IMPORTANT POINT
Mere issuance of notice cannot be sufficient to show willingness on part of Appellants.

Dr. Shalini Phansalkar-Joshi, J.—Heard Mr. Thorat, learned Senior Counsel for the Appellants, and Mr. Talkute, learned counsel for Respondent Nos.2 to 6.

2. This Second Appeal is preferred against the Judgment and Order dated 18th November 1991 passed by the 3rd Additional District Judge, Satara in Regular Civil Appeal No.38 of 1984, thereby dismissing the Appeal and confirming the Judgment and Decree passed by the Court of Civil Judge, Senior Division, Satara in Regular Civil Suit No.119 of 1976.

3. By the said Judgment and Decree, the Trial Court has dismissed the Suit for specific performance of the contract filed by the Appellant and, as stated above, the Appeal preferred against the said Judgment and Decree is also dismissed by the 1st Appellate Court, however on some different reasons.

4. Against this concurrent ‘Decree’, the present Second Appeal stands admitted on the following substantial questions of law, as framed in Ground Nos.1(a) to 1(c) of the Appeal Memo. Those grounds are as follows:-

“1(a) Whether in an Appeal preferred by the Appellant-Plaintiff, the lower Appellate Court was right in upsetting the findings regarding the nature of the transactions dated 20th June 1963 and 12th April 1965 ? It is submitted that, the Trial Court, while answering Issue Nos.1 and 5, has clearly given its findings that the aforesaid transactions are in the nature of sale with a condition to repurchase. The lower Appellate Court upset these findings without there being any challenge from the Respondents- Defendants and held that these transactions are out and out sale.

1(b) Whether the lower Appellate Court was right in holding that, subsequent unregistered Agreements for Re-conveyance at ‘Exhibit-68’ and ‘Exhibit-69’ cannot replace registered ‘Sale-Deed’ at ‘Exhibit-61’ and ‘Exhibit-62’, without assailing on the genuineness of the documents at Exhibits “68” and “69” ?

1(c) Whether the clause regarding ‘Right of Reconveyance’ is necessary to be mentioned in the registered ‘Sale-Deeds’, since it is an independent Agreement between the parties ?”

5. Thus, the main substantial question of law, as framed, pertains to the nature of the suit transaction. As per the Trial Court, the suit transaction was of sale with a condition of re-purchase. The Trial Court, however, held that the Appellants have not filed the Suit within limitation and also not proved their readiness and willingness to perform their part of the contract. Therefore, the Trial Court rejected prayer of the Appellants for specific performance of the contract and dismissed the Suit; whereas, according to the 1st Appellate Court, the nature of the transaction was an ‘out and out sale’ and as the ‘Agreements of Re-purchase’ were unregistered, they cannot override the registered document of ‘Sale-Deed’. Hence, the 1st Appellate Court also dismissed the Suit and the Appeal.

6. Therefore, in order to appreciate the nature of the transaction and the issues involved in this Second Appeal, it would be necessary and useful to refer to the facts of the present case, which are not in the realm of dispute.

7. The suit property is a land bearing Gat No.878, admeasuring, totally, 1 Acre 28 Gunthas, which is situate at Village Ganeshwadi, District Satara. It was originally owned by the Appellants’ father Sakharam Vithu Dhumal. He has sold his half share from the said land on 20th June 1963 for a consideration of Rs.900/- to the father of the Respondents, namely, Shamrao Mahadev Dhumal, by way of registered ‘Sale-Deed’, with a condition to re-purchase the property by refunding the amount within ten years therefrom. A separate ‘Agreement’ also came to be executed to that effect. Thereafter, on 12th April 1965, Sakharam again sold in the same way the remaining half share of the said property to Shamrao for a consideration of Rs.1,000/- again on the condition to re-purchase the said property by refunding the said amount; though no specific period was prescribed in this tran