VISHWANATH DADOBA KARALE versus PRISA SHANTAPPA UPADHYE (D) TH. LRS

Citation: [2008] 4 S.C.R. 993 · Decided: 13-03-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
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Judgment (excerpt)

[2008) 4 S.C.R. 993 
VISHWANATH DADOBA KARALE 
v. 
PRISA SHANTAPPA UPADHYE (D) TH. LRS .. 
(Civil Appeal No. 1958 of 2008) 
MARCH 13, 2008. 
· (S,B. SINHA AND V.S. SIRPURKAR, JJ.) 
Transfer of Property Act, 1882: 
B 
s.58(c) - Mortgage by conditional sale - Deed executed 
selling immovable property for five years with stipulation to C 
re-purchase the same for the same amount within five years -
HELD: Having regard to terms of the deed, High Court rightly 
held that. transaction evidenced a mortgage and not sale -
Suit for redemption of mortgage was maintainable which was 
rightly decreed by High Court. 
D 
The predecessor-in-interest of the respondent 
executed a conditional deed of sale of the suit property 
for Rs.500/-for five years with a stipulation to re-purchase 
the same by paying back Rs.500/- at any time within the 
said period of five years. When he offered the said amount E 
of Rs.500/- to the appellant, the latter did not accept it 
stating that he had acquired an absolute title to the 
property. The landowner filed a suit for redemption of 
mortgage against the appellant. The trial court and the 
first appellate court dismissed the suit, but the High Court F 
in second appeal decreed the suit holding the deed to be 
a conditional mortgage. 
In the instant appeal it was contended for the 
defendant-appellant that the High Court erred in setting G 
aside the concurrent finding of both the courts below that 
the transaction was that of a sale and not mortgage. 
Dismissing the appeal, the Court 
993 
H. 
994 
SUPREME COURT REPORTS 
[2008] 4 S.C.R. 
A 
HELD: 1.1 An answer to the question as to whether 
the transaction is a sale or a mortgage not only would 
depend upon the language used in the deed, but also the 
circumstances attending thereto. In the instant case, the 
plaintiff in his deposition categorically stated that his 
B father had taken by way of loan a sum of Rs.500/- from 
the appellant. There are also evidences on record to 
show that the market price of the land was higher than 
Rs. 500/- at the relevant point of time. [para 6-7] [997-A, BJ 
.... 
c 
1.2 When an absolute transfer of property is made, it 
cannot be limited to a period. In the insta.nt case, the 
transaction shows that the appellant was to have title in 
the property and to remain in possession thereof only for 
a period of five years. The plaintiff/respondent was entitled 
D 
to tender the said amount of Rs.500/- not only at the expiry 
of the said period but even prior thereto. On tender of such 
document, the appeUant was required to execute a deed 
.. 
of reconveyance in favour of the plaintiff/respondent. 
Such a transaction cannot be construed to be a 
transaction of sale. The terms of the sale and condition of 
E repurchase were recorded in one document. Having 
regard to the terms of the transaction the High Court was 
correct in its opinion that the transaction evidenced a 
mortgage and not a sale. A suit for redemption of 
F 
mortgage, therefore, was maintainable. A suit for 
redemption is essentially a suit for recovery of 
possession. [para 8-12] [997-C, D; 998-D; 1002-C] 
PL. Bapuswami vs. N. Pattay Gounder (1966) 2 SCR 
918; Tu/si and Ors. Vs. Chandrika Prasad and Ors. (2006) 8 
G SCC 322; Manjabai Krishna Patil (0) by Lrs. Vs. Raghunath 
Revaji Patil & Anr. (2007) 3 SCALE 331 - relied on. 
Bishwanath Prasad Singh vs. Rajendra Prasad and Anr. 
(2006) 4 sec 432 - distinguished. 
H 
Tamboli Raman/al Motilal (Dead) by Lrs. Vs. Ghanchi 
I e 
VISHWANATH DADOBA KARALE v. PRISA SHANTAPPA 
995 
UPADHYE (D) TH. LRS. [S.8. SINHA, J.] 
Chimanlal Kesha via/ (Dead) by Lrs. And Anr. 1993 Supp,(1) 
A 
sec 295 - held inapplicable. 
CIVILAPPELLATE JURISDICTION : Civil Appeal No. 1958 
of 2008 
From the final Judgment and Order dated 17.08.2006 of 8 
the High Court of Judicature at Bombay in Second Appeal No. 
525 of 2001. 
Shivaji M. Jadhav for the Appellant. 
Vinay Navare and Abha R. Sharma for the Respondents. c 
The Judgment of the Court was delivered by 
S.8. SINHA, J. Leave granted. 
1. Parisa Shantappa Upadhye, the predecessor in interest 
D 
of the respondent, was the owner of the land. He entered into a 
. transaction with the appellant herein on or about 7 .10.1969. The 
~ 
deed was titled as Conditional Sale Deed of immovable property. 
The land, in question, was situate in the town of Kolhapur in a 
market area. A shed was constructed thereupon. The relevant 
terms of the said document evidencing the transaction in 
E
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