The central legal point established in the judgment is the interpretation of a deed to determine whether it constitutes a mortgage by way of conditional sale or a sale with a condition of repurchase.

N.M. Jamdar, J.

1. This Second Appeal is filed by the Original Defendant challenging the judgment and decree passed by the Civil Judge, Junior Division, Wai and the dismissal of the Appeal filed by the Appellant by the District Judge, Satara. The Civil Judge decreed the suit holding that the Respondent-Plaintiff was entitled to redemption of mortgage, re-conveyance and possession of the suit property on his depositing the mortgage money of Rs. 19,850/-. This judgment and decree has been confirmed by the District Judge.

2. The suit land is an agricultural land admeasuring 4 acres 3 gunthas bearing Gut No. 90 situated at Village Parkhandi, Taluka Wai, District Satara. The genesis of the dispute is a document dated 1 March 1972. The Respondent filed a Suit bearing No. 254 of 1983 contending that by a mortgage dated 1 March 1972, an amount of Rs. 19,850/- was received as a loan from the Appellant and since the relation between the parties were good, the Appellant was put in possession. In this mortgage deed it was agreed that, upon repayment of the loan amount, the Appellant would hand over the possession of the property. If the Respondent failed to pay the amount, within period of 10 years, then the document dated 1 March 1972 was to be considered a sale deed. It was the case of the Respondent that the Respondent on many occasions went to the Appellant to accept the amount as repayment and to re-convey the property but the Appellant avoided to do so. On these averments the Respondent filed the suit for redemption and re-conveyance.

3. A written statement was filed by the Appellant contending that by the document dated 1 March 1972, the Respondent had agreed to sell the land to the Appellant. The document was a conditional sale deed and the sale was absolute after the period of 10 years if no repayment was made. Only within the period of 10 years the Respondent had a right to re-purchase the land, which option was never exercised. It was contended that the Respondent had earlier filed a Suit bearing No. 275 of 1976 reforming the same document, which was dismissed. It was contended that the deed of 1 March 1972 is not a document of mortgage but is of sale.

4. The Civil Judge, Wai, framed issues as to whether the Respondent proved that the document dated 1 March 1972 was a mortgage deed and whether he was entitled for redemption and possession, and answered those issues in affirmative. The Civil Judge held that since the Deed was a mortgage deed and no ownership rights were transferred to the Appellant, the Respondent was entitled for redemption of mortgage upon his depositing the mortgage amount. Accordingly, by the judgment and decree dated 31 August 1991, the Civil Judge decreed the Suit. The Civil Judge however recorded a finding of fact that the amount was not repaid by the Respondent during the period of 10 years nor did he make a genuine attempt to do so. Appeal No. 422 of 1991 was filed by the Appellant in District Court, Satara. The District Judge confirmed the conclusions reached by the Civil Judge. The District Judge held that the document dated 1 March 1972 was a mortgage deed. The District Judge held that the Appellant did not take any steps to get the specific performance of the document and therefore, his case of an conditional sale could be accepted. The Appeal was dismissed by the District Judge on 23 September 1993.

5. The Second Appeal was admitted on 16 December 1993 after framing the following questions of law:-

"1. The lower Courts ought to have held that the document (Ex.37) dated 1/3/1972 was a sale with condition to repurchase and not a mortgage by conditional sale.

2. The lower Courts ought to have held that the Plaintiff was bound to file a suit for re-conveyance.

3. The lower Courts ought to have held that the Plaintiff's suit for redemption of mortgage was not maintainable.

6. Mr. Surel Shah, learned Advocate for the Appellant submitted : As per the test laid down in the decision in the case of Vanchala