important point
In the case of mortgage by way of conditional sale the debt subsists and a right to redeem remains with the debtor.

judgment

S.B. Sinha, J. —

Leave granted.

1.Parisa Shantappa Upadhye, the predecessor in interest of the respondent, was the owner of the land. He entered into a transaction with the appellant herein on or about 7.10.1969. The deed was titled as Conditional Sale Deed of immovable property. The land, in question, was situate in the town of Kolhapur in a market area. A shed was constructed thereupon. The relevant terms of the said document evidencing the transaction in question are as under:-

“2.The property described above is sold by me for a period of five years and you are put into possession thereof. Consideration of Rs. 500/- for the said sale is paid by you to me and I have received the same and there is no grievance with respect to the said receipt.

3.You are entitled to enjoy the possession of the said property till the said period and get the property transferred in your name and pay the municipal assessment with respect thereto.

4.In case the above said amount of Rs. 500/- is repaid to you by the end of the above said period or prior thereto, you will accept the same and restore the said property in my possession and execute the sale deed in my favour as per the agreement between us.

5.At the end of the period mentioned hereinabove or also before the expiry of the said period at any time if we return the sale deed amount of Rs. 500/-, after accepting the said amount you have to return the possession in our favour and to execute sale deed in our favour. This is agreed between us.”

2.The plaintiff/respondent offered to return the said amount of Rs. 500/- to the appellant/defendant. It was not accepted on the premise that he had acquired an absolute title thereto. A suit for redemption of mortgage was filed on or about 24.2.1981. The issue which arose for consideration before the courts below was as to whether the transaction in question contemplated conditional sale with an option to purchase or it was a conditional mortgage.

3.The High Court by reason of the impugned judgment upon construction of the said deed dated 7.10.1969 (Exhibit 40) opined that the transaction constituted a mortgage and not an out and out sale. Notice was taken of the fact that only one document was executed.

4.Mr. Shivaji M. Jadhav, learned counsel appearing on behalf of the appellant would submit that the High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration the concurrent finding of both the learned Trial Judge as also the first appellate court that the transaction was that of a sale and not a mortgage. The High Court, it was urged, committed a serious error in re-appreciating the evidence in a second appeal.

5.Mr. Vinay Navare, the learned counsel appearing on behalf of the respondent, on the other hand, would support the judgment contending that not only that a sale for a fixed period is not envisaged under the Transfer of Property Act, the amount of loan could have been returned even before the expiry of a period of five years.

6.An answer to the question as to whether the transaction is a sale or a mortgage not only would depend upon the language used in the deed, but also the circumstances attending thereto. The plaintiff in his deposition categorically stated that his father had taken by way of a loan a sum of Rs. 500/- from the appellants.

7.There are also evidences on record to show that the market price of the land was higher than Rs. 500/- at the relevant point of time.

8.When an absolute transfer of property is made, it cannot be limited to a period. The transaction shows that the appellant was to have title in the property for a period of five years. Appellant was to remain in possession thereof only for the said period. Plaintiff/respondent was entitled to tender the said amount of Rs. 500/- not only at the expiry of the said period but even prior thereto. On tender of such document, the appellant was required to execute a deed of reconveyance in favour of the plaintiff/respondent.

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