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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
GAURI GODSE
Pundlik Dagu Holgade – Appellant
Versus
Pandurang Kashinath Hire (Since Deceased through Legal Heirs) – Respondent
JUDGMENT :
GAURI GODSE, J.
1. This second appeal is filed by the original defendants to challenge the judgment and decree passed by the first appellate court. By the impugned decree, the suit for redemption of the mortgage is decreed, and the plaintiff is directed to deposit an amount of Rs. 300/- towards redemption of the mortgage. The second appeal is admitted vide order dated 1st July 2004 on the following substantial question of law:
“Whether the Appellate Court committed error by misreading and misinterpreting the document dated 2nd July, 1962 and came to the conclusion that the document is mortgage by a condition of sale?”
FACTS IN BRIEF:
2. The appellants are the original defendants nos. 1 to 8. Respondent No. 1 is the original plaintiff. Respondents Nos. 2 to 6 are the original defendants nos. 9 to 13. It was the plaintiff’s case that the father of the plaintiff and defendants nos. 9 to 13 needed money and therefore approached the father of defendants nos. 1 to 8, who advanced Rs. 300/- and a document dated 2nd July 1962 was executed, mortgaging the suit property belonging to the plaintiff’s father. Since the father of defendant nos. 1 to 8 did not possess a money-lending licenc
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.
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 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.
Mortgage rights cannot be extinguished by an unregistered document; valid legal processes are required to affect mortgage rights.
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.
The main legal point established is that the nature of a sale deed, the right to repurchase, and the applicable limitation for the suit are crucial factors in determining the outcome of property disp....
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.
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....
The court reaffirmed that redemption rights hinge on compliance with mortgage conditions; failure to meet obligations nullifies claims to recover property.
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