The intention of parties in a transaction determines its nature, and the title of the document is not solely decisive in classifying it as a mortgage by conditional sale or an absolute sale.

JUDGMENT :

1. Appellant (Original Defendant) impugns judgment and decree dated 03.05.2017 passed by learned District Judge-7, Ahmednagar in Regular Civil Appeal No. 459 of 2014, thereby upholding judgment and decree dated 04.10.2014, passed by Civil Judge, Junior Division, Rahuri in Regular Civil Suit bearing No. 392 of 2006.

2. Respondent/Original Plaintiff instituted RCS No. 392 of 2006 seeking relief of redemption of mortgage in respect of land bearing Block No. 789, ad-measuring 1 H 21 R, situated at village Devlali Pravara, Tq. Rahuri, District Ahmednagar. Plaintiff contends that suit land is his ancestral property. He was in need of money for his domestic difficulties, therefore, he approached defendant to advance amount of Rs. 3,500/- and executed registered document dated 04.05.1970, in form of mortgage by conditional sale. Period of mortgage was 12 years against mortgaged amount of Rs. 3,500/-. Possession was handed over to defendant. Defendant had agreed that plaintiff can redeem mortgaged property by making re-payment of mortgage money of Rs. 3,500/- within 12 years. After expiry of 12 years, plaintiff offered amount of Rs. 3,500/- to defendant but he avoided to receive the same. Lastly, plaintiff issued legal notice on 16.08.2006 to defendant calling upon him to receive mortgage amount and to execute redemption of mortgage. However, on 31.08.2006 defendant gave false reply and refused to redeem mortgage and to hand over possession of suit property.

3. Defendant refuted plaintiff’s claim contending that plaintiff proposed him to sell suit land with condition of re-purchase. Accordingly, he purchased suit land for a consideration of Rs. 3,500/- under registered document of sale, with condition of re-purchase. In difference to said document, he was put into possession. Plaintiff failed to re-purchase suit land from defendant by making payment of Rs. 3,500/- within 12 years. Eventually, sale became absolute. Plaintiff’s claim that transaction was mortgage by conditional sale is false. Plaintiff or anybody from his family never offered repayment of amount within stipulated period. Suit is filed beyond period of limitation. According to defendant, he gave reply to plaintiff’s notice dated 16.08.2006. Inadvertently, he used word mortgage in his reply, although, transaction was of sale with condition of re-purchase.

4. Trial Court framed issues, recorded evidence of parties and concluded that transaction between parties was mortgage by conditional sale, finally decreed the suit for redemption of mortgage. In appeal by defendant, learned District Judge concurred with findings of trial Court and confirmed decree. Hence this Second Appeal.

5. Mr. M.B. Patekar, learned Advocate appearing for appellant/defendant vehemently submits that Courts below have recorded perverse finding that transaction between parties was mortgage by conditional sale. According to him, document is clearly titled as sale-deed with condition of re-purchase. Relation of creditor and debtor is not discernible from document. It no where suggests transfer of land was by way of security to loan. Since plaintiff failed to abide by condition of repayment of consideration amount and get sale deed executed in his favour within stipulated period, the sale attained finality. Plaintiff has lost his right of re-purchase in terms of agreement. He would further submit that suit is clearly barred by limitation. No relief could have been granted in favour of plaintiff. In support of his contention he relies upon following reported judgments :

“(i) Suraj Narain Kapoor and Others Vs. Pradeep Kumar & Others, 2017 SCC Online SC 1246

(ii) Vanchalabai Raghunath Ithape (Dead) by Lrs. Vs. Shankarrao Baburao Bhilare (Dead) by Lrs. & Others, (2013) 7 SCC 173

(iii) Tamboli Ramanlal Motilal (Dead) Vs. Ghanchi Chimanlal Keshavlal (Dead) by Lrs. & Another, AIR 1992 SC 1236

(iv) Nana Tukaram Jaikar Vs. Sonabai & Others, ^{AIR 1982 Bombay 437}

(v) Vamanrao Sawalaram Bhosale & Others Vs. Vithal Tuka