The execution of a contemporaneous agreement for reconveyance of a property does not necessarily render the sale deed a mortgage transaction, and the burden of proof lies on the party asserting that the sale deed was not genuine.

R.S. Garg, J.

1. The plaintiff who was successful in the trial Court was non-suited in the appeal, therefore has preferred this appeal u/s 100 C.P.C.

2. The appeal was admitted on 10.2.87 on the following substantial question of law :-

Whether the sale-deed Ex. P-1 dated 27.4.74 passes a valid title to the appellant.

3. The brief facts which are almost not in dispute are that defendant Choormani executed a sale-deed Ex. P-1 on 27.4.74 and thereunder transferred the suit house well described in plaint para 1 after receiving Rs. 2000/- and the same day i.e. 27.4.74 the plaintiff Dularibai executed an agreement for reconveyance in favour of the defendant that if the amount of Rs. 3500/- with interest in paid to the plaintiff within the period of one year thenshe would transfer the property in favour of the defendant. Agreement Ex D-1 states that the house has been purchased for a sum of Rs. 2000/- and the defendant has taken a loan of Rs. 1500/- on 17.4.74. The total amount of Rs. 3500/- with interest of 3% p.m. if was paid by the defendant to the plaintiff within the period of one year then the plaintiff would reconvey the house in favour of the defendant and if the said amount is not paid then the plaintiff would be entitled to have the possession of the property. The plaintiff came with the case that under the agreement the possession of the property was not immediately delivered but the defendant assured that he would deliver the possession within one month after making some alternative arrangements. As the defendant did not deliver the possession the plaintiff filed the suit. The appellant in his written statement contended that under Ex. P-l he did not sell the house but in fact had executed the sale-deed as an assurance and security for the loan amount. The plaintiff filed the said sale-deed as Ex. P-1 in support of his contention while the defendant filed and relied upon Ex. D-l in support of his contention. The plaintiff examined herself as P.W. 1 and also examined Subhashchandra Gupta (PW 2), Kewal Jain (PW 3) and on the other hand the defendant examined himself as D.W. 1 and also examined Gopiram Patwa as D.W. 2. After hearing the parties the learned trial Court by its judgment and decree dated 4.2.83 decided the issue No. 1 in favour of the plaintiff and held that the document Ex. P-1 conveys title in favour of the plaintiff. It also held that the plaintiff did not get the possession of the house. It also held that the defendant did not execute the sale-deed as a security for the loan. According to the trial Court the defendant did not repay the amount and he was entitled to reconveyance in his favour only after making the payment. On these findings the learned trial court decreed the suit and also swaared mesne profits in favour of the plaintiff. Being aggrieved by the said judgment and decree the defendant preferred the first appeal u/s 96 C.P.C. and as the said appeal was allowed and the plaintiff was non-suited he has come up in second appeal.

4. The first appellate court held that the court is entitled to see the intention of the parties and the bar contained u/s 91 and 92 would not be attracted. Holding that the burden to prove that the document was genuine was on the plaintiff it found that the intention of the parties was not to sell the suit property under Ex. P-1 but it was executed as a colateral security for the loan and Ex. D-1 clearly recites that it was a loan transaction. On these findings the learned first court found that the plaintiff had failed to prove his case and is not entitled to any decree.

5. Ku. Kholiya learned counsel for the appellant contended that when the condition of recoveyance is not embodied in the document of sale it cannot be held that the document Ex. P-1 was in fact a mortgage. She further submits that to prove that the document was sham and bogus the party which asserts must prove it. She also submits that the evidence to prove that the document was in fact not to be acted u