JUDGMENT - M.L. DUDHAT, J.:---This second appeal is preferred against the Judgment and decree passed by the District Judge, Ratnagiri, in Civil Appeal No. 122 of 1982 dated 7th December, 1985 whereby the District Judge allowed the appeal preferred by the original defendant No.1-present respondent No.1 and dismissed the suit filed by the original plaintiffs-present appellants.

2. The appellants in this case have filed the suit against the respondents being Regular Civil Suit No. 18 of 1980 for redemption of mortgage. The suit property is an agricultural land bearing Survey No. 135, Hissa No. 14 admeasuring about 2 acres and 15 gunthas and Survey No. 141, Hissa No. 12, admeasuring 0-17 gunthas situated at village Ayaini, Taluka Khed, District Ratnagiri. It was contended on behalf of the plaintiffs that on 20th March, 1961 vide Exh. 34 he mortgaged the suit property with defendant No. 1 for a consideration of Rs. 200/-. The plaintiffs further contended that though the said transaction was a mortgage, in the document which was registered it is averred that the suit property was sold by the plaintiffs to defendant No. 1 on 20th March, 1961 and there was a condition in the said document that the plaintiffs are entitled to get the suit property retransferred in their name on payment of amount of Rs. 200/- within ten years from the date of the execution of the said mortgage document. Failure on the part of defendant No. 1 to retransfer the said suit property in the name of the plaintiffs when they showed their willingness to pay the amount of Rs. 200/- by their notice dated 10th February, 1980, the plaintiffs have filed the suit on 25th April, 1980 being Civil Suit No. 18 of 1980 before the Civil Judge, J.D., Khed, Dist. Ratnagiri.

3. On the other hand, it was contended on behalf of the defendants that by the sale deed, Exh. 34 dated 20th March, 1961 the plaintiffs sold the said property absolutely to the defendants. However, taking into consideration the near relationship, the defendants in the said agreement also agreed to reconvey the said property in the name of the plaintiffs if they showed willingness to return the amount of Rs. 200/- within ten years from the execution of the sale deed, Exh. 34 i.e. on or before 21st March, 1971. According to the defendants since the said document was absolute sale and since the plaintiffs failed to repay the said amount mentioned in the sale deed on or before 20th March, 1971, the said sale has become absolute and, therefore, the suit as filed by the plaintiffs is liable to be dismissed.

4. The trial Court by its Judgment and decree dated 26th July, 1982 passed the decree of redemption in respect of the suit property in favour of the plaintiffs. Against the said decision of the trial Court the defendants preferred appeal being Civil Appeal No. 122 of 1982 before the District Judge, Ratnagiri and the District Judge, Ratnagiri, allowed the said appeal and reversed the judgment and decree passed by the trial Court and dismissed the suit filed by the plaintiffs-the present appellants. Against the aforesaid decision dated 7th December, 1985 given by the District Judge in Civil Appeal No. 122 of 1982 the plaintiffs have preferred this second appeal.

5. Shri Arun Palekar, learned Counsel for the appellants, mainly argued on two law points. Firstly, he contended that plaintiff No. 2 mother of plaintiff No. 1 expired on 31-10-1985 when the appeal before the lower Appellate Court was pending and admittedly the original defendants failed to bring heirs of the said Smt. Kashibai plaintiff No. 2 on record and the lower Appellate Court allowed the appeal on 7-12-1985 when in fact the appeal ought to have been dismissed as the same was abated. Secondly, Shri Palekar argued that since Exh. 34 incorporates the term of repurchase within 10 years, the lower Appellate Court ought to have taken into consideration these circumstances and ought to have come to the conclusion that the document at Exh. 34 was a mortgage a

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