(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 162 OF 2005 Smt. Shevantabai Bhikaji Sanvatsarkar, Age : 75 years, Occupation : Agriculture, .. Appellant R/o. Shinganapur, (Original Taluka : Kopargaon, defendant District : Ahmednagar. no.1 ) versus 1. Prakash Sitaram Sanvatsarkar, Age : 50 years, Occupation : Agriculture, R/o. Shinganapur, Taluka : Kopargaon, District : Ahmednagar. 2. Narayan Sitaram Sanvatsarkar, Age : 60 years, Occupation : Agriculture, R/o. Shinganapur, Taluka : Kopargaon, District : Ahmednagar. 3. Tukaram Sitaram Sanvatsarkar, Age : 58 years, Occupation : Agriculture, R/o. Shinganapur, Taluka : Kopargaon, District : Ahmednagar. (2) 4. Uttam Sitaram Sanvatsarkar, Age : 55 years, Occupation : Agriculture, R/o. Shinganapur, Taluka : Kopargaon, District : Ahmednagar. .. Respondents (No.1 - Original 5. Salubai Bhika Kurhe, plaintiff Age : 69 years, & Occupation : Agriculture, Nos.2 to 5 - R/o. Pimpalkhute, Original Taluka : Yeola, defendants ) District : Nasik. ....................... Mr. N.R. Bhavar, Advocate, for the appellant. Mr. Milind Patil, Advocate, for respondent nos.1 to 4. Respondent no.5 served (Absent). ........................ CORAM : K.U. CHANDIWAL, J. DATE : 6TH APRIL 2010 COURT'S ORDER : 1. Heard the learned Counsel for the respective parties, extensively. (3) 2. The concurrent findings against the defendant are questioned in the Second Appeal. 3. The two substantial questions of law, Mr. Bhavar, learned Counsel appearing for the appellant, desires to formulate are : (1) The consideration of the document will take away the spirit incorporated in Section 58 of the Transfer of Property Act, 1882, and (2) The document being a sale with condition to re-purchase, any action in filing suit should be within 3 years, applicability of Article 63A of the Limitation Act, by the courts, warrants interference. 4. There is no controversy about plaintiff entering into the transaction vide Exhibit 43 (certified copy at Exhibit 48) whereby the agricultural fields were conveyed based on a conditional sale deed for a period of 10 years, dated 16th June 1976. According to the learned Counsel for the appellant, the re-purchase by calculation should have been up to 16-6-1986 and consequently, after 16-6-1986, the appellant (defendant) (4) becomes full fledged owner of the property. 5. "Mortgage", "mortgagor", "mortgagee", "mortgage- money" and "mortgage-deed" are defined in Section 58 of the Transfer of Property Act, 1882. Section 58(c) deals with "Mortgage by conditional sale", as under : " 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. " The proviso indeed incorporate that no such transaction shall be deemed to be a mortgage unless condition is embodied (5) in the document which effects or purports to effect the sale. The construction of Exhibit 43, the sale deed, in the opening line, starts with "conditional sale deed". In the body, it incorporates to re-convey/redeem the same within 10 years, as in lieu of having handed over possession, allowing taking yield, the amount of Rs. 5,000/- was received by the plaintiff. 6. The construction of the document does not allow any room of interpretation otherwise than what is indicated in Section 58(c) of the Transfer of Property Act, referred above. 7. The learned Counsel appearing for the appellant took recourse to the judgment in the matter of Nana Tukaram Jaikar Vs. Sonabai and others (AIR 1982 Bombay 437). In the said judgment, this court, based on the recitals in the sale deed or the document, held that it does not create expressly or by implication the relation of a debtor and creditor, nor the amount is paid by the transferee to the transferermade on the charge of the land. There is no provision in the deed in regard to interest. The possession of the land is handed over to the transferee. Municipal taxes are made payable by the transferee. 8. The Apex Court in the matter of Santakumari and others Vs. Lakshmi Amma Janaki Amma (D) by L.Rs. and others (2000 AIR SCW 3285), while dealing with an identical (6) situation, in paragraph 12, categorically indicated that the nature and recitals in the document spell out the purport of the same and it will not be freely available to be interpreted. The stipulation, as reconvey the property, according to the Lordships of the Apex Court, appears to be a mortgage by a conditional sale. 9. Taking these aspects into consideration, I do not find that there is any error on the part of both the courts, in reading the document Exhibit 43. Secondly, the applicability of Article 63A of the Limitation Act is in tune with the settled law, more particularly, the document being attracted by terminology incorporated in Section 58 of the Transfer of Property Act. The passing reference about time essence of contract will not be available as there is no rigidity that has been surfaced. 10. The Second Appeal sans merit and it is accordingly dismissed. However, the interim relief, granted on 1st March 2005, is extended till 30th June 2010. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa162