SOPAN (DEAD) THROUGH HIS L.R. versus SYED NABI

Citation: [2019] 9 S.C.R. 969 · Decided: 16-07-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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SOPAN (DEAD) THROUGH HIS L.R.
v.
SYED NABI
(Civil Appeal No.3506 of 2010)
JULY 16, 2019
[R. BANUMATHI AND A.S. BOPANNA, JJ.]
Transfer of Property Act, 1882 – s.58(c) – Mortgage by
conditional sale – Respondent-plaintiff received a sum of
Rs.5000/- from appellant-defendant, however, same was construed
as the consideration for the suit property and a registered sale deed
dated 10.12.1968 (Exh.23) was executed in favour of the
defendant – A separate agreement dated 10.12.1968  (Exh.24) was
also entered into between the parties where the plaintiff agreed to
repay the said amount and secure reconveyance of the property –
Another agreement was entered into on 29.08.1969 (Exh.14/1)
under which plaintiff agreed that he had received additional amount
of Rs.2,224/-, hence total amount of Rs.7,224/-  – Suit was filed
seeking redemption of mortgage and recovery of the possession of
the suit property – Plaintiff claimed that he was prepared to repay
the amount so as to secure back the property and, in that regard,
construing the transaction as a mortgage – Trial court decreed the
suit – Lower appellate court on reappreciation of the evidence set
aside the judgment and decree of the trial court – However, High
Court decreed the suit in favour of plaintiff – On appeal, held: On
perusal of three documents namely, sale deed dated 10.12.1968
(Exh.23) agreements dated 10.12.1968 (Exh.24) and 29.08.1969
(Exh.14/1), it is clear that sale deed dated 10.12.1968 did not
disclose that  the transaction is one of mortgage or that of a
conditional sale – Agreement dated 10.12.1968 (Exh.24) can only
be treated an agreement where the defendant had agreed to
reconvey the property subject to the repayment being made as
provided thereunder – Further, agreement dated 29.08.1969
(Exh.14/1) disclose that plaintiff did not repay Rs.5000/-and
instead received a further sum of Rs.2,224/-, thus in all taking the
financial assistance treated as sale consideration to Rs.7,224/- – If
the reconveyance as agreed under agreement dated 10.12.1968
[2019]  9 S.C.R. 969
   969
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SUPREME COURT REPORTS
[2019] 9 S.C.R.
(Exh.24) was to be effected the said amount was to be repaid,
failing which the right of reconveyance would be forfeited and sale
deed would become absolute after which even the right of
reconveyance would not be available – Admittedly the said amount
was not repaid by plaintiff – In that background the document
cannot be considered as a mortgage by conditional sale – Since the
amount was not repaid the defendant had acquired absolute right
to the property – In the circumstance, the suit seeking redemption
was not sustainable.
Allowing the appeal, the Court
HELD: 1. In so far as the legal position relating to the
manner in which the document is to be construed, this Court in
the case of Dharmaji Shankar Shinde & Ors. vs.  Rajaram Sripad
Joshi (D) Lrs. and Ors.  had considered the entire conspectus of
the  provision contained in Section 58(c) of the Transfer of
Property Act, 1882 with reference even to the decisions relied
upon by the counsel for the plaintiff and had arrived at the
conclusion that a sale with a mere condition of retransfer is not a
mortgage.  It is further held therein that keeping in view the
proviso to Section 58(c) if the sale and agreement to repurchase
are embodied in separate documents then the transactions
cannot be a mortgage by conditional sale irrespective of whether
the documents are the contemporaneously executed.  It is
further held therein that even in the case of a single document
the real character of the transaction is to be ascertained from the
provisions of the deed viewed in the light of the surrounding
circumstances and intention of the parties. [Para 7] [976-D-E]
2.  Keeping in view the enunciation of the legal position, in
the instant case admittedly the claim of the plaintiff is based on
the reliance placed on a contemporaneous document at Exh.24
(agreement dated 10.12.1968).   Hence at the outset, it is evident
that the case of the plaintiff cannot overcome the rigour of law to
term it as a mortgage by conditional sale.  That apart even if the
nature of the transaction is taken note of and in that context if
the sale dated 10th December, 1968 (Exh.23)  is carefully perused,
it not only does not indicate any clause to demonstrate it as a
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mortgage but, on the other hand, refers to the sale consideration,
the manner in which it was received and the plaintiff 

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