S. R. RAJASEKHARA MURTHY, J. ( 1 ) 1. In this petition, under Article 226 of the Constitution, the order of the Tahsildar Sullia taluk made under the Karnataka debt Relief Act (the Act), is challenged. ( 2 ) ON 7-5-1957 certain agricultural lands belonging to the family of first respondent and his brother, were sold to one Kukkannagowda for a consideration of Rs. 8,000/ -. The said Kukkannagowda was the decree-holder in O. S. No. 155/55 on the file of the Subordinate Judge's Court. Mangalore filed against the first respondent and his brother Bojagowda. The sale deed contained an agreement to reconvey the property to the vendors-judgment-debtors, if they repaid the sale consideration after five years and within 10 years from the date of sale deed. The vendors did not exercise this right of reconveyance within the stipulated time. Respondent-1 made an application before the second respondent under Section 4 of the Act during 1980-81 and sought relief under the Act for declaring the debt said to have been contracted under the sale deed dated 7-5-1957 and also sought restoration of the half-share in the properties sold under the sale deed dated 7-5-1977. ( 3 ) RESPONDENT-2, the Tahsildar, by his order dated 10-9-79 declared the transfer, datad 7-5-57 as a mortgage with a condition to reconvey and directed the petitioner to restore to the applicant's possession, his half-share in all the properties sold under the document. This order of the Tahsildar is challenged by the creditor in this writ petition. Several grounds were urged and argued by Sri U. L. Narayana Rao and smt. Shoba Patil on behalf of the petitioners before me. They are :- (I) that the document in question is an out and out sale and is not a mortgage with a condition to reconvey ; (ii) the Tahsildar had no jurisdiction to declare it as a mortgage and give relief to the debtor under 1980 Act, since the transfer in question is of the year 1957; (iii) that the debtor has lost his right to repurchase the property by lapse of time and no right survived in him to seek any remedy ; (iv) there was no relationship of debtor and creditor to attract the provisions of the KDR Act, 1976, muchless under 1980 Act, and (v) the Tahsildar's order is, therefore, illegal and without jurisdiction and the same is liable to be quashed. Sri Chaithnya Hegde for the first respondent-debtor has argued that the deed dated 7-5-57 is a deed of mortgage with a condition to reconvey and that, therefore, the Tahsildar was competent to declare it as a mortgage under the 1976 act, and hence the order discharging the debt is a valid order. ( 4 ) IT was argued that the said deed cannot be construed as a sale with a condition to reconvey having regard to the circumstances in which the sard deed was executed and the recitals of the deed. The further contention of the respondent is, there was relationship of creditor and debtor between the petitioner's father and respondent-1. The further contention of the respondent is that there was a relationship of creditor and debtor between the peti io- ner's father and respondent-1 and that this is corroborated by the fact and circumstances in which the transaction of sale came about. One such circumstance relied upon by the learned Counsel is that the transfer was made to cover the decretal amount and other debts and that it was not sold for its market value. The other contention of the respondent is that on a proper construction of the document, the tahsildar's order treating it as a mortgage deserves to be upheld and the writ petition dismissed. On these arguments advanced by the petitioner and respondent-1, the questions that arises for consideration are : (i) whether the document in question is a mortgage with a condition to reconvey wihin the meaning of Section 58c of the T. P. Act ? and, (ii) if so, whether the first respondent is entitled to relief under the 1976 Act? smt. Shoba Patil, learned Counsel for the petitioners has relied upon the recitals in the document and has submitted that the deed is nothing but an absolute sale and the provisions of the 1976 Act are not attracted. The Tahsildar's order is also challenged on the ground that he had no jurisdiction to declare the document as a mortgage wrongly assuming the powers conferred on the Tahsildar by Section 13 (3) of the 1980 Act. In support of these arguments, the learned Counsel has relied upon the following decisions :- (I) Bhaskar Waman Joshl and Ors. v. Shrinarayan Rambilas Agarwal and Ors. ( AIR 1960 SC. In support of these arguments, the learned Counsel has relied upon the following decisions :- (I) Bhaskar Waman Joshl and Ors. v. Shrinarayan Rambilas Agarwal and Ors. ( AIR 1960 SC. 301 ) ; (Ii) Bhojumandal v. Debnath (AIR 1963 S. C. 1906), and (iii) Venkatarathnam v. N. S. Nagendra Gupta (1979 Kar. LJ. 283 ). In the first of the cases, the Supreme court was dealing with Sec. 58 of the t. P. Act and the distinction between a sale and a mortgage by conditional sale. Their Lordships held, that the question whether by incorporation of the condition ot repurchase the 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 incorporated in the light of the surrounding circumstances. The Supreme Court, further held that what distinguishes the two transactions, is the relationship of debtor and creditor and the transfer being a security for the debt. ( 5 ) IN the second case reported in AIR 1963 S. C. 1906 Sri Subbarao, J. (as he then was) reiterated the same opinion expressed by Shah, J. , in Bhasker Waman joshi's case. Dealing with Section 58 of the T. P. Act his Lordship held that there is a clear legal distinction between the two concepts - mortgage by conditional sale and sale with a condition of repurchase. Apart from the mortgage the relationship of debtor and creditor subsists and the right to redeem remains with the debtor. The latter is an out-and-out sale, where by the owner transfers all his right in the property to the purchaser reserving a personal right of repurchase. In-the third decision of the Karnataka high Court reported in 1979 (1) Kar. L. J. 283, it was held that the decretal amount is a debt advanced within the meaning of debt occurring in Section 4 of the Act, and the judgment-debtor can claim the benefit of the Act and take this defence in a civil-suit. This decision is of no relevance to the point in issue. L. J. 283, it was held that the decretal amount is a debt advanced within the meaning of debt occurring in Section 4 of the Act, and the judgment-debtor can claim the benefit of the Act and take this defence in a civil-suit. This decision is of no relevance to the point in issue. ( 6 ) IT is argued by Sri Chaitanya Hegde that on a proper construction of the document and considered along with the other surrounding circumstances in which the document came to be executed, the inference that should follow on such construction and appreciation of the other evidence, should be that the sale deed was executed only as a security for the debt incorporating the condition to reconvey in evidence of the said intention. He also relied upon the provisions of Sec. 4 of the 1976 Act which provides relief from indebtedness and one of the debts referred to therein is a mortgage. It is, therefore, argued that the document in question is a mortgage by conditional sale falling within the scope of provisions of Section 58c of the T. P. Act, and that therefore, the Tahsildar had every jurisdiction to treat it as a mortgage giving the necessary relief as per his order. It was, therefore, argued, the question of want of jurisdiction or assumption of power under Section 13 (1) of the 1980 act, does not arise in this case. The learned Counsel has relied upon the following decisions in support of his contention :- p. L. Bapuswamy v. N. Pattegounder ( AIR 1966 SC 902 ). The Supreme Court construed in that case the sale deed (Ext. B1), as a mortgage by conditional sale falling within the provisions of Section 58c of the T. P. Act. Their Lordships held, on facts of that case, that there were several circumstances to indicate that the document was a transaction of mortgage by conditional sale and not a sale with a condition for retransfer. ( 7 ) THOUGH the ratio of this decision is strongly relied upon by Sri Hegde, it ultimately should depend upon the facts of each case. He has also relied upon the decision of the Supreme Court in Bhaskar waman Joshi's case- (AIR 1960 S. C. 301 ). ( 7 ) THOUGH the ratio of this decision is strongly relied upon by Sri Hegde, it ultimately should depend upon the facts of each case. He has also relied upon the decision of the Supreme Court in Bhaskar waman Joshi's case- (AIR 1960 S. C. 301 ). ( 8 ) IT should be noted that this decision is relied upon by the petitioner in support of the argument that the order of the tahsildar holding it as a mortgage should be quashed. Therefore, the ratio of the said decision is that it does not depend upon a mere recital or an agreement to reconvey incorporated in the document, but the intention of the parties and the surrounding circumstances have to be considered before coming to any conclusion that there was a relationship of debtor and creditor which could be spelled out from the terms of the document. This decision, therefore, supports the petitioner's case rather than the respondents'. ( 9 ) THE next decision relied upon by Sri hegde is Chunchun Jha v. Ebadat Ali (AIR 1954 S. C. 345 ). In the said case also, the Court was construing whether the document in question is a mortgage by conditional sale or a sale out and cut with a condition of repurchase. The court held that this was a vexed question and must be decided on its own facts. It was stressed that in all such cases, the intention of the parties become the determining factor. Their Lordships held on a construction of the document and taking into consideration all the surrounding circumstances which clearly indicated, there was relationship of creditor and debtor and it was intended to continue by the recitals of the said document. Therefore, the conclusion of the Court that the deed was a mortgage by conditional sale under Section 58c of the T. P. Act, was a conclusion which their Lordships arrived at after taking into consideration the special facts and circumstances of the case. It is to be stated that the said decision is distinguishable on facts and are not identical with those of the present case. ( 10 ) THE next decision relied upon by Sri hegde is-Pobbati Obayya v. Amilineni chinna Venkatappa (AIR 1974 A. P. 232 ). It is to be stated that the said decision is distinguishable on facts and are not identical with those of the present case. ( 10 ) THE next decision relied upon by Sri hegde is-Pobbati Obayya v. Amilineni chinna Venkatappa (AIR 1974 A. P. 232 ). It is again a reiteration of the principle that construction of a document visa-vis the application of Section 58c depends on the facts and recitals contained in the document and the surrounding circumstances. After consideration of the argument and the cases relied upon by both sides, it would be necessary to refer to certain recitals in the document in this case. The petitioner is the purchaser under the document for a total consideration of rs. 8000/- in the year 1967. The properties conveyed under the said document are agricultural lands. Though the antecedent relationship between the parties was that of decree-holder and judgment-debtor, the circumstances under which the respondent-1 and his brother sold the lands was with the object of protecting the other family properties from bring sold for the debts and also to satisfy the decree and other debts. It can, therefore be reasonably inferred that the vendors voluntarily and with the unambiguous intention of disposing of the properties in order to discharge the several debts executed the deed of sale. No doubt, the document contained one other recital - that in case the vendors were in a position to repay the entire sale consideration to the purchaser after a period of five years from the date of the sale deed, the purchaser must reconvey the properties to the vendors. ( 11 ) ON the facts of the case, it cannot be contended that the relationship of the parties was that of a debtor and creditor and that it continued even after the property was conveyed under the said document. It can safely be concluded from the facts of the case and surrounding circumstances that it was an out and out sale, and the agreement to reconvey which was incorporated in the sale-deed, does not spell out any relationship of debtor and creditor though there was an obligation to retransfer the property with in the period specified and on satisfying the requirements of the said stipulation. The vendors lost this right of repurchase and the purchaser-petitioner perfected his title on account of their failure to ask for the reconveyance of the property within the stipulated time. The order of the Tahsildar is, therefore, liable to be set aside and the application of the first respondent for discharge of the debt under the document, dismissed. In the result, the writ Petition is allowed and the order of the Tahsildar, sullia Taluk, Sullia, dated 11-2-1982 made in - D. R. N. R. 11-80-81 (Annexure-B) , is quashed. Sri S. V. Jagannath, High Court Govt. Advocate is permitted to file his Memo of appearance. Writ Petition Allowed. --- *** --- .