LexVANCHALABAI RAGHUNATH ITHAPE (D) BY LR versus SHANKARRAO BABURAO BHILARE (D) BY LRS. AND OTHERS
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(2013) 8 S C.R 1028
VANCHALABAI RAGHUNATH ITHAPE {D) BY LR
v.
SHANKARRAO BABURAO BHILARE (D) BY LRS. AND
OTHERS
(Civil Appeal No. 4833 of 2013)
JULY 1, 2013
[P. SATHASIVAM AND M.Y. EQBAL, JJ.]
Deeds and Documents - Mortgage by conditional sale
C or transfer by way of sale with a condition to repurchase -
Document described as sale deed transferring land belonging
to plaintiff-appellant alongwith the fixtures and also handing
over possession to defendant-respondent - Nature of - Held:
For purpose of bringing a transaction within meaning of
o 'mortgage by conditional sale', the first condition is that the
mortgagor ostensibly sells the mortgaged property on the
condition that on such payment being made, the buyer shall
transfer the property to the seller - Although there is a
presumption that transaction is a mortgage by conditional
E sale in cases where the whole transaction is in one document,
but merely because of a term incorporated in the same
document it cannot always be accepted that the transaction
agreed between the parties was a mortgage transaction - In
the instant case, the trial court committed grave error in
F construing the document as a mortgage and in holding that
plaintiff-appellant was entitled to decree of redemption - The
alleged sale document was executed in the year 1967 subject
to stipulation/condition that on receiving the sale amount of
Rs. 3, 0001- within five years the land was to be returned to the
G plaintiff-vendor - A/so after transfer of the land, the defendant-
respondent came in possession and used & enjoyed the
property as an absolute owner - It was only after 11 years that
the plaintiff-appellant filed suit alleging that the property was
mortgaged in favour of defendant/respondent with a condition
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1028
VANCHALABAIRAGHUNATHITHAPE(D)BYLR.v.SHANKARRAO
1029
BABUR.A.O BHILARE (0) BY LRS.
to reconvey the land - Evidently, the transaction in question
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was an absolute sale with a condition of repurchase - But the
plaintiff failed to get the land reconveyed within stipulated
period and thus lost her remedy - Transfer of Property Act,
1882 - s.58(a) & (c).
The plaintiff-appellant owned certain landed property.
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On 12.7.1967, she executed a deed (Ex.31) in respect of
the said land in favour of defendant No.1-respondent no.1
for a consideration of Rs.3,000/-, by which the land along
with 4 annas share in the mango trees was transferred
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to defendant No.1 and possession of the same was also
handed over, with a specific stipulation to the effect that
the land was sold on the condition that after receiving
Rs.3,000/- in lumpsum within 5 years before end of any
Falgun month by the defendant, the land was to be
returned to the plaintiff. The plaintiff's case was that it was
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a mortgage transaction and the land was to be returned
by the original defendant after receiving the said
consideration of Rs.3,000/- within 5 years. On 20.7.1979,
plaintiff issued notice calling upon the defendant to re-
convey the property after accepting the amount. Upon
non-compliance, plaintiff filed suit for redemption of the
property against defendant No.1 .. The defendant No.1
filed written statement contending that the transaction in
question (Exh.31) was not a mortgage transaction, but
was that of outright sale. According to him, the plaintiff
had sold the suit property to him as per the said sale
deed, but only as a concession the period of 5 years was
mentioned in the deed to re-convey the said suit property
and since there was no repayment in 5 years no re-
conveyance could be claimed. The trial court, however,
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did not consider the deed to be a sale transaction and
held it to be a mortgage transaction by conditional sale.
The trial court also answered the issue "whether
defendant No.1 proved that time was the essence of the
said contract ... " in negative. The suit of the plaintiff for
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1030 SUPREME COURT REPORTS
[2013] 8 S.C.R.
A redemption was accordingly decreed by the trial court
declaring that the plaintiff was entitled to redeem the suit
property after paying the amount of Rs.3,000/- to the
defendant. The first appellate court set aside the decree
of the trial court holding that the transaction in question
B was an absolute sale with a condition of repurchase, but
the plaintiff failed to get the land re-conveyed within
stipulated period. The High Court did not interfere with
the findings of fact recordedExcerpt shown. Read the full judgment & AI analysis in Lexace.