JUDGMENT C. Raghavan, J. 1. The second appeal is by the first defendant in a suit for recovery of possession of immovable property with mesne profits. The respondent brought the suit on the allegation that the appellant sold the suit property to him under Ex. P-1 on 19th June 1957 and that the respondent, allowed the appellant to be in possession of the property as the former was away in Malaya. The respondent alleged further that Ex. P-2, an agreement of the same date between the parties for retransfer of the property within two years, was not performed by the appellant, as he did not pay the amount and take a re-assignment within the stipulated time. The appellant contended that Exx. P-1 and P-2 constituted one transaction and that the transaction was only a mortgage by conditional sale. He also claimed that he was entitled to benefits of section 9 of Kerala Act XXXI of 1958 and was entitled to pay the mortgage debt in instalments as contemplated by the Act. The trial court held that "Exx. P-1 and P-2 were thought of, prepared, executed and presented simultaneously and were registered by consecutive numbers. " 2. Still, it held that the transaction was not a mortgage, but an out and out sale. The lower appellate court, on the other hand, held that in the circumstances surrounding the case, the transaction was only one of debt. However, it held that the provision of Act XXXI of 1958 that applied to the case was sub-section (3) of section 9, and not sub-section (1) of that section. In that view, the lower appellate court confirmed the decree of the trial court. It held that since the appellant did not comply with the provision of sub-section (3), namely, since he did not deposit half the mortgage money under sub-section (2) of section 11, he was not entitled to benefits of Act XXXI of 1958. The first defendant, as already stated, has come up in second appeal; and the plaintiff has filed a memorandum of objection against the finding of the lower appellate court that the transaction was a debt and not a sale. 3. The respondent contended that Ex. P-1 was executed at the first instance; and that Ex. P-2 came to be execu­ted subsequently, as the appellant requested the respondent to allow him to continue in possession. 3. The respondent contended that Ex. P-1 was executed at the first instance; and that Ex. P-2 came to be execu­ted subsequently, as the appellant requested the respondent to allow him to continue in possession. The two documents bear consecutive registration numbers; and the registration number in Ex. P-2 appears to have been inserted in a different ink in a blank space left when the document was prepared. Both the documents appear to have been presented before the Sub-Registrar between 11 a.m. and 12 noon on 19th June 1957, though the respondents evidence on this point is that Ex. P-2 was presented for registration in the afternoon. The stamp papers for both were also purchased on the previous day. Therefore, Exx. P-1 and P-2 were undoubtedly simultaneous transactions. 4. Under section 58(c) of the Transfer of Property Act a transaction will be a mortgage by conditional sale only if the provision for retransfer is embodied in the same document as the document of purported or apparent sale. In finding out whether a transaction is a mortgage by conditional sale or is only an out and out sale with a condition superadded for re-purchase, it is the intention of the parties that has to be considered. The intention may be gathered from the contents of the deed and the circumstances surrounding the transaction. The evidence of contemporaneous conduct of parties is always admissible as a surrounding circumstance; and what distinguishes a mortgage by conditional sale from a sale with a condition superadded for re-assignment is that in the former the relationship of debtor and creditor exists, while in the latter no such relationship exists: vide Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal A.I.R. 1960 S.C. 301. 5. In the case before me, I shall forget the provisions of Act XXXI of 1958 for a moment and see what the position is. As pointed out by the Supreme Court in K. Simrathmull v. Nanjalingiah Gowder A.I.R. 1963 S.C, 1182, Exx. P-1 and P-2 constitute the same transaction ; the transaction cannot be claimed to be a mortgage by conditional sale under section 58 (c) of the Transfer of Property Act, because that provision requires that the stipulation for re-conveyance should be in the same document as the document of sale; and the time mentioned in Ex. P-2 is material and has to be punctually observed. P-2 is material and has to be punctually observed. I may point out in this connection that the appellants claim was that the period mentioned in Ex. P-2 was not the essence of the contract and was not to be strictly applied. Therefore, apart from the provisions of Act XXXI of 1958, the position is that though Exx. P-1 and P-2 constitute one transaction, it is not a mortgage by conditional sale under the Transfer of Property Act; and that since the appellant did not comply with the stipulation to pay the amount and re-purchase within the two years mentioned in Ex. P-2, he cannot retain the property. 6. Now I shall consider the position under Act XXXI of 1958. Section 9 of the Act provides that notwithstanding anything contained in the Indian Evidence Act or in any other law, an agriculturist may prove that a transaction entered into between him and another is not in fact a transaction which it purports to be, but is a transaction of debt This provision gives a party like the appellant the right to give even oral evidence to show that the transaction is really one of debt. It follows that in such a case a person like the appellant is entitled to construe both the documents together, because they are only contemporaneous transactions which are relevant as surrounding circumstances. In such a case, therefore, section 58 (c) is not a bar. 7. I shall next advert to the relevant provisions of Exx. P-1 and P-2. Ex. P-1 is a short document under which the consideration fixed is Rs. 7,491 out of which Rs. 6,294 were already received by the appellant by cheque, Rs. 497 constituted the interest thereof and Rs. 700 were paid in cash on the date of the document. Nothing more is recited in the document excepting that the property was given in assignment and that the respondent might obtain mutation in his name and enjoy the same. There are two items included in the document, the first being the property sold and the second having been given as indemnity. For what purpose the indemnity was given is not indicated; and no mention is made about the presence or absence of any encumbrance on the property. Ex. There are two items included in the document, the first being the property sold and the second having been given as indemnity. For what purpose the indemnity was given is not indicated; and no mention is made about the presence or absence of any encumbrance on the property. Ex. P-2 recites that the property should be re-assigned to the appellant by the respondent, if the former paid the consideration amount with interest at four per cent within two years. The document also shows that the property was left in the possession of the appellant and that there was an encumbrance of Rs. 1,000 by way of a previous mortgage on the property. It further recites that the respondent was to pay off the encumbrance during the two years if he was compelled to do so; and that if he was so compelled, then that amount would also be paid when a retransfer was claimed. Again, there is no provision for payment of rent or profits; and the provision is only for payment of interest. The further provision is that if the respondent was not present in the locality at the time when the appellant sought retransfer, the latter might deposit the amount in the Kumbanad branch of the Travancore Forward Bank; and on such deposit, the entire ownership of the property would vest in the appellant. The only other recital is that the appellant paid Rs. 50 on that day towards consideration for re-purchase and that the respondent received the same. 8. The first question for consideration is whether Exx. P-1 and P-2 read together created only a mortgage or an out and out sale. The respondent has stated in the box that he left the appellant in possession of the property, because he was away in Malaya. But it has come out in his own evidence that he was already owning properties, which were in the possession and management of his brother. Again, the non-mention of the existence of a prior encumbrance in Ex- P-1 is tell-tale that Ex. P-1 was not intended to be a sale. If it was, the encumbrance would have been mentioned in Ex. P-1l rather than in Ex. P-2. The provision in Ex. Again, the non-mention of the existence of a prior encumbrance in Ex- P-1 is tell-tale that Ex. P-1 was not intended to be a sale. If it was, the encumbrance would have been mentioned in Ex. P-1l rather than in Ex. P-2. The provision in Ex. P-2 to the effect that the respondent need pay off the encumbrance only if he was compelled to do so during the period of two years mentioned therein is again, in my considered opinion, a strong indication that what the parties contemplated was only a mortgage and not a sale. If it was a sale, and ownership passed to the respondent, he, as owner, would have complete liberty thereafter to pay off the prior encumbrance. It may be that when a re-purchase was made by the appellant, he would have to pay that amount as well. There need not have been any embargo on the right of the respondent to pay off the encumbrance. The provision for payment of interest is again indicative of a mortgage. If the property was left in the possession of the appellant as a mere agent of the respondent, there would have been some provision for payment of income or profits during the time he was in possession. Such a provision in conspicuously absent. Another provision pointing in the same direction is the provision giving a right to the appellant to deposit the money in the Travancore Forward Bank, whereupon the entire ownership of the property would vest in the appellant. It is also noteworthy that the major portion of the consideration formed an existing debt payable by the appellant. 9. Against the aforesaid circumstances the learned Advocate General arrays two circumstances which he claims are very clinching. The first is that it is not established that the price under Ex. P-1 is insufficient: in other words, it is not proved that the property at the time of Ex. P-1 was worth more than the consideration mentioned in Ex. P-1. The appellant has given evidence that the property would be worth about Rs. 70 per cent, whereas the price paid under Ex. P-1 would work out only at Rs- 35 per cent. However, the lower courts have not believed him; and therefore the position remains that the inadequacy of the price is not established. The second circumstance pointed out by the learned Advocate General is the indemnity clause. 70 per cent, whereas the price paid under Ex. P-1 would work out only at Rs- 35 per cent. However, the lower courts have not believed him; and therefore the position remains that the inadequacy of the price is not established. The second circumstance pointed out by the learned Advocate General is the indemnity clause. He contends that this clause can indicate only a sale; and that it is inconsistent with the transaction being a mortgage. I do not think so. It is not indicated in Ex. P-1 why the indemnity was given. There is no suspicion of any defect in title or any possible future claim by anybody. The bare statement is that the second item is given as indemnity. In my opinion, since the parties knew of the existence of the encumbrance and since there was also the possibility of interest accumulating, the parties might have thought it necessary to have an additional indemnity. I may here point out that the inclusion of another item in Ex. P-1 as indemnity might in all probability indicate that the price paid under Ex. P-1 was not inadequate. The provision for indemnity is thus explainable; and it cannot be said to be inconsistent with the transaction being a mortgage. Considering all the circumstances and the recitals in both the documents, I agree with the view expressed by the District Judge that the transaction was one of debt and not a sale. 10. The next question is as to which of the sub-sections of section 9 that applies to the case whether sub-section (1) or sub-section (3). If sub-section (1) applies, the appellant has the right to pay the mortgage debt in instalments under the provisions of the Act other than section 11. If it is sub-section (3) that applies, then the decision of the lower courts has to be confirmed, because the appellant has not complied with the provisions of sub-section (2) of section 11. 11. Under both the sub-sections the real nature of the transaction can be exposed disregarding the trammels of the Evidence Act. It has already been found that the transaction is a mortgage. 11. Under both the sub-sections the real nature of the transaction can be exposed disregarding the trammels of the Evidence Act. It has already been found that the transaction is a mortgage. The Full Bench, decision of this Court in Paul v. Dharmodayam Company, Trichur 1963 K.L.T. 490 (F.B) has held that sub-section (1) enables an agriculturist to re-open a subsisting transaction and to discharge it by payment under section 4, whereas sub-section (3) applies to concluded transactions. If the present case is examined in the light of the Full Bench decision, what appears is that subsection (1) applies, because the transaction construed as a mortgage was subsisting. It may also be noted that the two years' period mentioned in Ex. P-2 had not yet expired when Act XXXI of 1958 came into force. On that ground also it is claimed that the transaction was subsisting. Again, since possession did not pass from the appellant to the respondent, the mortgage could only be a simple mortgage and not a possessory mortgage. Then the mortgage debt may be repaid under section 4. It may also be pointed out that sub-section (3) of section 9 can apply only to a case where the creditor was in possession of the property, because the sub-section, provides for the accounting of the income derived by the creditor from the property. In that view also, sub-section (3) does not appear to have any application. 12. But, the learned Advocate-General argues that subsection (3) applies to a purported sale, and that in the case in hand Ex. P-1 is a purported sale. If this contention is closely scrutinised, the position emerging is one not accepted by the Full Bench. The Full Bench has rejected join the view that sub-section (1) is general or is a genus, and sub-section (3) is particular or special relating to purported sales and to leases of usufructs or a species of the genus. In my considered opinion, the contention of the learned Advocate General in effect means that sub-section (1) deals with a genus and sub-section (3) with a species of the genus. Therefore, the contention cannot stand. 13. If all section 11 can be applied to this case, it can only be by construing the possession of the appellant as possession under a lease-back from the respondent. Therefore, the contention cannot stand. 13. If all section 11 can be applied to this case, it can only be by construing the possession of the appellant as possession under a lease-back from the respondent. Even in that case sub-section (6) of section 11 alone can apply, in which event also the debt has to be treated as a simple mortgage and provisions of the Act other than sub-sections (2) to (5) of section 11 have to be applied. 14. As a result of the foregoing discussion, I hold that it is sub-section (1) of section 9 that is applicable, and that the appellant is entitled to pay off the debt under the provisions of the Act other than section 11. 15. Before I conclude, I may point out one thing. Four cases of purported sales and real sales can be contemplated; and they are: (1)a purported sale with a provision for re-con-veyance in the same document; (2) a purported sale with a provision for re­conveyance in another document; (3) an actual sale with a provision for re-con­veyance superadded in the same document; and (4) an actual sale with a provision for re­conveyance embodied in another document. 16. To the first two of the above cases section 9 will apply. To the third case section 23 will apply, if the period stipulated for reconveyance had not expired at the commencement of the Act. In such a case the transaction, though a real and completed sale will be deemed to be a mortgage. The fourth case, namely, an actual sale with a provision for re-conveyance embodied in a separate document, is not provided for in the Act. In such a case, as the Act now stands, the vendor has no relief under the Act. Whether such a consequence is deliberately intended by the legislature or not, the language of section 23 points only in that direction. In conformity with the conclusions I have reached above, I allow the second appeal, set aside the decision of the lower courts and dismiss the suit. In the circumstances of the case, both parties are directed to bear their respective costs throughout. The memorandum of objection is also dismissed without costs.