1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.374 OF 2009 Mahadeo Bhau Tawar (Deceased) .... Appellants through LRs Maruti Mahadeo Tawar & Ors. Vs. Prabhakar Digambar Kulkarni .... Respondents (Deceased) through Legal Heirs Prasad Kulkarni & Ors. Mr.R.A. Thorat & P.B. Gujar, Advocates for Appellants Mr.Machindra Deshmukh, Advocate for respondent no.4. CORAM : Smt. R.P. SondurBaldota, J. Date : 9th November, 2009 P.C. : 1. This Second Appeal arises out of the judgment and order dated 20th April 2009 passed by the District Court, Sangli in Regular Civil Appeal No.161 of 2002. By the impugned judgment and order, the appellate court upset the decision dated 23rd January 2009 of the trial Court by setting the same aside. The trial Court had dismissed the suit for redemption of mortgage holding that the transaction between the parties was not of mortgage by conditional sale but was of the sale with the condition of repurchase. The appellate Court set aside the finding and held that the transaction between the parties was of mortgage by conditional sale and decreed the suit. 2 2. The appellants are heirs and legal representatives of original defendant no.1- Mahadeo Bhau Tawar, who along with respondent no.6, (original defendant no.2) challenged the suit document dated 23rd June 1983. Respondents no.1 to 5 are the heirs and legal representatives of one Prabhakar Kulkarni who was the executor of the document. The document executed was in favour of deceased Mahadeo, as well as, respondent no.6. It has been the case of respondents no.1 to 5 that Prabhakar had mortgaged the suit property to Mahadeo and respondent no.6 Shivaji, in repayment of loan of Rs.15,000/- taken by him for the purpose of repairing the house. The mortgage was to be redeemed within a period of six years from the date of the mortgage. On execution of the document, the property which is an agricultural land was handed over to Mahadeo and Shivaji. They have cultivated the same since then. The 7/12 extracts in respect of the property were also mutated to show the names of Mahadeo and Shivaji as the owners. The name of Prabhakar was shown in the column of other rights. The appellants defended the suit contending that the real transaction between the parties was not of mortgage but was of sale with condition of repurchase. Respondent no.6 however filed his written statement admitting that the transaction reflected in the document dated 23rd June 1983 was that of mortgage and not of sale with the condition of repurchase. 3 3. Mr.Thorat,the learned counsel for the appellants submits that the trial Court had correctly interpreted the document to hold that it was for transaction of sale. He points out the observations of the trial Court that the deed does not create expressly or by implication, relationship of debtor and creditor between the parties. The deed further does not make any provision in regard to the interest payable for the loan taken by the transferee. There is also no charge created over the suit property. The trial Court noted that the tax and revenue payable in respect of the suit property has been paid by the transferee. Therefore according to the trial Court the document indicated that the transaction between the parties was not of a mortgage with conditional sale but was of sale with the condition of repurchase of the property. 4. The appellate Court considered the contents of the document and noticed that the title of the document was “mortgage with conditional sale”. The document gave specific reason for the transaction as need of the transferee of a sum of Rs.15,000/- for carrying out repairs to his house. Then the deed contains specific term that the property is mortgaged to the transferee in a sum of Rs.15,000/- and that the mortgage was to be redeemed within a period of six years. The appellate Court considered the entire tenor of the document, the terminology used therein, its title, its purpose and the nature of the 4 document to arrive at the conclusion that the transaction contained therein is that of mortgage by conditional sale. 5. In the considered opinion of this Court, no fault can be found with the decision of the appellate Court in interpreting the suit document. The contention raised on behalf of the appellants that the document does not reflect the relationship of debtor and creditor and does not make provision for interest cannot be accepted for the reason firstly that the contents of the document sufficiently indicate both. The purpose stating the need of money, the specific clause of mortgage and provision for period of redemption can only imply the relationship of debtor and creditor and not that of vendor and purchaser. As regards the interest, Mahadeo and after his death the appellants have cultivated the land and enjoyed its proceeds. Since Mahadeo was to cultivate the land since the date of execution of the document, the implied provision of interest was made therein. The court must also take note of the fact that the document is not prepared by an Advocate. It has been prepared by the parties themselves. Therefore it cannot be expected to be a perfect document taking care of all possible legal intricacies. However, the relationship of the debtor and creditor is clearly implied therein, there being nothing whatsoever mentioned in the document to indicate the transaction of sale. The trial Court erred in not taking into consideration 5 whatever was available in the documents and in considering only what was missing therefrom. Apparently what had weighed with the trial Court was that the suit for redemption came to be filed not within a period of six years, but much later. However that factor alone cannot decide the nature of transaction between the parties. The transaction has to be inferred from the interpretation of the document as a whole and not by subsequent conduct of the parties. 6. Mr.Thorat then refers to the observation of the appellate court in its judgment as regards an admission given by respondent no.6 about the nature of the transaction reflected in the document and submits that the appellate Court ought not to have taken into account the admission given in the written statement of respondent no.6 without affording an opportunity to the appellants to cross examine respondent no.6. He pointed out that respondent no.6 has not examined himself in the matter nor have respondents no.1 to 5 examined him. With that, the appellants have been deprived of an opportunity to cross- examine respondent no.6. The appellants themselves could have summoned respondent no.6 as a witness in the matter. However, for reasons not far to seek they have not exercised the option. Therefore reliance upon the admission of respondent no.6 in his written statement by the appellate court cannot be said to be either incorrect or not in accordance with law. In any case, 6 perusal of the impugned judgment shows that the observations of the appellate Court as regards admission of respondent no.6 in the written statement are only by way of supporting material and not as the basis for the judgment. 7. In all the above circumstances, there is no need to interfere with the impugned judgment and order. There is no substantial question of law arising for consideration of the Court. Hence, the Second Appeal is dismissed. 8. In view of dismissal of the Second Appeal, the Civil Application No.1270 of 2009 does not survive, the same is accordingly disposed of. 9. Mr.Thorat, the learned counsel for the appellants makes an application for stay of the impugned judgment and order. Mr.Deshmukh, the learned counsel for respondents no.1 to 5 states that though these respondents have filed an application for execution of the decree for obtaining the possession, he will not take possession of the suit property for a period of four weeks from today. (Smt.R.P. SondurBaldota,J.)