Dharmaji Shankar Shinde vs Rajaram Shripad Joshi (Dead) Through ...

2. Facts giving rise to these appeals are that the respondents- plaintiffs filed a suit for redemption of the suit property bearing S.No.147 present G.No.750 admeasuring 2 Hectares 18 Are situated in village Kudal, Jawli taluka and district Satara. Case of the respondents-plaintiffs is that the suit property was mortgaged by their father Shripad Joshi on 28.07.1967 in favour of Shankar Shinde who is the predecessor-in-interest of the appellants- defendants for Rs.2500/-. The said deed (Ex.P-73) is a deed of “mortgage by conditional sale” with a condition that if the amount is not repaid within a period of five years from the date of execution of the deed, then the same would be treated and construed as an absolute sale between the parties conferring absolute right of ownership on Shankar Shinde and his legal representatives. As per the recitals in the document, the possession of the suit property was also handed over to Shankar Shinde on the date of execution of the deed. The respondents-plaintiffs further averred that on 26.07.1972, their father had paid an amount of Rs.800/- to Shankar Shinde and to that effect Ex.P-69-receipt was executed. Shripad Joshi died in the year 1973 and the respondents-plaintiffs succeeded to his estate. Further case of the respondents-plaintiffs is that in spite of repeated request to the appellants-defendants for 2 redemption of the suit property and delivery of possession of the property, they failed to receive the money and had not handed over the possession of the property. After issuance of legal notice dated 19.02.1980, the plaintiffs filed the suit for redemption of the mortgage.

3. The appellants-defendants resisted the suit contending that the transaction between their father-Shankar Shinde and the father of the respondents-plaintiffs-Shripad Joshi was a sale with condition to repurchase within a stipulated period of five years. Case of defendants is that since Shripad Joshi, father of the respondents-plaintiffs failed to repay the money within the stipulated period of five years and failed to take any step to get the property reconveyed to them, after the period of five years as per the terms and conditions of Ex.P-73, father of the appellants- defendants Shankar Shinde has become the absolute owner of the suit property and the plaintiffs have no right, title or interest in the suit property.

5. In appeal, the first Appellate Court set aside the judgment of the trial court by holding that Ex.P-73 is a “mortgage by conditional sale” and not an absolute sale deed or a sale with a condition to repurchase. The first Appellate Court held that payment of Rs.800/- by Shripad Joshi has been proved and that the respondents have proved the execution of Ex.P-69-receipt by examining Prabhakar (PW-2) who is the son of the scribe of Ex.P- 69-receipt. The first Appellate Court held that Ex.P-73 was a “mortgage with conditional sale” as per proviso to clause (c) of Section 58 of the Transfer of Property Act and that the respondents are entitled to redeem the mortgage subject to the payment of balance amount of Rs.1700/-. Being aggrieved by the judgment of 4 the first Appellate Court, the appellants preferred second appeal before the High Court which came to be dismissed by the impugned judgment.

28. In the result, the impugned judgment of the High Court in Second Appeal No.887 of 2003 dated 15.11.2006 is set aside and these appeals are allowed. The Suit No.100/89 filed by the respondents-plaintiffs is dismissed and the judgment of the trial court shall stand restored. No order as to cost.

April 23, 2019.