D. C. SRIVASTAVA, J.

( 1 ) THIS is plaintiffs Second Appeal.

( 2 ) THE plaintiffs filed Suit for redemption of mortgage on the allegation that their deceased father owned agricultural land. Deceased Adesing Vazir was in need of money. He executed a mortgage deed on 3. 12. 1996 in favour of deceased Nanabhai Vaghjibhai, deceased father of the plaintiff, for Rs. 699/ -. The mortgagee agreed to reconvey the property on repayment of Rs. 699/ -. These two transactions are contained in one document Ex. 28 dated 3. 12. 1996. The plaintiffs alleged that Nanahhai Vaghjibhai was requested to accept Rs. 6997- and reconvey the property, hut he refused to do so. According to the plaintiff the mortgage deed is a mortgage by conditional sale and since the defendants refused to reconvey the mortgaged property hence the Suil was filed by the plaintiff.

( 3 ) THE Suit was resisted by defendant on the ground that it was time barred and that the document was not mortgage by conditional sale. According to them it is a document in the nature of sale with condition to repurchase. Agreement of reconveyance was denied. It is also denied that the amount was offered within five years which was refused. It was further pleaded that because the plaintiff and their predecessors failed to repurchase the property within five years they are not entitled to have reconveyance of the same.

( 4 ) THE Trial Court interpreted the document to he a mortgage by conditional sale. Accordingly Decree for redemption was passed. An Appeal was preferred. The appellate court interpreted the mortgage Deed in a different manner and held that it was not a mortgage by conditional sale, but sale with condition to repurchase. Accordingly the judgment and Decree of the Trial Court were set aside and the Suit of the plaintiffs for redemption and possession was dismissed. It is, therefore, this Second Appeal.

( 5 ) ONLY one substantial question of law arose in this Appeal which was formulated as under: whether in the facts and circumstances of the case the document Ex. 28 is a sale with condition to repurchase or mortgage by a conditional sale ?

( 6 ) LEARNED Counsel for the parties were heard on interpretation of document Ex. 28 and the cases cited by them were also taken into consideration.

( 7 ) THE Supreme Court in the case of Tamboli Ramanlal Motilal (dead) by L Rs. vs. Ghanchi Chimanlal Keshavlal (dead) by L Rs. and Anr, reported in AIR 1992 SC 1236 made the following observations while interpreting a Deed to be a mortgage Deed or transaction in the nature of conditional sale. It observed that having regard to the nice distinction between a mortgage by conditional sale and a sale with an option to repurchase, one should be guided by the terms of the document alone without much help from the case law. Thus the first test according to the Supreme Court is terms of the document which should be considered and interpreted to find out the intention of the parties. Of course the cases could be referred to for interpreting a particular clause to gather the intention of the parties. The next test laid down by the Supreme Court in this case is that the nomenclature of the document is hardly conclusive and much importance cannot be attached to the nomenclature alone. Since it is the real intention which requires to be gathered.

( 8 ) IN the case before the Supreme Court the document was styled as a Deed of conditional sale, but that was not held to be conclusive of the matter. Other circumstances be taken to consideration. Those facts and circumstances were that the executant of the document took a sum of Rs. 5000/- by cash for paying miscellaneous dues, for meeting the domestic expenses and for business purposes. This amount was not taken as loan at all. Of course the amount was utilised for discharging prior debts and outstanding dues. The Supreme Court accordingly laid down that where on a consideration of a sum of Rs. 5000/- a deed of conditional sale is executed no relationship of debt

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