Case: SUBHASH MALHARI MUNESHWAR AND ANR Vs. ARVINDE ANANDRAO KADAM AND ANR

2. The case of the appellants-plaintiff(s) is that an amount of Rs.3,000/- was borrowed from the respondent and in security the property was mortgaged under Exhibit P-33 (15.02.1975) with condition that if the amount is paid on or before 15.03.1980, the property can be redeemed. The appellants plaintiff(s) filed the suit for redemption of the mortgage alleging that the document (Exhibit P-33) was a mortgage by conditional sale and not a sale with condition for reconveyance.3. The Trial Court dismissed the suit holding that the document Exhibit P-33 was not a mortgage with conditional sale; but a sale deed with condition for repurchase. The first Appellate Court reversed the judgment of the Trial Court holding that the Exhibit P-33 is a mortgage by conditional sale as defined under Section 58(c) of Transfer of Property Act and not a sale with condition to repurchase. The High Court in Second Appeal, reversed the judgment of the First Appellate Court by holding that Exhibit P-33 was a sale with condition to repurchase and not a mortgage by conditional sale.

Reasoning: 7. We have considered the rival contentions and perused the impugned judgment and materials on record.8. To determine the nature of the document whether it is a mortgage by conditional sale or a sale deed with condition for reconveyance, the recitals in the document and the intention of the parties are relevant. The Trial Court extracted the relevant clause in Exhibit P-33 and pointed out that it was a sale deed with condition for repurchase.9. As pointed out by the High Court, the recitals in the document that transfer of interest with vesting of absolute rights upon the respondents are clear indications that the document is only a sale with condition for repurchase. As pointed out by the High Court as well as the Trial Court, the clauses in the deed clearly indicate that it is a sale deed with condition to repurchase and not a sale with conditional mortgage as stipulated under Section 58(c) of the Property of Transfer Act. As rightly pointed out by the learned counsel appearing for the respondent-defendant(s) that Exhibit P-33 document does not contain any recital as to enjoyment of the property in lieu of the interest payable on the amount. Any oral evidence adduced in this regard cannot be looked into in view of the prohibition under Section 92 of the Indian Evidence Act.10. Admittedly pursuant to Exhibit P-33 possession was handed over to the respondent(s) vesting on them the absolute right to enjoy the property. Exhibit P-33 does not show that the amount of Rs.3,000/- was taken as a debt or loan; nor does the document show that the income from the land was to be appropriated towards the interest by the respondent(s). We do not find any ground warranting interference with impugned judgment.