G. C. GUPTA, J. ( 1 ) THIS appeal at the instance of the plaintiff is directed against an order dated 28-1-1987 passed by the learned 12th Court of the Additional District Judge, 24-Parganas in appeal affirming the judgment dated 12-7-1985 passed by the learned trial Court dismissing the suit. For convenience the appellant shall herein after be referred to as the plaintiff and the respondent as the defendant. ( 2 ) BRIEFLY stated the facts of the case are that by a deed of conveyance, Ext. A (6), dated 30-5-1978 the plaintiff absolutely conveyed 69 decimal of land at a sum of Rs. 10,000/- to the defendant. By an agreement dated 30-5-1978, Ext. 4 (B), the defendant, after recording that the plaintiff had sold the aforesaid land and had made over possession thereof, agreed to reconvey the land to the plaintiff provided the plaintiff paid the sum of Rs. 10,000/- within 30th Ashar, 1386 B. S. Both the deed of conveyance and the said agreement were executed on 15th Jaistha, 1385 B. S. which is equivalent to 30-5-1978. It is clear that a period of 13 months was granted by the defendant to the plaintiff to pay the said sum of Rs. 10,000/- whereupon the defendant undertook to reconvey the land without any let or hindrance to the plaintiff. ( 3 ) SIMILARLY by another deed of conveyance, Ext. A (5), dated 18th Jaistha, 1385 which is equivalent to 2-6-1978 the plaintiff absolutely conveyed 26 decimal of land to the defendant at a consideration of a sum of Rs. 4,500/ -. By an agreement executed on the same day the defendant, after recording that the plaintiff had sold the aforesaid land at a sum of Rs. 4,500/- and had made over possession therefore, agreed to recovey the said piece of land to the plaintiff provided the plaintiff paid the sum of Rs. 4,500/- on account of consideration and a sum of Rs. 733/- on account of costs within the period of 30th Ashar, 1386 without any let or hindrance. It appears that in this case also roughly a period of 13 months was granted by the defendant to the plaintiff for making payment of the said sum as a condition precedent for reconveyance of the land. 733/- on account of costs within the period of 30th Ashar, 1386 without any let or hindrance. It appears that in this case also roughly a period of 13 months was granted by the defendant to the plaintiff for making payment of the said sum as a condition precedent for reconveyance of the land. ( 4 ) BOTH the deeds of conveyance executed by the plaintiff in favour of the defendant contained inter alia that the land is sold at the highest prevailing price and that possession has been given. ( 5 ) IN the backdrop of the aforesaid facts and circumstances the plaintiff instituted Title Suit No. 98/1979 alleging that the aforesaid transaction between the parties was in substance a transaction of loan and not sale. He has further alleged that being in urgent need of money for maintaining his family and other necessities he approached the defendant for loan. The defendant wanted to avoid the provisions of law regarding the money lending business and he wanted to lend and advance money to the plaintiff on the basis of an ostensible deed of sale in his favour instead of a regular mortgage deed. He further alleged that he received only a sum of Rs. 10,000/- whereas the consideration shown according to the two deeds of conveyance is Rs. 14,500/ -. He alleged that he is in possession of the land. His further case is that he requested the defendant times without number to reconvey the land by executing appropriate deeds of conveyance upon receiving a sum of Rs. 10,000/ -. According to him, the transaction is a simple loan transaction in which the plaintiff is the borrower and the defendant is the lender and the two deeds of sale are security for repayment of the sum of Rs. 10,000/ -. On the aforesaid basis the plaintiff claimed relief under sections 36, 37, 37a and 38 of the Bengal Money Lenders Act and prayed for a decree for taking accounts and fixing liability of the plaintiff etc. The suit appears to have been filed on 4-7-1979. ( 6 ) ON or about 27-5-1981 the plaintiff appears to have moved an application for amendment of the plaint for bringing on record that the consideration shown in the deeds of conveyance is Rs. 14,500/- whereas he actually received Rs. 10,000/ -. Therefore, balance amount of Rs. The suit appears to have been filed on 4-7-1979. ( 6 ) ON or about 27-5-1981 the plaintiff appears to have moved an application for amendment of the plaint for bringing on record that the consideration shown in the deeds of conveyance is Rs. 14,500/- whereas he actually received Rs. 10,000/ -. Therefore, balance amount of Rs. 4,500/-represents interest and further that after institution of the suit the plaintiff was further compelled to execute two other ostensible sale deeds for payment of further interest to the defendant. This was the first amendment to the plaint which appears to have been allowed by an order, dated 15-7-1981. ( 7 ) AN application for amending the plaint for the second time was made on or about 22-3-83 seeking to supply the dates of two further ostensible sale deeds being 28-7-1978 and 22-8-1978 which, according to the plaintiff, he was compelled to execute in order to make payment of further interest to the defendant. In his first application for amendment he alleged that the two further ostensible deeds of sale for payment of interest have been made after the institution of the suit. The dates however supplied under the second application for amendment appear to be prior to the institution of the suit. ( 8 ) A third application for amendment of the plaint appears to have been made on or about 5-9-1983 alleging that the market value of the property in question was Rs. 20,000/- more or less per bigha at the time when the deeds of conveyance being Ext. A (6) and A (5) were executed and that the consideration mentioned in the said deeds of conveyance was extremely low compared to the market value. Further allegation was sought to be inserted that after the filing of the suit the plaintiff had been forcibly dispossessed of the suit property by the defendant. ( 9 ) THE defendant in his written statement and the additional written statements filed from time to time consequent to amendment of the plaint is denied all material allegations contained in the plaint. The defendant has however admitted execution of the deeds of agreement for reconveyance of the land being Exts. 4 (B) and 4 (A) and has contended that the said agreements were independent documents and had no connection with the transaction of sale. The defendant has however admitted execution of the deeds of agreement for reconveyance of the land being Exts. 4 (B) and 4 (A) and has contended that the said agreements were independent documents and had no connection with the transaction of sale. It is further contended that time was of the essence of the contract in each of the said agreements for reconveyance of land and the plaintiff having failed to perform his part of the obligation, he is not entitled to claim any relief. ( 10 ) THE learned trial Court dismissed the suit on the basis of the following findings :- (A) The plaintiff has not adduced any evidence from which it can be concluded that he was ever dispossessed of the suit property. (b) The plaintiff had no possession after execution of the disputed deeds of sale and that the defendant is in possession of the suit property on the basis of the disputed deeds from the time, the same were executed by the plaintiff. (c) The two further deeds of conveyance dated 28-7-1978 and 22-8-1978 being Exts. 1 (E) and 1 (F) are not in favour of the defendant and that the same were executed in favour of the defendant's mother Smt. Sashibala Sardar, who is not even a party to the suit. (d) Oral evidence in regard to payment of interest or agreement for payment of interest are not at all inconsonance with the case made out in the plaint. (e) There is no trace of any pre-existence debt. (f) There is no ground for holding that the suit property was sold at a shockingly low price. On the contrary Exts. A (2) and A (4) go to show that the price paid for the suit property at the relevant time was quite fair and reasonable. (g) Evidence and materials on record are not sufficient to conclude that the alleged transaction was in substance a loan. ( 11 ) THE learned Appellate Court dismissed the appeal holding inter alia as follows :- (I)HE has disbelieved the evidence of P. W. 1 that the deeds of conveyance dated 26-7-1978 and 22-8-1978 executed by the plaintiff in favour of Smt. Sashibala Sardar relate to payment of interest by the plaintiff to the defendant. (ii) There is no mention of any prior debt of the plaintiff at the time of the transaction on 30-5-1978 and 2-6-1978. (ii) There is no mention of any prior debt of the plaintiff at the time of the transaction on 30-5-1978 and 2-6-1978. (iii) In paragraph 1 of the plaintiff is alleged that the plaintiff required money for the maintenance of his family whereas his evidence is that he has enough to spare and that he is a well-to-do man. (iv) The plaint does not show that there was an existing loan to be repaid by the plaintiff. (v) The case of the plaintiff is that he was forcibly dispossessed from the suit property after filing of the suit whereas his evidence is that he was dispossessed from the suit property in the last leg of Falgoon 13, 1385 B. S. corresponding to February-March, 1978 whereas the suit was filed on 4-7-1979 corresponding to Ashar 13, 1386 B. S. There is no evidence that the plaintiff was in possession of the suit property after execution of the deeds of sale. (vi) Market value of the property represented by Exts. A (6) and A (5) at the relevant time does not appear to be more than Rs. 14,500/ -. (vii) The appellant has failed to show that any interest was talked over at all at the time of execution of the Exts. A (5) And A (6 ). (viii) The suit transaction did not constitute a loan in substance. ( 12 ) IT would appear from the aforesaid analysis that both the Courts below have recorded concurrent finding to the effect that (a) the transaction is not a loan in substance; (b) that the price mentioned in deeds of conveyance is fair; (c) that there was no agreement to pay any interest; (d) that there was no pre-existent debt and that the plaintiff's case that he was dispossessed during the pendency of the suit is not correct. ( 13 ) MR. Roy Chowdhury appearing in support of the appeal contended that the fact that agreement to recovery the land was executed on the same day when the deed of conveyance was executed furnished ample proof of the fact that the transaction is in substance a loan and that the Courts below did not apply the true test in determining the question as to whether the transaction in substance is loan. ( 14 ) I shall now consider the correctness of this submission made by Mr. Roy Chowdhury. ( 14 ) I shall now consider the correctness of this submission made by Mr. Roy Chowdhury. ( 15 ) THEIR Lordships of the Privy Council in the case of Bhagwan Sahai v. Bhagwan Din and Ors. reported in ILR 12 Allahabad 387 held that "a document purporting to be one of sale, though it is accompanied by a contract reserving to the vendor a right to repurchase the property sold, on repaying the purchase money within a certain time, is not on that account to be construed as if it were a mortgage. " ( 16 ) THEIR Lordships quoted with approval from the decision of Lord Chancellor in the case of Alderson v. White as follows :-"these deeds taken together do not on the face of them constitute a mortgage; and the only question is whether, assuming the transaction to be a legal one, it has been shown to be in truth such as in the view of a Court of Equity ought to be treated as a mortgage transaction. The rule of law on this subject is one dictated by common sense that prima facie an absolute conveyance containing nothing to show that the relation of debtor and creditor is to exist between the parties does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase. " ( 17 ) THE aforesaid passage from the decision of Lord Chancellor in Alderson v. White was also quoted by Their Lordships of the Supreme Court in the case of Chunchun Jha v. Ebadat Ali, reported in AIR 1954 SC 345 . Their Lordships further held that "because of the welter of confusion caused by a multitude of conflicting decisions, the legislature stepped in and amended section 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. 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. " ( 18 ) THE amended and unamended section 58 (c) of the Transfer of Property Act are reporduced herein below :-@original section 58 (c) Amended section 58 (c)where the mortgagor ostensibly Where the mortgagor ostensibly sells the mortgaged property- sells the mortgaged property-on condition that on default of On condition that on default of payment of the mortgage-money payment of the mortgage-money on a on a certain date the sale shall certain date the sale shall become become absolute or absolute, or on condition that on such payment On condition that on such payment being made the sale become void, or being made the sale shall become void, or on condition that on such payment On condition that on such payment being made the buyer shall transfer being made the buyer shall transfer the property to the seller, the the property to the seller. transaction is called a mortgage by The transfer is called a mortgage conditional sale and the mortgagee, by conditional sale and the a mortgagee by conditional sale. 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. @ ( 19 ) FROM a comparision of the original and the amended provision it is clear that addition of the proviso by the amending Act has set the controversy at rest. ( 20 ) A different view was taken in the peculiar facts and circumstances of the case by a Division Bench of this Court in the pre-amendment case of Shazadi Bibi v. Sheikh Jamal and Ors. reported in 17 CWN 1053, the facts whereof would appear from the following passage :-"we find first of all that the consideration was not adequate : Only 100 rupees was paid for a property which on the same date was settled at a rent of 12 rupees per annum which at 20 years purchase would bring up the price to Rs. 240. 240. The second test whether the vendee was put in immediate possession also favours the mortgage theory for there was no change of possession at all, the sale and the lease being executed in the same majlis. Then the rental of 12 rupees per annum was the usual rate of interest for 100 rupees. The parties to the document are Mahomedans amongst whom the receiving of interest is prohibited and various subterfuges are resorted to, one of them being the Byebilwara. One of the tests applied by Mohamedan lawyers for determining whether a document is a kobala or a Byebilwara is that a short term indicates a kobala and a long term a security. See Ghose on Mortgage, 3rd Edn. p-121. In this case the term is indefinitely long indicating that an absolute sale was not meant. " ( 21 ) REFERRING to the aforesaid Division Bench judgment another Division Bench of this Court in the case of Manindranath Bose v. Narendra Krishna Mitra, reported in ILR 1956 (1) Cal. 59 = (1980) 2 CLJ 70 held at page 63 as follows :-"just as the transaction cannot be held to be a mortgage by conditional sale if it contravenes the proviso to section 58 (c) of the Act, similarly it cannot amount to a mortgage in law if is hit by section 59. There is, however, no such statutory requirement in the matter of a loan and there the rule of substance prevails over form and a transaction which is in form not a loan-for example, a purported sale with an agreement of resale or reconveyance as in the case before us-but is so in substance will be held to be a loan and would certainly come within the definition of 'loan' as contained in section 1 (12) of the Bengal Money Lenders Act. " ( 22 ) SECTION 2 (12) of the Bengal Money Lenders Act defines loan as follows :-"2 (12)-'loan' means an advance, whether of money or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include- (a)* * * * (b)* * * * (c) a loan taken or advanced by the Central Government or any State Government or by any local authority in West Bengal; (d) a loan advanced before or after the commencement of this Act- (i) by a bank; or (ii) by a co-operative life insurance society insurance company, life assurance Company, Life Insurance Corporation of India, mutual insurance company, provident insurance society or from provident fund; (e) an advance made on the basis of a negotiable instrument as defined in the Negotiable Instrument Act, 1881 other than a promissory, note (26 of 1881 ). (f) Omitted by W. B. Money Lender Amendment Act (Act IV of 1981 ). (g)* * * * (h) a loan made to or by the Administrator-General and Official Trustee of West Bengal or the Commissioner of Wakfs or the Official Assignee or the Official Receiver of the High Court in Calcutta; (i) a loan or debenture in respect of which dealings are listed on any Stock Exchange. " ( 23 ) THE Division Bench in the aforesaid decision further laid down the following tests for ascertaining the true nature of transaction :-"in the circumstances of this case the true value of the property at the time of the proposed sale on October 7, 1942 and the question of possession, immediately after that date, appear to us to be of considerable importance and we do not think that they can or ought to be lightly brushed aside. We feel strongly that without an investigation into those two questions it is hardly proper to express any definite opinion on the real nature of the disputed transaction. " ( 24 ) THE aforesaid rule of substance and the tests laid down thereunder for the purpose of finding out whether the transaction is a loan in substances is now holding the field and has been followed in a number of cases including Banku Behari Chandra v. Smt. Kalyani Devi reported in 70 CWN 139 and Sk. Abdul Gaffar v. Sudha Kanta Roy and Anr. reported in 88 CWN 915. Abdul Gaffar v. Sudha Kanta Roy and Anr. reported in 88 CWN 915. The same tests were also applied in a case before the Supreme Court in the case of Uday Chand Dutta v. Saibal Sen reported in AIR 1988 SC 367 which are as follows :-"it was submitted by Mr. Sinha that one of the main indications which would show whether the transaction in question was one of loan and the document of sale was executed by way of security or that the transaction was an out and out sale of the property is whether the consideration appearing in the document appears to be too low. If the consideration is too law, it would indicate that the transaction could not have been one of sale. The other indication of a sale would be that the possession after the transaction would pass to the vendee and not be retained with the vendor in the absence of special circumstances. As far as the valuation of the property is concerned, the trial Court after considering the evidence of instances led before it came to a definite conclusion that, at the time when the document of sale was admittedly executed, it could not be said that the valuation of the property at Rs. 9,000/- was too low. As against this, all that Mr. Sinha could point out was that the plaintiff in his evidence has stated that the valuation of the property must be more than Rs. 50,000/ -. In our view, a statement of this kind is unworthy of any reliance, particularly when instances are available including the instances of sale by the plaintiff himself. The other piece of evidence on which Mr. Sinha wanted to rely was the evidence of Gora Chand Ghosh, who is an advocate. He merely stated that in his opinion no one would sell property like the one in suit at a sum of Rs. 9,000/ -. In the first place, Gora Chand Ghosh was a nephew of the plaintiff and hence his evidence must be taken with certain degree of caution. In the second place, he did not qualify as an expert on valuation of immovable property so that an opinion of this kind given by him could be of any evidentiary value showing the correct valuation. In the second place, he did not qualify as an expert on valuation of immovable property so that an opinion of this kind given by him could be of any evidentiary value showing the correct valuation. In the absence of such qualification a general opinion of this type is worthless, and all the more so as there is a concrete evidence of sale instances which has been relied upon by the learned trial Judge. The point that the property was worth much more than Rs. 9,000/- does not appear to have been seriously argued before the Division Bench of the High Court at all because no such argument has been considered at all by the Bench and there is no statement in the grounds of appeal, specifically recording that such an argument was advance in the High Court but the Division Bench failed to deal with it. In our view, the conclusions of the trial Court in this regard are perfectly justified. " ( 25 ) APPLYING the tests discussed above both the Courts below have given to a concurrent finding that the transaction between the parties was that of an outright sale. In the premises the contention of Mr. Roy Chowdhury that the learned Court below failed to apply the correct legal test is in my view without any substance. The tests discussed hereinabove have been applied by both the Courts below as would be evident from the scrutiny of the judgments made herein above. ( 26 ) MR. Roy Chowdhury has further contended that the learned Court below refused to consider the material evidence on record. He has not, however, been able to draw my attention to any particular piece of evidence which was not considered by the learned Court below. In support of his contention Mr. Roy Chowdhury has relied upon the case of Ishwar Dass Jain v. Sohan Lal, reported in (2000) 1 SCC 434 which is an authority for the proposition that the High Court can interfere with the findings of fact (a) when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion; (b) where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. ( 27 ) MY attention has not been drawn to any finding which has been arrived at by the appellate Court by placing reliance on a piece of inadmissible evidence. ( 28 ) MR. Roy Chowdhury then placed reliance on the case of State of Rajasthan v. Harphool Singh, reported in (2000) 5 SCC 652 which is an authority for the proposition that findings based on surmise and conjecture, perverse fingings not based on legally acceptable evidence and which are patently contrary to law declared by Supreme Court can be interfered with in second appeal. ( 29 ) MR. Roy Chowdhury then placed reliance on the case of Rajappa Hanamantha Ranoji v. Mahadev Channabasappa and Ors. reported in (2000) 6 SCC 120 which is an authority for the proposition that the High Court is entitled to interfer where the findings of first appellate Court were not based on a proper appreciation of the evidence, but in substance the conclusion of the High Court was that the lower Court decision was based on no evidence and was perverse. ( 30 ) I am unable to hold that the finding of the appellate Court are not based on proper appreciation of evidence nor am I prepared to hold that the decision of the Court below is based on no evidence or surmise or conjcture or that the same is perverse. ( 31 ) LASTLY, Mr. Roy Chowdhury relied on the decision in the case of Budhwanti and Another v. Gulab Chand Prasad reported in AIR 1987 SC 1484 which is an authority for the proposition that the High Court is justified in setting aside the finding of the lower appellate Court if the findings is based on baseless assumption and wrong principles of law. In my view, neither is the judgment of the Court below based on assumption or baseless assumption nor did the Court below apply any wrong principles of law. In the premises, the appeal fails. There shall, however, be no order as to costs. Later. If an urgent xerox certified copy is applied for, the office is directed to deliver the same within on week after the x-mas vacation on usued under-takings. Appeal dismissed.