. This Second Appeal arises out of judgment rendered by learned Second Additional District Judge, Jalna, in appeal bearing Regular Civil Appeal No.114 of 1984. By the impugned judgment, the learned Additional District Judge was pleased to set aside dismissal of suit for redemption of mortgage and granted decree for redemption.

2. The appellants are legal representatives of deceased Vasantrao Neb, who was original defendant No.1. The respondents are legal representatives of deceased Shankarrao Neb. They are original plaintiff and defendant Nos.2 to 6. Deceased Shankarrao Neb was the owner of suit house property. He executed a document dated 03.02.1953, in favour of deceased defendant Vasantrao, whereby the suit-house property was mortgaged for 7000/- Osmaniya Sikke. The mortgage deed is styled as "Rahan Bil Kabja", and is written in Urdu script. It was agreed between the parties that the suit property would be given in possession of Vasantrao Neb. It was agreed that from day of execution of the mortgage deed he would continue to remain in possession till the amount was repaid. It was further agreed that there shall be no rent for the house property, which comprised of a shop, and the amount advanced to Shankarrao Neb will not be charged with any interest. They agreed that the mortgage amount will be repaid within period of five years by Shankarrao Neb and on his failure to pay the said amount within stipulated period, it will be deemed that the suit house property is sold and mortgagee i.e. Vasantrao Neb will be treated as owner thereof.

3. Respondent No.1 filed suit for redemption of mortgage alleging that he was entitled to redeem the mortgage on repayment of the mortgage amount to the mortgagee i.e. original defendant No.1 - Vasant Neb. He asserted that deceased Vasant refused to accept the amount and redeem the mortgage. According to deceased defendant No.1 Vasant, the plaintiff’s father never made any attempt for redemption of mortgage and therefore the suit was barred by limitation. He asserted that the document was conditional sale. The condition regarding repayment within five years was not fulfilled by the plaintiff’s father and hence the ownership rights were transferred as per terms of the document. He asserted that he became owner of the house property in question, after period of stipulated five years and as such the suit for redemption of mortgage is barred by limitation. Hence, he sought dismissal of the suit.

4. The parties went to trial over certain issues struck below Exh.16. The learned Trial Judge held that the defendant No.1 - deceased Vasant Neb became owner of the house property, because the transaction was conditional sale. The Trial Court held that the document itself was to be treated as absolute sale from the date of breach of condition to repay the amount within stipulated period of five years. Hence, the suit was dismissed. The first Appellate Court reversed the dismissal of the suit. The first Appellate Court held that the suit house property was mortgaged and the condition incorporated in the document created a clog on mortgage. The first Appellate Court held that such condition is void in the eye of law. The first Appellate Court, therefore, decreed the suit.

5. The Second Appeal was admitted on ground Nos.1 to 6 and ground No.8 shown in the appeal memo. Same questions may be repeated if these grounds are reproduced. Therefore, in order to avoid repetition and to ensure that the substantial questions raised in the appeal do not overlap, I deem it proper to articulate the substantial questions of law in the following way :

(1) Whether in the facts and circumstances of the present case, document dated 03.02.1953 styled as "Rahan Bil Kabja" (mortgage with possession) is a mortgage or that it is a conditional sale and the appellants become owner due to failure of the plaintiff’s father to repay