Munimalaiyan and Others v. Chennammal — 1998 DIGILAW 363 (MAD)

Judgment : The plaintiffs who lost before the lower appellate court are the appellants herein. They filed the suit O.S.No.542 of 1978 on the file of the District Munsif, Hosur for redemption. The case of the plaintiffs is that the suit property belong to one Munimalaiyan who mortgaged the suit property along with other properties to the defendant on 20.12.1961 for a sum of Rs.3,000. He was paying the interest regularly every year. On 210. 1970 the said Munimalaiyan executed the mortgage by conditional sale in respect of the same property and handed over possession of the suit property to the defendant. Though the deed mentions as if it is a conditional sale, it is not a sale virtually but it is only a simple mortgage. As per the recitals in the said deed, the plaintiffs had to redeem the mortgage within three years, failing which the defendant is entitled to have the patta transferred in his name. On the date of execution of the deed of mortgage by conditional sale i.e., 210. 1970, whereas in the deed the sale consideration has been mentioned only a sum of Rs.3,000 which is the mortgage debt. There is specific recital in the said deed that the said Munimalaiyan is liable to indemnify the defendant from other properties in case of any dispute and his legal representatives, the appellants are also liable to discharge the debt and as such the transaction entered into under the document dated 210. 1970 is only a mortgage by conditional sale and not an out right sale. The possession was handed over in lieu of interest. As per Sec. 8 of Tamil Nadu Act 5 of 1978 the plaintiff is liable to pay only a sum of Rs.600 towards the debt, since the defendant is in possession of the property for the period 210. 1970 to 210. 1978 for which period the interest of Rs.2,400 has to be deducted. The said amount has to be cred-ited towards the repayment of the principal and the balance is payable by the plaintiff. During the pendency of the suit, the said Munimalaiyan died and the appellants herein were added as the legal representatives of the said plaintiff. .2. The defendant filed a written statement admitting the executing of the simple mortgage on 20.12.1961 for a sum of Rs.3,000 and the plaintiff was paying the interest regularly. During the pendency of the suit, the said Munimalaiyan died and the appellants herein were added as the legal representatives of the said plaintiff. .2. The defendant filed a written statement admitting the executing of the simple mortgage on 20.12.1961 for a sum of Rs.3,000 and the plaintiff was paying the interest regularly. As the said document was getting time barred, the defendant wanted the plaintiff to renew the mortgage debt. Since the plaintiff did not have sufficient funds to repay the same, he executed the sale deed in respect of the suit properties with a right of repurchase. From the date of sale, the defendant is in possession and enjoyment of the same. Under the terms of the said sale deed dated 210. 1970 the plaintiff was given a right of repurchase of the suit properties within three years from the date of document. In case if he failed to exercise his right of repurchase, he would loose the said right. Subsequent to the expiry of the period of three years, the defendant is entitled to transfer the patta in his name. Since the plaintiff had failed to exercise the right of repurchase within the stipulated period of three years, the plaintiff has lost the said right. The transaction entered into between the parties under the document dated 210. 1970 is only a sale in favour of the defendant with a right of repurchase by the plaintiff and it is not a mortgage by conditional sale as contended by the plaintiff. 3. After elaborately considering the evidence available on record, the learned District Munsif, Hosur decreed the suit by his judgment and decree dated 20.11.1981 finding that the transaction entered into between the parties under the document dated 210. 1970 Ex.B-1 is only a mortgage by conditional sale and the plaintiff is entitled to redeem the suit mortgage. 4. The aggrieved defendant took up the matter on appeal in A.S.No.51 of 1982 on the file of the Additional Sub-Judge, Dharmapuri at Krishnagiri. The learned Additional Sub-Judge took a different view and interpreted the document Ex.B-1 that is a sale in favour of the defendant with a right of repurchase by the plaintiff, since the plaintiff has filed the suit long after the expiry of the period of three years mentioned in the said Ex.B-1., the suit is liable to be dismissed and accordingly allowed the appeal. As against the same, the present second appeal has been filed. .5. It is the contention of Mr.Nicholas, the learned counsel for the appellant that Ex.A-1 sale deed has been executed in favour of the defendant only for a sum of Rs.3,000 representing the mortgage debt due under Ex.B-2 dated 20.12.1961. The value of the property had been mentioned in Ex.B-1 as Rs. 12,500 and the consideration mentioned in the deed is only Rs.3,000. If it is a real sale transaction, then the consideration ought to have been the market value of the land. Further the restriction imposed with regard to the alienation as well as the change of ownership in the revenue records would probabilise the plea of the plaintiff that the transaction is only the mortgage by conditional sale. Further the indemnification of the defendant by the plaintiff to pay the amount from out of the other property as well as by the legal representatives of the plaintiff would also clearly establish the case of the plaintiff that the transaction is only a mortgage by conditional sale. 6. On the contrary, Mr.R.Subramanian, the learned counsel for the respondent contended that the transaction entered into by the parties under Ex.A-1 is only an absolute sale in favour of the defendant with a right of repurchase by the plaintiff. Even though the simple mortgage Ex.B-2 is in respect of three properties, Ex.A-1 is only in respect of one property alone and as such it cannot be said that the document had been executed only to discharge the mortgage debt. Under the said document Ex.A-1, the respondent has been given possession and enjoyment of the property mentioned therein absolutely and the restriction imposed to transfer the ownership in the revenue records is only postponement of transferring the ownership and this will not give any room to conclude that the defendant is not the owner of the land under Ex.A-1. Further the mere mentioning of the guideline value of the land by the registering authorities in the document cannot be a conclusive proof in respect of the valuation of the land. In order to interpret the document in respect of the right of the parties, the intention of the parties has to be decided first and from the above said events the transaction would amount to only a sale with a right of repurchase by the plaintiff. 7. In order to interpret the document in respect of the right of the parties, the intention of the parties has to be decided first and from the above said events the transaction would amount to only a sale with a right of repurchase by the plaintiff. 7. Both the counsel referred to number of reported judgments which may throw some light in deciding not only the intention of the parties but also the nature of transaction. Hence I would refer to those judgments first and then discuss the terms of the document in order to find out the intention of the parties and the nature of transaction. 8. Before discussing the various judgments, it may worthwhile to refer to Sec.58 of the Transfer of Property Act. Sec.58 (c) deals with the mortgage by conditional sale which is as follows: "Where the mortgagor ostensibly sells the mortgaged property. On condition that- on the default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or On condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale; provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale." 9. Coming to the judgments referred to by the counsel for the appellant, he relied upon a case reported in Pandit Chunchun Jha v. Sheikh Ebadat Ali, (1954) S.C.R. 174. where the learned Judges have held as follows: "Because of the welter of confusion caused by a multitude of conflicting decisions the legislature stepped in and amended Sec.58 (c) of the Transfer of Property Act. Unfortunately that brought in its train a further conflict of authority. But this much is now clear. If the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But the converse does not hold good, that is to say, the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. But the converse does not hold good, that is to say, the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effect or purports to effect the sale, then it is matter for construction which was meant. The Legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore 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; and if the conditions of Sec.58 (c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage.“ 10. In the judgment reported in Bhaskar v. Shrinarayan, A.I.R. 1960 S.C. 301. after referring to Sec.58 (c) of the Transfer of Property Act, the learned Judges held as follows: ”The Proviso to this clause was added by Act 20 of 1929. Prior to amendment there was a conflict of decisions on the question whether the condition contained in a separate deed could be taken into account in ascertaining whether a mortgage was intended by the principal deed. The legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale. 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 circumstances 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 circumstances 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 the 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 retransfer 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. As pointed out by the Judicial Committee of the Privy Council in Narasingerji Gyanagerji v. Parthasaradhi, 51 I.A. 305: A.I.R. 1924 P.C. 226 the circumstance that the transaction as phrased in the document is ostensibly a sale with a right of repurchase in the vendor, the appearance being laboriously maintained by the words of conveyance needlessly reiterating the description of an absolute interest or the right of repurchase 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 unambiguous they must in the light of the evidence of surrounding circumstances by given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of 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 ex; ting 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. 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 circumstances, but evidence as to subsequent conduct of the parties is inadmissible.“ 11. In the judgment reported in Bapuswami v. Pattay, A.I.R. 1966 S.C. 902: (1967)2 M.L.J. (S.C)8: (1967)2 An.W.R. (S.C.) 8: (1967)2 S.C.J. 812. also after referring to Sec.58 (c) of the Transfer of Property Act, the learned Judges discussed the issue as follows: ”The proviso to the clause was added by Act 20 of 1929. Prior to the amendment there was a conflict of decisions on the question whether the condition contained in a separate deed could be taken into account in ascertaining whether a mortgage was intended by the principle deed. The Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale. 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 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 a no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. The distinction between 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 distinction between 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 question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the document viewed in the light of surrounding circumstances. If the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of 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.“ 12. Coming to the judgments of our High Court in Ramachandraya v. Laxminarayana Rao, (1956)2 M.L.J. 565 . the learned Judge has held as follows: ”The terms of the document satisfy the requirements of the definition given in Sec.58(c). There is a condition that on payment the vendee should transfer the property to the vendor with absolute permanent rights and it is significant that the condition as to repurchase is embodied in the document and is not the subject of a separate transaction. Prima facie, there can be no reason to hold otherwise than to construe the document as a mortgage by conditional sale as defined in the Transfer of Property Act. Apart from that, there are several other circumstances relied on by the learned District Munsif, viz., that there was a prior relationship of debtor and creditor that the stamp papers for the docu ment were purchased in the name of the transferor and that the price was not as a result of bargaining but represented the exact amount of a preexisting debt due by the vendor to the vendee. Further, in the view of the learned District Munsif, on an appreciation of the evidence before him, the price of Rs.900 could not be said to be the proper price, though it cannot be said to be grossly inadequate.“ 13. In the judgment reported in Venkatarama Iyer v. Ranganathan Pillai, (1965)2 M.L.J. 480 it has been held as follows: ”The main circumstances to be borne in mind in regard to this transaction are the following. In the judgment reported in Venkatarama Iyer v. Ranganathan Pillai, (1965)2 M.L.J. 480 it has been held as follows: ”The main circumstances to be borne in mind in regard to this transaction are the following. For the entire amount of consideration of Rs.2,550 no amount by way of cash was paid. The entire amount represented prior debts under two simple mortgages and a promissory note. An effort was made deliberately to show in the document that the amount of consideration represented the amount of the prior debts after adjusting amounts already paid or after scaling down amounts by way of interest under Act IV of 1938. A conscious intention to show that the relationship of debtor and creditor subsisted between the two parties upto the time of the execution of the document is thus apparent. No attempt was made in the lower courts to show how the price of the property varied in the locality between 1924 and 1939, whether there was an upward trend or a downward trend.“ 14. In the judgment reported in Thoppaiyan v. Samuel Mark, 1978 T.L.N.J. 265. it has been held as follows: ”Therefore, the following things emerge; (1) the major consideration for the sale went towards the discharge of the earlier debts (ii) on payment of the sum of Rs.2,000 at any time within ten years the property was liable to be reconveyed and (iii) if such a reconveyance is not executed, then the sale will get confirmed. Under these circumstances the question would be, applying the various distinctive tests as between a mortgage by conditional sale and sale with an option to repurchase, whether the lower court was justified in holding the document to be a mortgage by conditional sale. Tested in the light of the ratio laid down in Venkatarama Iyer v. Ranganathan Pillai, (1965)2 M.L.J. 480 and Bapuswami v. Pattay, A.I.R. 1966 S.C. 902: (1967)2 M.L.J. (S.C.) 8: (1967)2 An.W.R. (S.C.) 8: (1967)2 S.C.J. 812 the document answers the description of only a mortgage by conditional sale. A Division Bench of this Court in Murugan v. Jayarama Pillai, (1974)1 M.L.J. 371 : A.I.R. 1974 Mad. 311, held that where sale would be become confirmed only on the vendor not exercising the right of repurchase, the document was held to be a mortgage by conditional sale. A Division Bench of this Court in Murugan v. Jayarama Pillai, (1974)1 M.L.J. 371 : A.I.R. 1974 Mad. 311, held that where sale would be become confirmed only on the vendor not exercising the right of repurchase, the document was held to be a mortgage by conditional sale. The various clauses extracted above would clearly point out that the document in question is not a sale with an option to repurchase, but only a mortgage by conditional sale, As rightly contended by the learned counsel for the respondent, the consideration of Rs.2,000 is grossly inadequate because the value of the property as found by the Lower Appellate Court is Rs.3,500. Then again, the same consideration of Rs.2,000 is to be paid for reconveyance at any time within ten years which would not be so in the case of a sale with an option to repurchase. Certainly the value of the property would have gone up within a period of 10 years and, normally, one would expect the value to be more. That is not the position here. Then again, the sale becomes confirmed only if the option to repurchase is not exercised. That would be clearly indicative of the fact that it is a mortgage by conditional sale as laid down in A.I.R. 1974 Mad. 311. Lastly, the patta continued in the name of the transferor.“ 15. In the judgment reported in Sokkuthai Ammal v. Pandiaraj, (1999)1 C.T.C. 200. it has been held as follows: ”Of course, in the case on hand, there is no mentioning about the payment of interest. But it should be borne in mind, that the possession was handed over to the defendants for their enjoyment for three years. But the question is as to whether the executant conveyed the property absolutely to the purchaser, on the date of the execution itself. The answer has already been given in the above discussion, that on the date of execution, the property has not been conveyed absolute, but the condition imposed was to make payment within three years, they could have the absolute right of enjoyment.“ In fact the learned Judge has referred to number of earlier decision and formulate the question in paragraph 13 of the judgment and after full discussion held that the document is only mortgage by conditional sale. 16. 16. The learned counsel for the respondent relied upon the judgment reported in Tamboli Ramanlal Motilal v. Chanchi Chimanlal Keshavlal, A.I.R. 1992 S.C. 1236 where the said document has been construed as conditional sale with option to repurchase in the following words: ”The property is sold conditionally for a period of five years and possession is handed over. At the same time, the document proceeds to stage “therefore, you and your heirs and legal representatives are hereafter entitled to use, enjoy and lease the said houses under the ownership right” It may be pertinent to note the discussion of the learned Judges made in the same judgment which is as follows: “The attendant circumstances could be looked into only to gather the intention. Such an intention, if explicitly expressed in the document itself, there is no scope for looking at the attendant circumstances. If therefore, there is no relationship of the debtor and the creditor, the question of it being a mortgage by conditional sale does not arise. In order to appreciate the respective contentions, it is necessary for us to analyse Ex.26 dated 112. 1950. Before that, it is necessary to utter a word of caution. Having regard to the nice distinctions between a mortgage by conditional sale and sale with an option to repurchase, one should be guided by the terms of the document alone without much help from the case law. Of course, cases could be referred for the purpose of interpreting a particular clause to gather the intention. Then again, it is also settled law that nomenclature of the document is hardly conclusive and much importance cannot be attached to the nomenclature alone since it is the real intention which requires to be gathered. It is from this angle we propose to analyse the document. No doubt the document is styled as a deed of conditional sale, but as we have just now observed, that is not conclusive of the matter.” 17. The learned counsel for the respondent further relied upon the judgment reported in Palani Gounder v. Thirumalai Gounder, (1981)2 M.L.J. 122. to contend that the earlier simple mortgage was in respect of three items and the present document under dispute is only in respect of one item of the property and hence the document is only a conditional sale with right of repurchase. to contend that the earlier simple mortgage was in respect of three items and the present document under dispute is only in respect of one item of the property and hence the document is only a conditional sale with right of repurchase. In this case also, before entering into discussion in respect of the terms of the document, the learned Judge has stated as follows: “The principles deducible from the above cases may be summarised as follows: The form of the document is inconclusive. The question whether there is a mortgage or sale is one of intention. If the condition for repurchase is embodied in the same document, there is a presumption that the document is a mortgage by conditional sale. It is for the party challenging this presumption to establish that there is a sale and not a mortgage. In order to find out whether the intention was to execute a mortgage or an out and out sale, it would be possible to refer to the surrounding circumstances for which oral evidence can be let in, but subsequent conduct would be inadmissible in evidence.” 18. From the above well laid principles, the ultimate question is, as pointed out in the judgment reported in the case Pandit Chunchun Jha v. Sheikh Ebadat Ali, 1954 S.C.R. 174 the decisions can be looked into only to have the help of interpreting the document. The ultimate conclusion is that the document has to be looked into in strict conformity with the terms containing therein. In order to ascertain the intention of the parties, wherever there is any ambiguity in the terms of the document, then the surrounding circumstances can also be looked into in order to ascertain the intention of the parties. In order to consider the transaction along with the intention of the parties, if the following factors are in existence, then the document can be considered as one of mortgage by conditional sale. .(i) The sale as well as the condition for re-purchase should be embodied in the same document, .(ii) If the sale consideration is that of the mortgage amount, which is lesser than the market value of the property; (iii) Whether the ownership had been transferred absolutely without any reservation. (iv) If the consideration for the reconveyance is the same, as mentioned in the sale deed. (iv) If the consideration for the reconveyance is the same, as mentioned in the sale deed. The disputed document is extracted hereunder: The specific recital in the above document is since the vendor was unable to discharge the mortgage debt of Rs.3,000 though the interest has been paid regularly till the date of document, he agreed to execute the sale deed pursuant to the panchayat for the mortgage debt of Rs.3,000. On execution of the sale deed, the mortgage debt is discharged and the mortgage deed had been returned to the vendor. The possession had been handed over to the vendee. With three years, the vendor is entitled to pay the said sum of Rs.3,000 and get the sale deed executed in his favour at his cost. The further conditions in the sale deed are the vendee has to pay the kist. From the date of said document and if the vendor did not exercise his option within three years, on the completion of the three years, the vendee and his heirs are entitled to enjoy the property with absolute right After the expiry of three years, the vendee is entitled to have the patta transferred in his name. The document also further mentions that the market value of the property is Rs. 12,500. .19. The trial court has held the document is a mortgage by conditional sale because the sale is to discharge the existing mortgage debt and the sale as well as the right of repurchase are embodied in the same document. The right of absolute enjoyment by the vendee as well as his heirs and the transfer of patta had been postponed for three years i.e., till the expiry of the right of repurchase by the plaintiff. Hence only in case if the plaintiff fails to exercise his right the vendee will have the absolute title Till then, he cannot derive an absolute title. The lower appellate court without considering any of these aspects, has allowed the appeal. The lower appellate court discusses the case in paragraph 10 of its judgment. The lower appellate court has taken only one circumstance to come to the conclusion that the said document is a conditional sale with a right of repurchase as it relates to only one property out of the three mentioned in the original simple mortgage. 20. The lower appellate court discusses the case in paragraph 10 of its judgment. The lower appellate court has taken only one circumstance to come to the conclusion that the said document is a conditional sale with a right of repurchase as it relates to only one property out of the three mentioned in the original simple mortgage. 20. I am of the view that the lower appellate court has not considered the terms of the document properly. There is no dispute that the document in question is only to discharge the earlier subsisting mortgage debt. When the interest had been regularly paid till the date of execution of the document; there is no need for the defendant to insist for the discharge of the mortgage. If the deed has been executed by way of sale only to discharge the subsisting mortgage then the defendant might not have agreed to convey the property after three years for the same consideration mentioned in the sale deed. The contention of the counsel for the respondent that there is no mention about the payment of interest is concerned, it is admitted that eight acres of property have been given possession to the defendant for enjoyment. It is for the defendant to establish that the income from out of the property may not be sufficient enough to meet the stipulated interest as well as the payment of the kist as directed in the sale deed. The plaintiffs case is that the income from out of the property is more than enough to meet the interest as well as the payment of kist and only on that understanding the defendant had agreed to pay the kist for the three years. In the absence of any evidence contra, the plaintiffs case can be accepted. .21. As already stated, the sale as well as the right of reconveyance is mentioned in the same document and the sale is only in respect of the existing mortgage debt. Under the said document the defendant has not been given the absolute ownership from the following recital; .From the above recital, it is clear that the defendant had not been given the absolute right under the disputed document Ex.A-1 dated 210. Under the said document the defendant has not been given the absolute ownership from the following recital; .From the above recital, it is clear that the defendant had not been given the absolute right under the disputed document Ex.A-1 dated 210. 70 (the original of which is marked as Ex.B-1) when the document does not confer the absolute right and restrict such absolute right till the period given to the plaintiff to repurchase the property expires, then it cannot be said that it is an absolute sale. One other circumstances is that the transfer of patta was also postponed until the expiry of the period of the right of repurchase. .22. So far as the value of the land is concerned, in the disputed document, the recital is that the present market value of the land is Rs. 12,500. The extent is also more than 8 acres of land, Though the defendant contended that the entire area is a rocky land, the report of the Advocate-Commissioner does not support such contention. In fact the report of the Advocate-Commissioner clearly reveals that barring an extent 50 cents, which rocky portion, the remaining extent are all cultivable land. Even assuming that the guideline value may not be the conclusive proof to identify the market value of the land, unless the document clearly recites as to why the consideration under the sale deed is mentioned less than the guideline value, there is nothing wrong in accepting the guideline value fixed by the registering authority as the market value of the land. Similarly there is nothing in the document or in the evidence to show that the entire extent of 8 acres conveyed under the document is rocky land and uncultivable. Hence the plea of the defendant cannot be accepted. It can be safely concluded that the document Ex.A-I had been executed by the plaintiff only to discharge the mortgage debt and not as an absolute sale deed with a right of repurchase. The trial court has rightly found that the disputed document is only a mortgage by conditional sale and the lower appellate court, without considering the recitals in the document properly, has reversed the findings of the trial court. 23. The judgment and decree of the lower appellate Court in A.S.No.51 of 1982 is set aside and the second appeal is allowed. Consequently the suit is decreed. 23. The judgment and decree of the lower appellate Court in A.S.No.51 of 1982 is set aside and the second appeal is allowed. Consequently the suit is decreed. However, there will be no order as to costs.