Judgment :- 1. A question, a vexed question, to be decided on its own facts', 'dependent on the intention of the parties to be gathered from the contents of the documents and surrounding circumstances', (as pithily put by Iyengar, J. in Veeravunni Haji v. Koyamu,1957 KLT. 550) arises in this second appeal. The question is whether Ext. B1 transaction is an outright sale with the condition of repurchase or a mortgage by conditional sale. 2. The plaintiffs contended that it was such a mortgage and sought to redeem the mortgage and recover possession of the properties. The trial court denied the relief to the plaintiff holding that Ext B1 is a sale absolute with a condition for repurchase and not a mortgage by conditional sale. The appellate court came to a contrary conclusion and decreed the suit. The second appeal is at the instance of the defeated defendants. 3. Both courts have extracted the provisions of the document, analysed their contents and applied the legal principles gatherable from judicial decisions. The divergence of opinion between the two courts below only demonstrates the vexed nature of the question. 4. The trial court summed up the contentions of the plaintiff resting on five counts. They are: "(i) that the condition for reconveyance is incorporated in the same document, (ii) that the same consideration is stipulated for repayment, (iii) that the consideration is an odd amount, (iv) that the expenses for the transactions are met by the plaintiffs, and (v) that the conditions for collection of arrears was only as plaintiff's representatives." Those arguments, however, did not appeal to that court. It thought that the nomenclature of the document, the provision for a divestment of possession on the date of the transaction, a necessary implication regarding the right of alienation of the transferee and the consideration shown in the document being almost equivalent to the value of the property, were all clearly indicative of essential sale character of the transaction. In considering the question whether the consideration was equivalent to the value of the property it mostly relied on the recitals in the document relating to the rent payable in respect of the property and computed the value of the land on that basis. In considering the question whether the consideration was equivalent to the value of the property it mostly relied on the recitals in the document relating to the rent payable in respect of the property and computed the value of the land on that basis. It also compared the value on the basis of the rate disclosed in Ext B7 document in respect of a'nilam' adjacent to the suit properties, the document being of the year 1954 itself and consequently comparable to Ext. B1 dated 17-2-1954. 5. On the question of the price of the property the lower appellate court adverted to and considered the case of the plaintiff that the value of the property at the time of the execution of Ext. B1 document was about Rs. 20,000. This contention was weighed side by side with the claim of the defendants that the price disclosed in Ext. B1 was a reasonable sale price. The evidence of the commissioner who had been deputed to assess the market value of the property was thereafter adverted to. Ext. Cl was the report. The court below noted and there is no challenge to that observation that the defendants did not substantiate their objection to the report of the commissioner though they had filed such objections. The visit of the commissioner was on 13-10-1973 and at that time a'mundakan' crop ready for harvest was visible in the field. On the basis of the data so available relating to the yield he computed the total net yield for the two crops. Comparing the rent payable by the tenants for the two items of properties, the court below thought that the commissioner's assessment of the yield was proper and reasonable. The correctness of the price of paddy adopted by the commissioner for calculating the net income from the property and the resultant market value of the property were not challenged. The commissioner fixed the value of the suit property at Rs. 8,185.13 in the year 1129, It also observed that when a property is sold with possession the price is not fixed on the basis of the rent that was being paid by the previous tenants, suggesting thereby that the approach of the trial court in that regard was not quite proper. Even on that basis, the price of the property an the time of Ext. Bl. Even on that basis, the price of the property an the time of Ext. Bl. according to the court below, would be cot less than Rs. 6.000. This was in marked contrast to the actual consideration shown therein, namely, Rs. 3,485. In other words, the consideration for the transaction Ext. B1 was only about half the market value of the property. This finding of fact is fully supported by the reasoning and evidence on record. It is not amenable to correction in second appeal. For the purpose of the second appeal this court will have, therefore, to proceed on the basis that the consideration of the transaction Ext. B1 was only about half the market value obtainable in respect of the property at the time of the transaction. 6. The lower appellate court, went into every relevant clause in the document and every relevant judicial decision affording guidance in the construction of the same. Ultimately it summed up its conclusion by observing that the following points had been proved: "(i) The condition for repurchase is incorporated in Ext. B1 itself. (ii) That the consideration for reconveyance is the same as the consideration for Ext. Bl. (iii) That the consideration for Ext. B1 is an odd amount. (iv) That the expense for the preparation and registration of Ext. B1 was met by the plaintiffs who are the executants. (v) That the consideration shown in Ext. B1 is less than the actual value of the property at the time of Ext. BI, and (vi) That a two years period is allowed for the transferee to enjoy the property before reconveyance." These factors were sufficient to hold, according to that court, that the transaction was only a mortgage by way of conditional sale. 7. The correctness of the view adopted by the court below comes up for consideration in the second appeal, and with its attendant limitations. 8. It is unnecessary for the purpose of this case to have a circular tour of the judicial decisions on this point. Sufficient guidelines are available from the decisions of this court and of the Supreme Court, most of which had already been referred to by the courts below. A very exhaustive consideration of the question was made by the Supreme Court for the first time in the decision reported in Chunchun Jha v. Ebadat Ali, AIR. 1954 SC. Sufficient guidelines are available from the decisions of this court and of the Supreme Court, most of which had already been referred to by the courts below. A very exhaustive consideration of the question was made by the Supreme Court for the first time in the decision reported in Chunchun Jha v. Ebadat Ali, AIR. 1954 SC. 345 It is not necessary to extract long passages from that judgment. However, the following observations contained therein are apposite in the consideration of the document in the present case: "It is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words" (emphasis supplied) The amendment referred in the passage is the amendment in S.58 of the Transfer of Property Act, clause (c) of which defines and deals with mortgage by conditional sale. In other words, clear and express words are required to displace the presumption when the transaction is embodied in a single document. The Supreme Court, however, cautioned that the mere fact of there being only one document does not necessarily mean that it must be a mortgage. However, the emphasis contained in the earlier passage cannot be overlooked at all. The matter came up for consideration again in Bhaskar v. Shrinarayana, AIR. 1960 SC. 301. Surprisingly enough, the earlier decision of the Supreme Court in Chunchun Jha's case supra is not seen referred to in this later judgment. One aspect has been emphasised in that decision. That relates to the definition of the term ‘mortgage by conditional sale' itself contemplating an ostensible sale of the property. "The appearance of such ostensible sale being laboriously maintained by the words of conveyance needlessly by reiterating the description of an absolute interest or the right of repurchase" as referred toby the Privy Council in Dhanarajagirji v. Parthesaradhi, AIR. 1924 PC 226, was not a decisive circumstance. A still later decision is the one rendered in Bhoju Mandal v. Debnath Bhagat, AIR. 1963 SC. 1906. The decision of the Supreme Court in Bhaskar's case supra is not seen referred to in this judgment. Reference is, however, made to the decision in Chunchun Jha's case supra. This was followed by yet another decision in P. L. Bapuswami v. N. Pattay, AIR. 1966 SC. 902. 1963 SC. 1906. The decision of the Supreme Court in Bhaskar's case supra is not seen referred to in this judgment. Reference is, however, made to the decision in Chunchun Jha's case supra. This was followed by yet another decision in P. L. Bapuswami v. N. Pattay, AIR. 1966 SC. 902. The case was decided on the basis of principles and analysis of the provisions of the section, uninfluenced by the previous decision of the Supreme Court, reference to which is not made in the judgment. The essence of the decisions, however, has been given very clearly in Para.3 of the above judgment of the Supreme Court. The following were the circumstances which weighed with the Supreme Court in holding that the document under consideration in that case was a mortgage by conditional sale and not a sale with a condition for transfer: (i) The 'important circumstance' that the condition for repurchase was embodied in the same document, (ii) The 'significant fact' that the consideration in the document was only half the value of the property, (iii) The non-transfer of the patta, (iv) The continuance of the payment of kist by the executant and his sons, (v) The 'important circumstance' that the consideration for reconveyance was the same amount as the consideration in the document. 9. It may straightaway be mentioned that in the present case, the important and significant factors referred to in the judgment of the Supreme Court are all present in Ext. B1 to justify the interpretation of that document as one of mortgage by conditional sale. As noted earlier, the transaction is couched in the single document. The consideration under Ext. B1 is virtually only half the market value of the property at the time of the transaction. The stipulation in Ext. B1 is for payment of the same amount for reconveyance. 10. The decision of the Madras High Court in Sayad Ahammed Ali v. Bhageerathi Ammal and others, AIR. 1961 Madras 301, is noteworthy in as much as it has indicated that the nomenclature of the document should not be given emphasis and that the provision for transfer of patta would not be an important factor decisive on the character of the transaction. A provision for transfer of patta, the decision pointed out, may be for facilitating payment of kist. 11. A provision for transfer of patta, the decision pointed out, may be for facilitating payment of kist. 11. It has been held that if the consideration is given as an odd amount that would be a pointer to its being more a mortgage by way of conditional sale than one of outright sale see Murugan v. Jayarama Pillai, AIR. 1974 Madras 311, and Dhulipudi yenkatakrishna Rao v. Anne Nagendran,1956(2) Andhra Weekly Reporter 569. In the present case the amount given as Rs. 3485 in Ext. B1 cannot but be held to be an odd figure. The trial court had apparently brushed aside this circumstance as it was largely influenced by its finding (a finding which has been reversed by the lower appellate court and which has become final) that the consideration in Ext. B1 was almost the same as the value of the property. In as much as this circumstance is no longer available in the light of the finding of the appellate court which I have affirmed earlier, the reasoning of the trial court on this aspect also falls to the ground. 12. It is in evidence in the case that the cost of the execution of the document has been borne by the plaintiffs. There is clear evidence about the same And that is the finding of the lower appellate court. That finding is well-supported by materials and evidence and is not liable to be interfered with in second appeal The circumstance that the cost of the execution of the document is borne by the executant is a factor indicative of the transaction being a mortgage by conditional sale. It was so noted in Arjad Ali v. Habib, AIR. 1919 Calcutta 109, Krishnamurthy v. Venkateswaran AIR. 1952 Madras 11, and Ramachandrayya v. Lakshminarayana Rao, 1956 (2) MLJ. 565. 13. Yet another crucial circumstance is which there is a flood of light on the real character of the transaction is the one which enables the executee of the document to realise the arrears of rent in respect of item 2 of the property dealt with thereunder. The provision is one empowering the executee to realise such arrears as a representative of the executant. Equally important is the provision for the repayment of the amount. There is no obligation whatever for making the payment for a period of two years. The outer limit is fixed as four years. The provision is one empowering the executee to realise such arrears as a representative of the executant. Equally important is the provision for the repayment of the amount. There is no obligation whatever for making the payment for a period of two years. The outer limit is fixed as four years. A clause which releases the executants from their obligation to pay the amount for the initial two years is confirmative of the involved circumstances of the executants and their requiring breathing time for the discharge of the debt. The existence of antecedent debts is also revealed from the document itself. They are strong factors justifying the interpretation that the transaction was in truth and in substance one evidencing a debtor-creditor relationship. A provision which obliges the executee of the document for keeping the property undisturbed for a period has been recognised as a factor indicative of the mortgage character of the transaction vide Para.20 of the judgment in Chunchun Jha v. Ebadat Ali, AIR. 1954 SC. 345. It is noteworthy, that among the executants of the document one is a student and one without any particular avocation These are also circumstances indicative of the executants requiring financial accommodation and consequently their being eager to incur a debt but disinclined to effect an outright sale. 14. Counsel for the appellants sought to emphasise the provisions in the document, such as the nomenclature suggestive of an outright sale the reference to 'sale consideration', transfer by way of sale the provision relating to the direct dealing with the landlord and the provision relating to absolute enjoyment and the power for dealing with the property, as circumstances suggestive of the sale character of the document. These circumstances, however, lose their weight when viewed in the light of the observation of the Supreme Court and the guidelines of the Privy Council, discernible from the decisions in Rhaskar v. Shrinarayana, AIR. 1960 SC. 301, and Dhanarajagirji v. Parthasaradhi, AIR. 1924 P. C. 226. 15. In the course of the fairly long arguments in the case, my attention had been brought to other decisions starting from the decisions of the Madras High Court in Padnabha v.Sitarama, AIR. 1928 Madras 28 and ending with Murugan v. Jayarama Pillai, AIR. 1974 Madras 311. The decisions of the Kerala High Court as reported in Veeravunni Haji v. Koyammu,1957 KLT. 550, Assya Umma v. Kolakkanni Kunhoyi,1960 KLT. 1928 Madras 28 and ending with Murugan v. Jayarama Pillai, AIR. 1974 Madras 311. The decisions of the Kerala High Court as reported in Veeravunni Haji v. Koyammu,1957 KLT. 550, Assya Umma v. Kolakkanni Kunhoyi,1960 KLT. 12, Unichirakutty v. Kuttimalu & others, 1967 KLT. 591, and Shahul Hameed v. Ahamed Kannu,1969 KLT. 338, were also referred to with a view to emphasise one facet or other in the construction of the document. 16. Oppression of time and space precludes a more detailed survey of all these decisions, particularly having regard to the fact that in the light of the principles gatherable from the decisions of the Supreme Court I have come to the conclusion that the interpretation placed on the document by the court below does not call for interference. 17. In the light of the discussion above I have no hesitation to hold that the document, in truth and in affect, is a mortgage by conditional sale and not an outright sale. The result is that the second appeal fails. It is accordingly dismissed but without any order as to costs. 18. Before concluding the judgment I must express my appreciation to counsel on either side for the commendable presentation of their respective cases in an exhaustive manner. In particular, I appreciate the professional zeal displayed and the deep research undertaken in the conduct of the case by counsel for the respondent, Shri. V. Ramkumar, who appeared to have followed the advice of a famous counsel to his devils: "Never make a mistake in your logic; the facts remain at your disposal". (See Six Oxford Thinkers by Algernon Cecil, page 107). Dismissed.