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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
HONBLE JUSTICE R. W. JOSHI
Shaikh Papamiya Chandbhai (Since deceased) Through his L.Rs.- Shaikh Aspiya Papamiya – Appellant
Versus
Rupchand Nana Bhane – Respondent
JUDGMENT :
ROHIT W. JOSHI, J.
1. The present second appeal was admitted vide order dated25.01.2007 on the following substantial question of law :-
“(i) Whether the deed Exhibit – 45 dated 23.11.1978 is mortgage by conditional sale or sale with condition of reconveyance ?
2. The present appeal is preferred by original defendant no.1, who has suffered two concurrent decrees in a suit filed against him by respondent no.1 herein. The other respondents are family members of respondent no.1. Respondent no.1 is hereinafter referred to as “plaintiff” and appellant is referred to as “defendant no.1”.
3. The plaintiff had filed a suit for redemption of mortgage with respect to the suit property, which is an agricultural land bearing Gut No.36/1 admeasuring 1.01 HR situated at village Hasanapur, Tq.Shrirampur, Dist.Ahmednagar. It is the case of the plaintiff that he had mortgaged the suit property with defendant no.1 in consideration of loan amount of Rs.7,000/- vide document, being mortgage by conditional sale dated 23.11.1978. The said document is at Exhibit-45 in the record of the learned trial court. The plaintiff contends that in terms of the said document dated 23.11.1978, defendant no.1 was
A deed titled as a mortgage by conditional sale establishes a lender-borrower relationship, and any clause restricting the right of redemption is void under Section 60 of the Transfer of Property Act....
A mortgage by conditional sale cannot have its redemption rights restricted by any clause, which is deemed invalid under Section 60 of the Transfer of Property Act.
Redemption of mortgaged property – In absence of any positive evidence of any improvement and cost incurred, defendants are not entitled to recover anything more than mortgage amount.
The document was determined to be a sale with a condition to repurchase rather than a mortgage, emphasizing the necessity of a debtor-creditor relationship for a true mortgage.
The court affirmed that a sale deed is valid unless proven to be a mortgage by conditional sale under Section 58(c), emphasizing the necessity of matching documentary intentions.
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.
Redemption of mortgage – No transaction shall be deemed to be a mortgage, unless condition is embodied in document which effects or purports to effect sale.
The court clarified that a mortgage by conditional sale requires a debtor-creditor relationship, which was not found; thus, the document was held as a sale deed with a right of repurchase.
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