1. The appeal is filed against judgment and decree of R.C.S. No. 159/1987 and also against judgment and decree of R.C.A. No. 818/2000. The suit was filed by present respondent for redemption of mortgage in the Court of Civil Judge, Senior Division, Akole and it is decided in his favour. The decision of the Trial Court is confirmed by the First Appellate Court – District Judge, Sangamner. Both the sides are heard.

2. It is the case of respondent/plaintiff that Survey No. 73 situated at Virgaon, Tahsil Akole, District Ahmednagar, admeasuring 2.26 Hectors belongs to him and it was mortgaged by him to the appellant/defendant by the registered document of mortgage by conditional sale on 27.2.1969. It is contended that plaintiff was in need of money for the marriage of his daughter and so, he mortgaged the land for the consideration of Rs. 5,000/-. It is contended that in the year 1987 he requested the defendant to give back the land by accepting mortgage money, but defendant refused to do so. It is the case of plaintiff that the consideration was taken as loan amount by him and land was given by way of security and so, he is entitled to relief of redemption.

3. The defendant filed written statement and he denied that the transaction was of mortgage. It is the case of defendant that it was out and out sale. It is contended that there was no relationship of creditor and debtor between him and plaintiff. It is contended that right was given to the plaintiff to repurchase the land within three years mentioned in the document and after that no right is left with plaintiff. It is contended that the suit is time barred. It is his case that he has spent amount of Rs. ten to twelve thousand for improvement of the land and so, the plaintiff is falsely contending that the transaction was of mortgage. During the pendency of the suit, plaintiff/mortgagee died and his legal heirs prosecuted the matter. They did not give oral evidence and they relied only on the contents of the document. The defendant examined himself.

4. This Court has formulated substantial questions of law vide order dated 28.10.2005, which are as under:-

"[i] Whether the document (Exh-34) is a mortgage by conditional sale or it is a sale with condition to repurchase the property?

[ii] Whether the finding of both the courts below that there was admission of the present appellant about his status as a mortgagee can be said to be perverse, when in proof of such admission, copy of the plaint in earlier suit was not purchased ?"

5. Both the sides have cited some reported cases on the point of interpretation and use of section 58 (c) of Transfer of Property Act ('T.P. Act' for short). Section 58 (c) of T.P. Act runs as under:-

"58. Mortgage by conditional sale.- (c)

Where the mortgagor ostensibly sells the mortgaged property --

on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or

on condition that on such payment being made the sale shall become void, or

on condition that on such payment being made the buyer shall transfer the property to the seller,

the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale."

6. In the case reported as 2011 (3) Mh.L.J. 1 [Raj Kishore Vs. Prem Singh and Ors.], the Apex Court has discussed the provision of section 58 (c) of T.P. Act and it is laid down that to constitute mortgage by conditional sale, it is necessary that the condition mentioned in this section is embodied in the document that purports to effect the sale. It is observed that the requirement stipulated by the proviso which admits of no exceptions. There cannot be dispute over this proposition. In the case reported as AIR 1960 SUPREME COURT 301 [Bhaskar Wman Joshi Vs. Shrinarayan Rambilas Agarwal] similar observations are