A transaction cannot be deemed a mortgage by conditional sale unless the condition for retransfer is embodied in the same document that effects the sale, as per Section 58(C) of the Transfer of Property Act.

JUDGMENT :

1. The defeated defendants have impugned the Judgments and decrees of the Court of the first instance and the first appellate Court.

2. The appellants will be referred to as the "defendants" and the respondents as the "plaintiffs" for convenience.

3. The plaintiffs have claimed that they had filed a suit for redemption and possession. The agricultural fields were the suit lands. The plaintiffs had a case that they were in dire need of money. They contacted the defendants for financial assistance. The defendants agreed to pay a loan subject to the condition of executing the sale deed in their favour. They also agreed to reconvey the suit lands to them upon returning their amount. A contract was concluded that the plaintiffs would refund Rs.1200/- to them within ten years, and they would reconvey the suit fields to them. Accordingly, on 03.11.1973, the sale deed was executed. On the same day, a contemporary document titled an agreement of resale of the suit lands on refunding the loan amount was also created. It was purely a mortgage by conditional sale. The plaintiffs went to the defendants with the loan amount and requested them to reconvey the suit lands. However, they denied it. Hence, the suit was filed.

4. The defendants had a case that the plaintiffs agreed to sell the suit lands to them. Hence, from time to time, the plaintiffs took Rs.1130/- from them. They requested the plaintiffs to execute the sale deed, but they avoided it. They had no written evidence of the money they had paid the plaintiffs. Taking advantage of the said situation, the plaintiffs forcibly got an agreement of resell of the suit lands from them. They were afraid of losing the money paid to them. Hence, they executed the said agreement. They never intended to resell the suit lands, as they had their other lands adjoining to the suit lands. It was purely a sale transaction. It was not a mortgage by a conditional sale.

5. Both Courts held that it was a mortgage by a conditional sale. The defence of the defendants was discarded.

6. Heard the respective counsels at length.

7. The appeal was admitted on 23.09.1993. On that day, leave to amend and add ground Nos.2, 3 and 7A was granted. The learned counsel for the appellants amended the grounds accordingly. However, no substantial questions of law were framed. Therefore, this Court had formulated the substantial questions of law on 11.09.2023, which reads thus;

(A) Whether the terms of re-conveyance shall only be embodied in the document that affects the sale ?

(B) Whether the transaction was a mortgage by conditional sale ?

(C) Whether Section 36-A of the Maharashtra Land Revenue Code protect the defendants ?

8. The learned counsel for the defendants has vehemently argued that unless the condition for resell is embodied in the document of sale, it cannot be said to be a mortgage by conditional sale. The contemporary document of resell of the land does not prove that it was a mortgage by conditional sale. To bolster his argument, he relied on the case of Ashokkumar Nandalal @ Girdharilal Maliwal and others Vs. Jaswantsing Pyarasing Sikh and others, First Appeal No.129 of 2007, decided by this Court on 27.02.2019. He also argued that the defendants belong to the Scheduled Tribes. Hence, they are protected under section 36-A of the Maharashtra Land Revenue Code. (“M.L.R. Code” for short). It was a question of law, and oral evidence on such an issue is not essential. Such a legal issue may be raised at any stage of the suit. He prayed to allow the appeal.

9. Per Contra, the learned counsel for the plaintiffs would submit that there are two fact findings against the defendants. Therefore, there is a little scope to interfere with the impugned judgments and decrees. He relied on the case of C. Doddanarayana Reddy (Dead) By Legal Representative and Others Vs. C. Jayarama Reddy (Dead) By Legal Representatives and Others ; (2020) 4 SCC 659 and argued that when the view taken by the trial court and the First Appella