(1) SA. 553.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 553 OF 2009 1] Vitthal Tukaram Hase, Age : 75 years, Occu.: Agri., R/o : Mhaladevi (Rumbodi), Tq. Akole, Dist. Ahmednagar 2] Vijay Vitthal Hase (deceased) Through his legal heirs 2A] Sachin Vijay Hase, Age : 22 years, Occu.: Business, R/o : Behind Laxmanshet, Mohane, Tq. Kalyan, Dist. Thane 2B] Nita Vijay Jadhav, Age : 25 years, Occu.: Household, R/o Railway Police Quarter, Building No.21, Room no.50, Pantnagar, Ghatkopar (East), Mumbai – 75. 2C] Anita Santosh Awari, Age : 21 years, Occu.: Household, R/o : Behind J.K. Chemical, Laxminagar, Ghanekar Chawl, Pokharan Road, Thane-1 2D] Hema Vijay Hase, Occu.: Household, R/o C/o Sachin Vijay Hase, Mohane, Tq. Kalyan, Dist. Thane .. Appellants VERSUS Eknath Bhikaji Hase, Age : 70 years, Occu.: Agri., R/o : Mhaladevi (Rumbhodi), Tq. Akole, Dist. Ahmednagar .. Respondent (2) SA. 553.2009 AND CIVIL APPLICATION NO. 7794 OF 2009 IN SECOND APPEAL NO. 553 OF 2009 Vitthal Tukaram Hase and ors. .. Applicants VERSUS Eknath Bhikaji Hase .. Respondent Mr. A.S. Bajaj, Advocate for the appellants- applicants Mr. P.R. Katneshwarkar, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 10TH AUGUST, 2009 ORAL ORDER:- 1] This second appeal is filed against the judgment and order passed by the Adhoc District Judge-I, Sangamner, Dist. Ahmednagar in Regular Civil Appeal no. 983 of 2000. The lower appellate Court, allowed the appeal of the respondent, dismissing the appellants’ suit for declaration of ownership and decreed the counter-claim of the respondent, for redemption of the mortgage. 2] The facts leading to the litigation are as under:- . The respondent executed the sale deed exhibit 25 with condition to repurchase in 10 years time the suit land. He said that though the market value of the suit land at that time was Rs.40,000/-, he had (3) SA. 553.2009 received Rs.30,000/- from the appellant and that he would repay the amount of Rs.30000/- within 10 years and get the land reconveyed to him. He further admitted that he had delivered the possession of the suit land to the appellants. 10 years period expired in May, 1992. The appellants, then filed suit in 1996, for declaration that owing to the extinguishment of the respondent’s right to redeem, they had become the owners of the suit land and for perpetual injunction. In the alternative, the appellants also claimed that in case the Court decides that it was a transaction of mortgage and if the redemption was allowed, they were entitled to Rs. 30000/- which they had spent on improvement of the land. As against this, the respondent filed a counter-claim, and claimed redemption of the suit land and offered the amount of mortgage. The respondent denied the allegation that the appellants had made improvement in the land and had spent Rs.30000/- on such improvement. . The learned trial Court held that the suit transaction was transaction of sale with condition to repurchase, and it was not a mortgage by conditional sale. In view of this finding, the trial Court did not record it’s finding as to whether the appellants had spent Rs.30000/- on improvement of the suit land etc. The trial Court decreed the suit and dismissed the counter claim. However, the lower Appellate Court held that the transaction was mortgage with (4) SA. 553.2009 redemption clause. It also held that the respondent had 30 years limitation for getting redemption of the suit land. The lower appellate Court, did not dwell on the possibility, which necessarily arose in view of this finding that the transaction was a mortgage; that there was need of recording of finding as to whether the appellants had made improvement in the suit land and had spent Rs.30000/-. The lower appellate Court, ought to have remanded the case back to the trial Court for recording of that finding which it had avoided for the reason mentioned above. 3] There are two questions before me:(i) Whether the suit transaction was a mortgage or sale with condition to repurchase? (ii) Whether the case should be remanded to the trial Court for getting a finding of fact, (Whether the appellants had made improvement in the suit land and whether they had spent Rs. 30000/- on such improvement?) recorded. . The lower appellate Court, recorded the finding that the transaction was a mortgage, but while coming to such conclusion the lower appellate Court did not mention the reasons for coming to such conclusion. The learned Judge of the lower appellate Court merely mentioned the submissions made on behalf of the respondent. He also mentioned various case- laws on which the respondent placed reliance. Nonetheless, the findings of the lower appellate Court cannot be found incorrect. The document in question, on the face of it, is a deed of mortgage (5) SA. 553.2009 and it appears to be a copy-book example of the transaction of mortgage by conditional sale. All the ingredients of such mortgage are present in the document in question. . Section 58(c) of the Transfer of Property, which defines mortgage by conditional sale, reads as under:- “Section 58(c) Mortgage by conditional sale - Where the mortgagor ostensibly sells the mortgaged property- on condition that on default of payment of the mortgage- money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the 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. 4] The appellants tried to contend that it was not a mortgage by conditional sale but it was a transaction of sale with condition to repurchase. But since, the purported condition is included in the document itself, the above mentioned proviso would apply to this case. By no stretch of imagination thus, the transaction looks a transaction of sale with condition to repurchase. (6) SA. 553.2009 5] The learned Advocate appearing for the appellants however, placed reliance on the well-known judgment of the Supreme Court in the case of Santosh Hajari V. Purushottam Tiwari (Deceased) by LRs. Reported in (2001) 3 SCC 179. He contended that the lower appellate Court’s judgment does not reflect conscious application of mind, and recording of findings submitted by reasons on all the issues that arose in this appeal. Although his criticism of the lower appellate Court’s judgment is somewhat justifiable, I do not think it necessary to interfere in it, because the finding recorded by the lower appellate Court is an obvious one. As discussed above, the trial Court was in gross error in holding that the transaction was not a transaction of mortgage by conditional sale. . But the lower appellate Court certainly committed an error in not remanding the matter back to the trial Court for deciding the question of fact between the parties as to whether the appellants had made any improvement in the suit land and whether they had spent Rs.30000/- on it. There is a natural corollary to this assertion, when the respondent asserted that the transaction was also of usufructuary mortgage and since the appellants were enjoying the fruits of the suit land, the respondent mortgagor was not liable to pay the cost of mortgage etc. These questions of facts, in my view, are required to be decided, even though, I am holding (7) SA. 553.2009 that the respondent had succeeded in claiming redemption of the suit land. 6] [I] Appeal is partly allowed. [II] The order of the lower appellate Court in terms of clause (4),(5),(6) and (7) is confirmed. Dismissal of the suit is partly set aside. The case is remanded back to the trial Court, for deciding the issue nos.3 and 6. There shall be no order as to costs. [III] The effect of this order shall remain in abeyance for a period of eight weeks, so that appellants can consider their position. 7] In view of the order passed in Second Appeal no. 553 of 2009, Civil Application no. 7794 of 2009 seeking stay, does not survive and the same stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp