SHRIMAL, C. J. ( 1 ) THIS appeal is directed against the judgment and decree dated 11-6-1980 of the District Judge, Sikkim at Gangtok, whereby he decreed the suit of the plaintiff-respondent and passed a decree against the defendants declaring the plaintiff to be the owner of the suit-property as well as for delivery of the vacant possession of the suit premises by the defendant to the plaintiff. By the same judgment and decree, a sum of Rs. 1,200/- along with the cost of Rs. 1,000/- were also awarded to the plaintiff. ( 2 ) BEING aggrieved by the aforementioned judgment and decree, defendants have come up in appeal to this Court. Shorn of unnecessary details, the facts necessary for the decision of this appeal in a nutshell are that Shrimati Ratna Kumari Basnet, plaintiff. advanced a loan of Rs. 15,000/- to Dal Bahadur Lama and got a "dik Bandak" mortgage-deed, Exhibit P-21, registered in her favour on 6th Jan. 1958. One of the conditions of the mortgage was that mortgagee will redeem the property after paying the principal amount plus the interest within two years failing which it will be open to the mortgagee to purchase the mortgaged property on the value to be assessed by the Panchas. The defendant obtained a loan of Rs. 8,300/- on 7-10-1962 and executed a document Exhibit P-22. The accounts were settled and the amount of Rs. 35,075/- was found due against Dal Bahadur Lama on 17-7-1964, who executed a sale deed, Exhibit P-1. The consideration was comprised of Rs. 15,000/- mortgage amount, interest Rs. 11,775/- and Rs. 8,300/- unsecured loan. On the same day, document Exhibit P-2 indicating the delivery of possession of the sale property to the purchaser was executed. Besides that, Exhibit P-3, Kut Cultivation document, and Exhibit P-4 were also executed. Exhibit P-4 is a mutual agreement deed, whereby the purchaser agreed to redeliver the suit-property to the defendant in case he returns back the consideration of sale within three years to the purchaser. It was also agreed that if any improvement is made expenditure incurred by the purchaser will also be paid and in case he fails to pay the consideration of sale to the purchaser, he will lose the right of return of the sale property. It was also agreed that if any improvement is made expenditure incurred by the purchaser will also be paid and in case he fails to pay the consideration of sale to the purchaser, he will lose the right of return of the sale property. The case of the plaintiff in the trial Court was that she took possession of Plot No. 71 and she allowed the defendant to live in the house which was standing on plot No. 70 as well as allowed him to retain the possession of Plot No. 72. A house costing Rs. 45,000/- was constructed by her on Plot No. 71 and the same was delivered by the plaintiff to her daughter and son-in-law for residential purposes. Though the defendant failed to pay the amount of Rs. 35,075/- within the stipulated time, yet he refused to deliver the vacant possession of the house as well as that of Plot No. 72. As such, she filed the suit out of which the present appeal arises in the Court of the District Judge at Gangtok, against Dal Bahadur Lama and others. The plaint was ordered to be returned as it was undervalued. Thereafter, she filed another amended plaint on 27-3-1974 which was registered on 2-4-1974 and it was directed that it may be read along with the previous plaint. The defendant No. 1 failed to appear and ex parte proceedings were taken against him. The defendant No. 3, eldest son of defendant No. 1, filed a written statement. He denied the plaintiff's allegation. The case set up by him in the lower Court was that the sale deed, Exhibit P-1 was not intended to transfer ownership rights. It was executed as security against the loan taken by the defendant No. 1. There was no delivery of possession. Defendants were in actual physical possession of the suit-property. In fact, the whole transaction was a mortgage with conditional sale, which is apparently evident from the mutual agreement, Exhibit P-4. The defendant paid the amount of Rs. 20,000/- to the plaintiff on 17-12-1966 vide receipt, Exhibit D-3, and the remaining amount of Rs. 15,075/-was adjusted against Plot No. 71 and from 17-12-1966, the plaintiff became the absolute owner of that plot. The suit property, except Plot No. 71, stood redeemed. The kut agreement was sham and as such the question of payment of kut did not arise. 20,000/- to the plaintiff on 17-12-1966 vide receipt, Exhibit D-3, and the remaining amount of Rs. 15,075/-was adjusted against Plot No. 71 and from 17-12-1966, the plaintiff became the absolute owner of that plot. The suit property, except Plot No. 71, stood redeemed. The kut agreement was sham and as such the question of payment of kut did not arise. In fact, defendant No. 1 was compelled to execute sale deed for non-payment of the alleged loan because under the law, as it stood then, agricultural land could not be sold or transferred in execution of a decree, if by such sale or transfer the said holding would become less than 5 acres in area. The sale deed was executed to circumvent the law and that is why Exhibit 4 was executed on the same day, the intention of the parties was to create a mortgage with conditional sale. Even otherwise, the entire amount was paid in terms of the agreement between the parties and as such the plaintiff was not entitled to get any relief. In the alternative, it was also pleaded that as the suit-property was ancestral property it could not be sold by the defendant No. 1 without the consent of the other coparceners. That the defendant No. 1 used to drink heavily. He signed the sale deed and other documents when he was not in complete senses. The defendant No. 2 also filed a written statement on 20-2-1976 by which she supported the averments made by the defendant No. 3. On the pleadings of the parties, following issues were settled :-1. Whether the transaction of sale was not genuine and the consideration thereof was any loan advanced by the husband of the plaintiff to defendant No. 1 previously?2. Whether defendant No. 1 had paid back or refunded Rs. 20,000/- to the plaintiff towards the consideration of the sale deed under any agreement and thereby brought the sale transaction to an end?3. WHETHER there was any agreement relating to the remaining amount of the sale consideration? If so what were its terms?4. WHETHER defendant No. 1 had continued to remain in possession of the property in suit in his own right as its owner?5. WHETHER the suit is barred by acquiescence, waiver or estoppel?6. WHETHER the property in suit was ancestral of defendants 1 and 3 and defendant 1 had no right to sell the same?7. If so what were its terms?4. WHETHER defendant No. 1 had continued to remain in possession of the property in suit in his own right as its owner?5. WHETHER the suit is barred by acquiescence, waiver or estoppel?6. WHETHER the property in suit was ancestral of defendants 1 and 3 and defendant 1 had no right to sell the same?7. WHETHER the suit is bad for misjoinder of parties?8. WHETHER the plaintiff is entitled to any amount of kut? If so what?9. RELIEF to which the plaintiff is entitled?additional Issue10. A. Whether the suit as framed is maintainable? ( 3 ) THE plaintiff, in support of her case, examined PW 1 Shri H. B. Basnet, husband of the plaintiff, PW 2 Ratna Kumari Basnet, plaintiff herself, PW 3 H. B. Pradhan, scribe of the document and PW 4 Mohan Basnet, son-in-law of the plaintiff. She also placed reliance on Exhibit 1 to Exhibit 28. The defendants, in support of their case, examined DW 1 Surendra Lama, DW 2 Shrimati Mani Moktan, DW 3 Shri J. T. Densapa, former Secretary to the Chogyal and produced document Exhibits D-1 to D-16. The learned Judge, after recording the evidence and giving due consideration to the arguments advanced before him, decreed the suit of the plaintiff as already mentioned above. Hence this appeal. ( 4 ) AT the outset, it would be beneficial to mention here that the provisions of T. P. Act, 1882, were neither adopted in Sikkim prior to its incorporation as Twenty-Second State of Indian Union nor has it been extended under sub-cl. (n) of Art. 371f of the Constitution till the filing of the suit or its decision by the trial Court. No doubt, T. P. Act, 1882 has been extended to Sikkim from 29-7-83 and has been enforced from 1-9-84, but as the provisions of this Act were not enforced in Sikkim at the time when documents were executed or filed in the Court or the case was decided by the trial Court, the stringent provisions of proviso to sub-cl. (c) of S. 58 of the T. P. Act does not govern this case and the nature of the transaction can be determined by reading together in conjunction all the documents written on 17-7-1964 and this case is to be governed by the principles of equity, justice and good conscience. (c) of S. 58 of the T. P. Act does not govern this case and the nature of the transaction can be determined by reading together in conjunction all the documents written on 17-7-1964 and this case is to be governed by the principles of equity, justice and good conscience. ( 5 ) THE question whether the transaction was of mortgage by conditional sale or out and out sale with the condition of reconveyance depends upon the intention of the parties to be gathered from the language of the documents interpreted in the light of the surrounding circumstances. What distinguishes two transactions is the relationship of debtor and creditor and the transfer being a security for the debt; and the form in which the deed was clothed, is not decisive. It is not the form which is of importance but the essence and the intention, as 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 the surrounding circumstances. Reference in this connection may be made with advantage to Bhaskar Waman v. Shrinarayan Rambilas, AIR 1960 SC 301. ( 6 ) THE basic distinction between "conditional mortgage" and a "conditional sale" is that a mortgage leaves the title to the property in the grantor. But conditional sale confers on the grantee, title to the property giving the grantor right to purchase it at a certain price within the stated period. The effect of a mortgage is to charge the money secured upon the mortgage property and to make it answerable for the repayment of such money. The right of redemption is an essential and inseparable attribute of a mortgage. The well-known maxim "once a mortgage always a mortgage, and nothing but a mortgage" is a recognition of the principles that right to redeem is an essential right of the debtor who offers his property by way of security and this right inheres in every transaction by way of mortgage. ( 7 ) A deed, which is absolute on its face, carries a presumption that it is an absolute conveyance and not a mortgage, but a presumption, which is rebuttable on proof of clear and convincing evidence, that it is intended as a mortgage. ( 7 ) A deed, which is absolute on its face, carries a presumption that it is an absolute conveyance and not a mortgage, but a presumption, which is rebuttable on proof of clear and convincing evidence, that it is intended as a mortgage. The party, which alleges that an instrument absolute on its face was in reality intended as a mortgage, has to discharge the burden of proving such an allegation and the Courts insist on a clear, unequivocal and satisfactory proof for rebutting the presumption. In all such cases, the burden of overcoming such a presumption raised from the terms of the written instruments rests upon the moving party. ( 8 ) WHETHER the transaction is essentially a mortgage or an absolute sale with a condition for repurchase, the Courts are required to find out the intention of the parties at the inception of the transaction. The original intention and meaning determine the nature of the transaction. If the real purpose of the transaction is to secure a debt it will be deemed to be a mortgage rather than a conditional sale. As the line of demarcation between a mortgage by conditional sale and a sale with a right to repurchase may very often be obscure, it usually is a matter of considerable perplexity to determine to which category the given transaction belongs. In so far as the intention of both the parties at the execution of the deed is a determining factor, the Courts have formulated certain tests, by no means inflexible or conclusive, to help in arriving at the truth. ( 9 ) THE first principles for ascertaining parties' intention as to whether an instrument is a conditional sale or a mortgage is that the Courts should look more to the substance than to the form of the transaction. It is not infrequent that a transaction of mortgage in substance is disguised as one of ostensible sale. In such a case, the grantor is not estopped from showing the true nature of the seeming sale and the form of the deed is not in itself conclusive as often the form is used as a cover, designed to veil the reality. If the transaction of ostensible sale is a mere device or a cloak to conceal loan secured by mortgage, the Courts will disregard the cloak and look at the real transaction. If the transaction of ostensible sale is a mere device or a cloak to conceal loan secured by mortgage, the Courts will disregard the cloak and look at the real transaction. In other words, the Courts should not content themselves by merely looking to the deed but they should look through it in order to ascertain whether the real nature of the transaction has been disguised by giving it a form and an appearance which is contrary to what it actually is. ( 10 ) THE character of the transaction is fixed according to what the intention of the parties was when entering into it. It is always the parties' intention which stamps the transaction infallibly as a mortgage or a sale. If more than one instrument is executed contemporaneously, then the intention of the parties will be gathered by reading all the instruments together as they will be deemed to constitute one transaction. ( 11 ) THE question in the case at hand is whether the transaction dated 17-7-1964, evidenced by Exhibits P-1, P-2, P-3 and P-4, is a mortgage by conditional sale or not. The learned District Judge, placing reliance on Lal Chand Kallu Mal v. Atma Ram, AIR 1960 Pandh 444 has decided this issues against the defendant. The learned District Judge seems to have not taken any notice of the pleadings of the parties. Para No. 3 of the plaint reads as under :-"that on 17-7-64, the defendants Nos. 1 and 2 executed a joint document in favour of the humble plaintiff that in case they would refund the consideration of the sale deed of Rs. 35,075/- plus improvements thereof, within 3 years the land in question would be returned to him, otherwise the sale deed would stand confirmed as an outright sale deed in favour of the plaintiff, but the defendants failed to redeem it within the stipulated period. " ( 12 ) DEFENDANT No. 3 Surendra Lama, in sub-para (a) of para 18 of the written statement, urged "that the defendant No. 1 was compelled to execute the sale deed referred to in the plaint by the husband of the plaintiff for non-payment of the alleged loan taken by him in order to by-pass the existing law of the land which prohibits any person from taking possession of any landed property which is less than 5 acres for repayment of loan". In sub-para (e) of para 18 of the written statement, he further asserted "that even according to the plaintiff's statements as made in para 3 of the plaint the said sale deed referred to in the plaint was not confirmed and as such it was not a sale in the true sense of the document". The plaintiff, in her statement before the Court, did not make any attempt to explain it and as such it should be held that whatever has been admitted by the plaintiff in para No. 3 of the plaint was true and must be presumed to be true. Reference in this connection may be made with advantage to Nathoo Lal v. Durga Prasad, AIR 1954 SC 355. A Division Bench of the Lahore High Court in Lal Shah v. Hira Lal, AIR 1917 Lah 297 held that admission by a party in the plaint to a suit on solemn affirmation is very strong evidence against him so as to shift burden of disproving facts admitted by him. In Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242, their Lordships of the Supreme Court observed as under:-"admissions in pleadings or judicial admissions, admissible under S. 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong. " ( 13 ) IF according to the plaintiff document dated 17-7-1964, Exhibit P-1 was out and out a sale and Exhibit P-4 had no effect upon its character then there was no necessity for the plaintiff to make an averment in the plaint that if within three years the consideration of amount of Rs. 35,075/- plus improvement charge are not paid and land is not returned to the defendant No. 1, the sale deed would stand confirmed as an outright sale deed in favour of the plaintiff. An out and out sale does not need any confirmation. 35,075/- plus improvement charge are not paid and land is not returned to the defendant No. 1, the sale deed would stand confirmed as an outright sale deed in favour of the plaintiff. An out and out sale does not need any confirmation. Only the mortgage with conditional sale becomes absolute on default of the payment of the mortgage money or stipulation made in the deed. The word 'redeem' has also been used in the plaint. The right of redemption is an essential attribute of mortgage. If the parties would have intended to sell the suit-land, the question of redemption could not have arisen. The well-known maxim "once a mortgage always a mortgage and nothing but mortgage" is a recognition of the principles that right to redeem is an essential right of the mortgagor, who offers his property by way of security and this right inheres in every transaction by way of mortgage. ( 14 ) LEARNED District Judge, while deciding Issue No. 1 and repelling arguments advanced on behalf of the defendants that as holding below 5 acres could not be attached in execution of a decree and the mortgage had also been banned Exhibits 1 and 4 were written on the same day to circumvent the law, observed that the transaction took place on 17-7-1964 and at that time, there was no such ban on transferring of property by mortgages. In fact, the ban was imposed in the year 1966 and, therefore, the present sale transaction could not be said to have been executed to circumvent Sikkim Rural Indebtedness Act, 1966. We would like to observe here that the learned Judge may be correct as far as Sikkim Indebtedness Act is concerned but he failed to take notice of Notification No. 3082/l. R. dated 24-3-1954, published in the Sikkim State Gazette, paragraph 3 of which reads as under :-"sale of land in execution - No Court will sell or transfer a holding or any part of a holding of a primary holder in execution of a decree, whether revenue or civil, if by such sale or transfer the said holding will become less than five acres in area. "the plea of the defendant-appellant in the trial Court and before this Court had been that there was a secured loan of Rs. 15,000/- under mortgage deed, Rs. "the plea of the defendant-appellant in the trial Court and before this Court had been that there was a secured loan of Rs. 15,000/- under mortgage deed, Rs. 8,300/- on a haath chittha, Exhibit 22, under which no interest was payable, amount of interest of Rs. 11,075/- has accrued due by 17-7-1964, and if the plaintiff would have filed a suit for the recovery of the amount it would not have been possible for her to get the decree executed against the land which forms part of the subject-matter of sale deed, Exhibit P-1, and as such to circumvent the law the sale deed was executed and on the same date a mutual agreement deed, Exhibit P-4 was also executed by both the parties. If this argument would have been considered by the learned District Judge in the light of Notification dated 24-3-1954, he would not have made the above noted observations in the judgment. Thus not taking into consideration of the averment made in para 3 of the plaint as well as the Notification dated 24-3.-1954, has vitiated the findings arrived at by the learned District Judge regarding Issue No. 1. As regards transfer of physical possession of the suit-property, no doubt, Exhibits P-2 and P-3 were written but this aspect of the case cannot be brushed aside that prior to the execution of the sale deed defendants were in a possession of the suit-premises. PW 2 Shrimati Ratna Kumari in examination-in-chief stated that "after a kut-agreement, Exhibit 3 was drafted and typed by vendor and signed by the defendant No. 1 in my presence defendant 1 stated at that time that he sold the property under distress and so he may be given 3 years' time for reconveyance of the suit property. I agreed to this proposal and so document Ext. 4 was prepared which was duly signed by me and the defendant No. 1 and attested by the defendant No. 2". The witness also admitted that defendants also requested her that he was an old man and one year's time should be given to him to vacate the Plots Nos. 70 and 72. The tenor of the statement shows that she agreed to this proposal and a mere document of delivery of possession was written. All these facts clearly indicate that the defendant remained in physical possession of at least Plots Nos. 70 and 72. The tenor of the statement shows that she agreed to this proposal and a mere document of delivery of possession was written. All these facts clearly indicate that the defendant remained in physical possession of at least Plots Nos. 70 and 72 including the house standing on Plot No. 70 even after the execution of the sale deed, though according to the plaintiff the defendant did not pay the kut amount yet she filed the suit for the possession of these suit premises in the year 1974. If the intention of the parties was to create an out and out sale and if the amount of reconveyance was not paid within the stipulated time there appears to be no ostensible reason for the plaintiff to wait for seven years to file the suit. It will not be out of place to mention that the consideration of the sale was pre-existing mortgage of Rs. 15,000/-, cash loan of Rs. 8,300/- without interest and interest amount of Rs. 11,770/ -. The vendor was paid nothing at the time of execution of the sale deed. The vendor had sold the entire property which he possessed. If he would have sold portion of the property then it could certainly be said that he wanted to relieve himself of his burden by disposing of a portion of his property rather than to allow entire property to be ultimately swallowed by his immense debt. But in the case in hand nothing was saved and as such we find sufficient merit in the contention of the defendant No. 1 that the document Exhibit 1 was executed by the defendant No. 1 on account of unconscionable money lender's pressure and undue influence making the vendor to execute the sale deed to avoid the effect of Notification of the year 1954. The contention of the plaintiff that actually physical possession was given to her of the suit-property at the time of the execution of the sale deed stands falsified by her own statement. She herself admits that the request of the old man to grant a one year's time to vacate the plot was granted on execution of necessary documents, which indicates that only symbolic possession could, if at all, be given. She herself admits that the request of the old man to grant a one year's time to vacate the plot was granted on execution of necessary documents, which indicates that only symbolic possession could, if at all, be given. As regards the construction of the house by the plaintiff on Plot No. 71 in the year 1964, it would suffice to say that there is no definite evidence on the point. According to para 6 of the plaint, Plot No. 71 was given in gift to plaintiff's daughter Krishna Kumari and her husband in the year 1964 and they constructed a residential house over it worth of Rs. 45,000/- and since then they were in actual possession. The plaintiff in her statement before the District Court stated that she built a house on Plot No. 71 in which her daughter and son-in-law were in permissible possession. She also stated it was wrong that she gifted the Plot No. 71 to her daughter and son-in-law. She was confronted with the plaint allegation but failed to explain the contradictions appearing in her statement and the averments made in the plaint were not explained in spite of the opportunity being given to her. Admittedly, the plaintiff and her husband do business but no accounts have been produced to show as to when the construction on the Plot No. 71 was made. Even though Shri Mohan Basnet, son-in-law of the plaintiff, who is residing in the house, stated that house on Plot No. 71 was constructed at the cost of Rs. 45,000/-, accounts therefor have not been produced. Suppression of accounts does raise a doubt about the year of construction. Moreover, Shri Mohan Basnet stated that the plaintiff constructed their house in the year 1965. DW 1 stated that possession of the Plot No. 71 was given after the adjustment of Rs. 15,075/- was made against the outstanding dues after the payment of Rs. 20,000/- to the plaintiff. DW 2, Mrs. Mani Moktan stated that her husband and she went to the house of plaintiff on 17-12-1966 and paid Rs. 20,000/-to the plaintiff against the receipt. 15,075/- was made against the outstanding dues after the payment of Rs. 20,000/- to the plaintiff. DW 2, Mrs. Mani Moktan stated that her husband and she went to the house of plaintiff on 17-12-1966 and paid Rs. 20,000/-to the plaintiff against the receipt. The payment was made towards the conditional sale-deed, Exhibits P-1 and P-4, which were executed in the year 1964 as the plaintiff asked them to sell the Plot No. 71 for balance of the amount because she wanted to construct a house for her daughter and son-in-law and accordingly they gave plot to the plaintiff. Thus, both the defendants have consistently stated that construction on the Plot No. 71 was not made in the year 1964 or 1965. It is a case of oath against oath. Statements of the defendants when compared with the halting statements by the plaintiff and her witnesses, indicate that the defendants' story is more plausible and the case set up by the plaintiff does not inspire confidence. The learned District Judge was not correct in his observation that physical possession of the suit-property was given to the plaintiff on 17-7-1964. Simply because Mrs. Mani Moktan, DW 2, signed as an attesting witness to Exhibit D-2, it cannot be said that she stands estopped from denying the fact that the physical possession of the suit-property was not delivered. The land receipts are always received in the name of the person in whose name the land is recorded. Payment of the land revenue by the plaintiff or non-payment of the existing revenue by the defendant cannot be said to be of such importance as to nullify the admission made by the plaintiff in para No. 3 of the plaint. ( 15 ) WE, therefore, hold that cumulative effect of the evidence on record and conduct of the parties is that the learned District Judge was not correct in holding that the ratio decidendi in Lal Chand Kallu Mal v. Atma Ram, AIR 1960 Pandh 444 (supra), squarely applies to the case in hand. In that case mortgagor, who was out of possession, had brought the suit after 10 years of the transaction, whereas in the case in hand the defendants-appellants are in possession of the Plots Nos. In that case mortgagor, who was out of possession, had brought the suit after 10 years of the transaction, whereas in the case in hand the defendants-appellants are in possession of the Plots Nos. 70 and 72 as well as the house in which they were living prior to the execution of Exhibit P-4 and suit has been filed by grantee after ten years. Even then she was not in possession of two-thirds of the plots and house constructed on Plot No. 70. Plaintiff of that case Lal Chand, in his examination-in-chief, did not state that the transaction in dispute was in effect or in essense a mortgage, whereas in the case in hand DW 1, in his written statement as well as in his statement before the Court, stated that his parent had also stated to him that holding below 5 acres could not be sold in execution of decree based on loan. The transactions of 'biyajee', 'masikatta' and 'bandaki' had become illegal, as such in order to circumvent the law it was necessary to execute the sale deed. Thus, it is apparent that the facts of the case relied upon by the learned District Judge are not similar and clearly distinguishable. The character of the transaction is determined according to what the intention of the parties was when entering into it. The T. P. Act was not made applicable in Sikkim and as such, both the documents, Exhibits 1 and 4, must be read together as if they constituted one transaction. Such reading together with the admission made in the plaint, Notification No. 3082/l. R. dated 24-3-1954 noted (supra) and the oral evidence as well as surrounding circumstances lead to the inference that the learned District Judge was not correct in deciding Issue No. 1 against the defendants. We hold that the transaction was a mortgage with conditional sale. ( 16 ) NOW, we deal with Issues Nos. 2 and 3. For argument's sake, let us presume that the transaction between the parties was not a mortgage with a conditional sale but an absolute sale with condition for reconveyance and let us consider whether the defendants-appellants have complied with the terms of Exhibit 4. It is an admitted fact by the plaintiff that a sum of Rs. 2 and 3. For argument's sake, let us presume that the transaction between the parties was not a mortgage with a conditional sale but an absolute sale with condition for reconveyance and let us consider whether the defendants-appellants have complied with the terms of Exhibit 4. It is an admitted fact by the plaintiff that a sum of Rs. 20,000/- was paid towards the consideration of the sale under the agreement for re-purchase of the property in compliance with the condition of Exhibit P-4. Regarding the rest of the amount of Rs. 15,075/-, it was urged that the same was adjusted towards the price of the Plot No. 71 and from 17-12-1966, the plaintiff became the absolute owner of Plot No. 71 and Plots Nos. 70 and 72, which were in possession of the defendant-appellant, stood reconveyed automatically. On the other hand, case of the plaintiff is that her husband has obtained a decree for Rs. 25,250,06/- against defendant No. 1 the execution of which was pending. Besides that, some other amount was also due against the defendant. The amount of Rs. 20,000/- was paid to her against the decretal amount and other debts and not in compliance with the terms of Exhibit P-4. The plea regarding adjustment of the remaining amount against Plot No. 71 does not stand substantiate and is imaginary. The trial Court held that was no agreement for adjustment of Rs. 15,075/- against the Plot No. 71 and the amount of Rs. 20,000/- was paid on 17-12-1966 towards the decretal debt and other debts of Dal Bahadur Lama. The receipt Exhibit D-2 does not show against which account the money was paid. Ratna Kumari Basnet stated in the Court that on the previous day D. B. Lama had come to her house to make payment to her husband who was not at home and had gone to Darjeeling on account of tooth trouble and she asked him to come on the following day. When he again came, at that time also her husband had not returned and as such the amount of Rs. 20,000/- was received by her and she issued a kachha receipt, Exhibit D. H. B. Basnet, husband of the plaintiff, also stated that the sale transaction, to which his wife had been a party, had nothing to do with the money transaction which Dal Bahadur Lama had with him. 20,000/- was received by her and she issued a kachha receipt, Exhibit D. H. B. Basnet, husband of the plaintiff, also stated that the sale transaction, to which his wife had been a party, had nothing to do with the money transaction which Dal Bahadur Lama had with him. Witness further states that he issued a receipt to Dal Bahadur Lama on getting Rs. 20,000/- from him and that very day Dal Bahadur Lama had received another loan of Rs. 3,800/ -. It was in fact through several chits, dated 19-1-1967,27-2-1968,13-9-1968, 22-10-1968 and 24-11-1973. A careful perusal of the above chits belies the prior statements of H. B. Basnet regarding the amount of Rs. 3,800/ -. If the money would have been advanced on 17-12-1966, then the receipts could not have been issued up to 1973. Mr. H. B. Basnet and Ratna Kumari Basnet are business persons. She had been advancing loan to the defendant prior to 1966. It does not stand to reason that if she had not received the amount of Rs. 20,000/- towards the Exhibit P-4 and had received towards the outstanding debt of her husband, why she did not mention so in the receipt, Exhibit D-3. She is not an uneducated woman, she deals in property and loans. In her statement, she admitted that she did business up to 1970. After 1970, she used to purchase rationed articles and resell them. In 1957-58, she made a profit of Rs. 10,000/- within 2/3 months. She had independent account and also joint account with her husband. She further admits that she used to purchase grass, fodder, liquor and rationed articles and used to send those articles from Gangtok to 15th Mile, where her husband had a shop. It is very difficult to digest that a person doing so much business shall not be maintaining account. The accounts seem to have been purposely suppressed. As such, adverse inference against the plaintiff can be drawn. Learned District Judge was not correct in observing that a person like Shrimati Ratna Kumari Basnet, plaintiff, would not be expected to know the pitfalls of not indicating in the receipt, Exhibit D-3, that she was receiving the amount on behalf of her husband. Plaintiff was confronted with para No. 6 of the plaint. Learned District Judge was not correct in observing that a person like Shrimati Ratna Kumari Basnet, plaintiff, would not be expected to know the pitfalls of not indicating in the receipt, Exhibit D-3, that she was receiving the amount on behalf of her husband. Plaintiff was confronted with para No. 6 of the plaint. Instead of explaining the contradiction, she simply stated that the allegations in para No. 6 of the plaint (dated 26-3-1974), to the effect that in the year 1964, she gifted plot No. 71 measuring one acre to her daughter Krishna Kumari and her husband, were wrong. She further stated that it was also wrong that her daughter and son-in-law constructed a house on her plot at the cost of Rs. 45,000/ -. She stated that no accounts for construction of a building on Plot No. 71 were kept whereas her own son-in-law, who was residing in the house on Plot No. 71, stated that the house on Plot No. 71 had been constructed at the cost of Rs. 45,000/- and the accounts were kept at that time. Shri H. B. Basnet is a building contractor and deals in other business also. He had also not produced any 'bahi' or account book in support of his verbal statement that Rs. 20,000/- was paid by Dal Bahadur Lama towards his decretal debts and not in compliance with the terms of Exhibit P-4. The learned District Judge, who recorded the statement of PW 1, has noted the demeanour of the witness and has observed that on 16-4-1971, in Execution Case 15 of 1963, H. B. Basnet received a sum of Rs. 9,380. 86 on the claim of Rs. 25,250/- in rateable distribution. If he had received Rs. 20,000/- earlier, how could he have drawn that much amount. The above noted observation of the learned District Judge indicates that in the opinion of the Judge, who recorded the statement, the witness was not telling the truth. It will not be out of place, to mention here that if any amount is received by the decree-holder towards the decretal amount, it is obligatory for the decree-holder to certify such payment or adjustment to the Court which is executing the decree. Witness admitted that the payment of Rs. 20,000/- was not reported to and certified in the Court. It will not be out of place, to mention here that if any amount is received by the decree-holder towards the decretal amount, it is obligatory for the decree-holder to certify such payment or adjustment to the Court which is executing the decree. Witness admitted that the payment of Rs. 20,000/- was not reported to and certified in the Court. All the abovenoted circumstances indicate that PW 1 H. B. Basnet and his wife Shrimati Ratna Kumari Basnet had scant regard for the truth. Surendra Lama, DW 1, and Mrs. Mani Moktan, DW 2, stated that the amount of Rs. 20,000/- was paid to the plaintiff on 17-12-1966 and the payment was towards the conditional sale deed which was executed in the year 1964. They further stated that the remaining amount was adjusted against the cost-price of Plot No. 71, because plaintiff wanted to construct their house on the plot for giving the same to her daughter, and son-in-law. Nothing has appeared in their statement in spite of searching cross-examination on the basis of which it can be said that their statement is not reliable or they have not disclosed true facts. Their verbal statements stand corroborated by Exhibit D3. Besides that, if PW 2, Ratna Kumari Basnet had received the amount of Rs. 20,000/-towards the decretal debt of Rs. 25,250/06, her husband could not have received Rs. 9,000/- in rateable distribution, because the question of rateable distribution arises only when the amount due is more and the amount paid is less and not when the amount paid is more than the decretal amount. Besides that defendants are admittedly in possession of Plot Nos. 70 and 72 and the amount of reconveyance was required to be paid within three years that is, on or before 16-7-1967. If the amount would not have been paid in compliance to Exhibit P-4, plaintiff would not have waited for seven years for filing a suit specially when the defendants were in possession of major part of the property and were not paying any rent or kut amount to the plaintiff. Man may tell lies, but circumstances do not. The overall evidence and circumstances, coupled with the conduct of plaintiff and her husband are so eloquent that no other conclusion, except the conclusion that the amount of Rs. Man may tell lies, but circumstances do not. The overall evidence and circumstances, coupled with the conduct of plaintiff and her husband are so eloquent that no other conclusion, except the conclusion that the amount of Rs. 20,000/-was paid to the plaintiff in compliance to the terms of agreement Exhibit P-4, can be fairly arrived at. ( 17 ) WE, therefore, hold that the decision of the trial Court regarding Issues Nos. 2 and 3 is not correct and the entire amount of Rs. 35,075/- stands adjusted by the payment of Rs. 20,000/- and making plaintiff the absolute owner of Plot No. 71. As the decision of the Issues Nos. 1,2 and 3, as already noted above, disposes of the entire appeal, as such, rest of the issues need not be decided. ( 18 ) IN the result, the appeal is allowed. The judgment and decree dated 11-6-1980 of the learned District Judge are set aside. The suit is dismissed. Parties to bear their own costs throughout. A. M. BHATTACHARJEE, J. :- I agree. Appeal allowed. --- *** ---