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IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
G. S. Ahluwalia
Hajrat Singh – Appellant
Versus
Parvat Singh – Respondent
ORDER :
G. S. Ahluwalia, J.
This second appeal, under section 100 of CPC, has been filed against the judgement and decree dated 6/5/2016 passed by First Additional District Judge, Mungavali, District Ashoknagar in Civil Appeal No. 67A of 2012, as well as, judgement and decree dated 5/1/2011 passed by Civil Judge Class 1, Mungavali in Civil Suit No. 3A of 2007.
2. Appellants are defendants who have lost their case from both the Courts below.
3. Facts necessary for disposal of present appeal, in short, are that respondent filed a suit for declaration of title and permanent injunction pleading inter alia that he is the owner and in possession of area 1.045 hectares out of 1.494 hectares of Survey No. 112 situated in village Atreji, Tahsil Mungavali, District Ashoknagar. On the southern side of the land, land of defendant No. 1 is situated whereas on the eastern side, land of Ram Prasad is situated and on the western side remaining land of survey No. 112 is there and on the northern side, land of defendants is situated. It was claimed that plaintiff is the sole owner and in possession of the property in dispute, as it was purchased by plaintiff from the father of defendants namely Feran Si
The court affirmed that a sale deed is valid unless proven to be a mortgage by conditional sale under Section 58(c), emphasizing the necessity of matching documentary intentions.
A mortgage by conditional sale cannot have its redemption rights restricted by any clause, which is deemed invalid under Section 60 of the Transfer of Property Act.
A deed titled as a mortgage by conditional sale establishes a lender-borrower relationship, and any clause restricting the right of redemption is void under Section 60 of the Transfer of Property Act....
A sale deed must explicitly state conditions for re-transfer to qualify as a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act.
The main legal point established is that the nature of a sale deed, the right to repurchase, and the applicable limitation for the suit are crucial factors in determining the outcome of property disp....
Redemption of mortgaged property – In absence of any positive evidence of any improvement and cost incurred, defendants are not entitled to recover anything more than mortgage amount.
Redemption of mortgage – No transaction shall be deemed to be a mortgage, unless condition is embodied in document which effects or purports to effect sale.
A transaction cannot be deemed a mortgage by conditional sale unless the condition for retransfer is embodied in the same document that effects the sale, as per Section 58(C) of the Transfer of Prope....
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