1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiffs against the judgment and decree dated 30.9.1993 passed by learned Second Joint District Judge, Nadiad in Civil Regular Appeal No.9 of 1988, whereby the learned Appellate Judge dismissed the appeal and confirmed the judgment and decree passed by the learned Trial Judge dated 27.11.1987 whereunder the learned Trial Judge dismissed the suit of the appellants for redemption of mortgage of the suit property bearing Survey No.148, admeasuring 3 acre 29 gunthas situated in revenue limits of Rustampura, Taluka Thasra, District Kheda.

2. As could be found from the record of the case, appellants deceased Shaikh Rahemanbhai Mohamadbhai and Shaikh Ismailbhai Mohamadbhai original plaintiffs had executed a document dated 30.12.1960 in favour of respondent No.1 and 2 titling the same as conditional sale for Rs.10,000/- providing therein that if the said amount was repaid within five years, they shall give back the suit property with possession to appellants, however, the appellants shall have no right to get back the suit property after expiry of the above said period.

3. It was the case of the appellants in their suit that since it was mortgage by conditional sale, the suit property remained with respondent No.1 and 2 as mortgaged property and they had right to redeem mortgage from respondent No.1 and 2 on payment of amount to them.

4. The learned trial Judge came to the conclusion that the transaction was not mortgage with conditional sale but it was sale with a condition to repurchase the property if the amount of Rs.10,000.00 was repaid within five years by the appellants. The learned Judge also found that the respondent No.1 and 2 became absolute owner of the suit property by virtue of the subsequent document executed by the appellants on 30.10.1961 whereby the appellants had relinquished their right to get back the suit property since the respondent No.1 and 2 had agreed not to take back the amount of Rs.1,500.00 subsequently paid to the appellants.

5. The appellants unsuccessfully carried the matter further by filing Civil Regular Appeal No. 9 of 1988 in the Court of the learned 2nd Jt. District Judge Kheda at Nadiad.

6. The learned appellate Judge came to the conclusion that the document executed by the appellants on 30.12.1960 at Exh. 23 could not be said to be a deed of mortgage as not only the contents of the said documents were reflecting the intention of the parties to treat the transaction as sale but subsequent writing at Exh. 37 was also a step taken by the appellants to make it clear that the real intention of the parties was to treat the transaction as sale with condition to repurchase and not mortgage.

7. This appeal was admitted on the following substantial question of law:

1. Whether on the facts and circumstances of the case, the Courts below had erred in interpreting the documents in question being Exh.37 for ascertaining the nature of transaction?

8. This Court finds that in fact, core issue involved in this appeal is, whether the deed at Exh. 23 is mortgage by conditional sale or is sale with condition to repurchase? It is the case of the appellants that the transaction between the parties in deed at Exh.23 is mortgage by conditional sale whereas the case of the respondents no.1 and 2 is that it is conditional sale with right given to the appellants to repurchase the suit property by making payment within five years from the date of execution of the deed Exh. 23, on the default of which, sale was to become absolute.

9. Since the parties have focused on construction of the deed Exh. 23 and since this court is also of the opinion that the main substantial question is of construction of deed Exh. 23, in order to obviate any technicality, the following further substantial question of law is framed and the same shall be the main substantial question of law.

Whether the transaction contained in the deed Exh.