May, 1953, the suit filed on the date of the reopening should be considered to be within time. In my opinion the argument has only to be stated to be rejected The period fixed in the document is a condition for the performance and after the expiry of the period, the right reserved is itself at an end. The period fixed in the deed is not the period of limitation prescribed for any suit. Section 4 of the Limitation Act can, therefore, have no application to the present case. No offer was made at any time within the stipulated period by tendering the required amount for repurchase. There is nothing in Exhibit A-8 to which my attention was drawn by Sri K. S. Desikan to show that any offer or tender was made by the plaintiff within the stipulated time to repurchase the property. That being the case, and the right to repurchase having been lost after the expiry of the period by reason of the very terms of the covenant, it seems to me that Article 113 of the Limitation Act can have no application. The plainiff having defaulted and as a result lost the right to repurchase, he cannot resurrect and save the right by resort to the Limitation Act. In the result, the Second Appeal is allowed The judgment and decree of the lower Courts are set aside and the suit will stand dismissed. The appellant will have his costs throughout. K.L.B. ------ Appeal allowed.