Vanchalabai Raghunath/Ithape (D) by LR vs. Shankarrao Baburao Bhilare (D) by LRS & Ors A I R 2013 SC 2924
The Appellant is the legal heir of the original Plaintiff/widow who was admittedly the owner of the suit property.
Plaintiff’s case is that a deed was executed by Vanchalabai Raghunath Ithape (the original Plaintiff-now deceased) in favour of Defendant No. 1 Shankarrao Baburao Bhilare (the original Defendant/Respondent No. 1) on 12-07-1967 for a consideration of Rs. 3,000/-, by which the suit land along with 4 annas share in the mango trees was transferred to Defendant No. 1 and possession of the same was handed over, with a specific stipulation to the effect that the land was sold on the condition that after receiving Rs. 3,000/- in lump sum within 5 years before end of any Falgun month, by the Defendant, the land was to be returned to the Plaintiff. The Plaintiff’s case is that it was a mortgage transaction and the land was to be returned by the original Defendant after receiving the said consideration of Rs. 3,000/- within 5 years.
He denied of having any relationship of mortgagee and mortgagor between him and the Plaintiff. According to him, the Plaintiff had sold the suit property to him as per the said sale deed, but only as a concession the period of 5 years was mentioned in the deed to reconvey the said suit property and since there was no repayment in 5 years no re-conveyance could be claimed.
Admittedly, the Plaintiff filed the suit claiming a decree for redemption of the suit property. The trial court decreed the suit by passing a decree of redemption. The first appellate court reversed the findings recorded by the trial court and allowed the appeal and set aside the judgment and decree of the trial court. As against that, the Plaintiff preferred the second appeal. The High Court did not interfere with the findings of fact recorded by the first appellate court.
The Court observed that the document in question has been described as Sale Deed transferring the land along with the fixtures and possession was handed over to the Defendant
From a perusal of the aforesaid provisions especially, section 58(c) it is evidently clear that for the purpose of bringing a transaction within the meaning of ‘mortgage by conditional sale’, the first condition is that the mortgagor ostensibly sells the mortgaged property on the condition that on such payment being made, the buyer shall transfer the property to the seller. Although there is a presumption that the transaction is a mortgage by conditional sale in cases where the whole transaction is in one document, but merely because of a term incorporated in the same document it cannot always be accepted that the transaction agreed between the parties was a mortgage transaction, referred the case in Williams vs. Owen 1840 5 My. and Cr. 303 : English Reports 41 (Chancery) 386.
The Court held that the instant case, the trial court committed grave error in construing the document and erroneously held that the transaction is mortgage and hence, the Plaintiff is entitled to decree of redemption.
By reading the documents as a whole, it is found that there is a debt and the relationship between the parties is that of a debtor and a creditor. This is a vital point to determine the nature of the transaction.
The Court, therefore, held that the document was not a mortgage by conditional sale, rather the document was transfer by way of sale with a condition to repurchase.
