The central legal point established in the judgment is the distinction between a mortgage by conditional sale and an outright sale, based on the wording and intention of the parties in the transaction.

( 1 ) BEING aggrieved by the judgment and decree dated 24/12/1997 passed by I ADJ, Shivpuri in civil suit No. 27-A/1991 whereby the suit filed by the respondents for declaration and permanent injunction was decreed, the present appeal is filed.

( 2 ) SHORT facts of the case are that the respondents filed a suit for declaration and permanent injunction on 25/11/1991 alleging that the respondents are the owners of the suit property. It was alleged that Zuman Khan predecessor-in-title of the respondents who has died on 23/11/1985 has executed a sale deed in favour of the appellant on 29/08/1970 for a consideration of Rs. 2,000/ -. On the same day an agreement to re-sell the suit property was executed by the appellant in favour of zuman Khan wherein it was mentioned that the appellant will execute the sale deed in favour of Zuman Khan upon payment of Rs. 2,000/- along with interest @ 2% per month. It was further alleged that late Zuman Khan paid interest from time to time and also paid the mortgage money on 13/02/1982 along with balance amount of interest. Further case of the respondents was that the original sale-deed which was executed by Zuman Khan in favour of the appellant was returned by the appellant on payment of principal amount with interest. Further case of the respondents are that thereafter appellant tried to get his name mutated and vide resolution dated 21/02/1989 it was resolved by Municipal Council, shivpuri to get the name of appellant mutated in the record of Municipal Council against which the appeal was filed by one Khatun begum W/o Zuman Khan before the Collector, shivpuri which was allowed and vide order dated 13/06/1991, order of mutation was set aside. It was prayed that it be declared that zuman Khan is owner of the suit property and the sale deed is null and void.

( 3 ) APPELLANT submitted the written statement wherein it was not disputed that the appellant has purchased the suit property from zuman Khan vide registered sale deed but it was denied that by the said transaction the suit property was mortgaged by late Zuman Khan with the appellant. It was admitted that an agreement to re-sale was executed on 30/08/1970 whereby it was agreed that sale deed will be executed upon payment of sale consideration along with interest. It was also not disputed that interest was paid by Zuman Khan from time to time. It was denied that on 13/02/1982 a sum of Rs. 3,000/- was paid by zuman Khan to appellant. It was admitted that original sale deed which was registered by the appellant in favour of Zuman Khan was returned to him. An explanation was given that the sale deed was returned to late Zuman Khan as he was in need of that document for producing the same in some case. It was alleged that thereafter the document was never returned. It was prayed that the suit be dismissed. On the basis of pleadings of the parties, learned court below framed the issues, recorded the evidence and decreed the suit. Being aggrieved by the judgment and decree, the present appeal has been filed.

( 4 ) LEARNED counsel for the appellant submits that Section 58 (c) of Transfer of Property Act, 1882 deals with mortgage by conditional sale which reads as under :-58. . . . . . . . . . . . . . . (c) Mortgage by conditional sale.-Where, the mortgagor ostensibly sells the mortgaged property-on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale :[provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. ]

( 5 ) LEARNED counsel for the appellant submits that since the sale deed Ex. P/4 is dated 29/06/197