The main legal point established in the judgment is the interpretation of the nature of the transaction under the Transfer of Property Act, 1882, and the application of legal principles to determine whether it constituted a mortgage or an outright sale.

JUDGMENT :

Rajeev Kumar Shrivastava, J.

1. This second appeal has been filed under Section 100 of CPC against the impugned judgment and decree dated 03.08.2001 passed by Ninth Additional District Judge, Gwalior in Civil Appeal No. 77A/1999, which was filed challenging the judgment and decree dated 12.10.1999 passed by Eleventh Civil Judge Class-2, Gwalior in Civil Suit No. 180A/1994.

2. The facts of the case in brief are that the deceased Keshavrao Jadhav (whose legal representatives are the present appellants) filed a suit for redemption of the suit property against the defendants-respondents alleging that the suit house No. 5/270, new number is 29/275 situated at Sheikh Ki Bagiya, Nai Sadak, Lashkar, Gwalior, was purchased by the plaintiff from Ghassa S/o. Mangal on 14.11.1956 and after purchasing the property, the plaintiff got his name mutated in the record of Municipal Corporation, Gwalior. The plaintiff alleged that he mortgaged the suit house for his personal need with Mahant Keshavdas, who was the Guru of defendant No. 1-Mahant Kamaldas for Rs. 4000/- on 30.11.1961 and executed a conditional sale deed mentioning the fact that the plaintiff will be entitled to redeem the property by 30.11.1964 after payment of the mortgage amount. When the plaintiff tried to redeem the property by making payment, the defendant No. 1 was not ready to redeem the property and restore the possession, hence the suit was filed.

3. It was further pleaded in the plaint that when the plaintiff applied for correction of the name in Municipal Corporation record, the defendant No. 2 filed objection that he entered into an agreement with Mahant Keshavdas to purchase the property and got a decree on the basis of the agreement for specific performance of the contract and was declared himself as Bhumiswami of the suit house. The plaintiff alleged that since the property was mortgaged with defendant No. 1, the defendant No. 1 had no right to transfer the property to defendant No. 2 as per usufructuary mortgage and no interest was payable in the shape of rent. It was further alleged that in Civil Suit No. 126A/1979 filed by defendant No. 2 against the Guru of defendant No. 1, the plaintiff was not made party and the decree was collusive and not binding on the plaintiff. As the defendant No. 1 was simply a mortgagee, he had no right to transfer the suit property to defendant No. 2 and the plaintiff is entitled to get possession from the defendants. Since Keshavdas died and defendant No. 1 Mahant Kamaldas is in possession of the property, the relief of decree for possession was also prayed for. The plaintiff alleged that he being an unskilled labourer and having income of less than Rs. 6000/- per annum, was entitled to get the benefit of notification issued by State of M.P. dated 1.4.1983 and was exempted from payment of the court fee.

4. The defendant No. 1 admitted the claim of the plaintiff while defendant No. 2 contested the suit. The allegation that the suit property was mortgaged for Rs. 4000/- was denied. It was further denied that the document dated 30.11.1961 was the conditional sale and the period of redemption was agreed to be 30.11.1964. It was alleged that the property was sold to Mahant Keshavdas and the condition of resale by 30.11.1964 was only an agreement for resale of the property and it could not amount to mortgage. It was further denied that the plaintiff was willing to pay the mortgage money but as it was the absolute sale, the question of payment of mortgage money and redemption of the property does not arise. It was further alleged that he agreed to purchase the property from Mehant Keshavdas and on that basis, he got the decree for specific performance of the contract and the plaintiff was not the necessary party to be impleaded as defendant in Civil Suit No. 126A/1979, hence he was not impleaded as party to the suit as it was the absolute sale of the property and the plaintiff is not entitled to get any relief. The death of Mahant Kesh