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S. G. MEHARE
Premchand Lakichand Jain Died through his L. Rs. – Appellant
Versus
Bansilal Manikchand Jain Since deceased thr. his Lrs. – Respondent
JUDGMENT
The appellant, who was the original defendant, had impugned the judgment and decree of the learned Civil Judge Junior Division, Jamner, passed in R.C.S. No.27 of 1982,, dated 26.07.1988 and of the learned District Judge-5, Jalgaon passed in R.C.A. No.256 of 1988, dated 30.06.2022.
2. The appellants would be referred to as the ‘defendants’, and respondents as the ‘plaintiffs’.
3. Both plaintiffs and defendants died and their legal representatives continued the suit. This appeal is a second round of litigation. Against the judgment and decree of the Trial Court, the first appeal bearing R.C.A. No.256 of 1988 was preferred. It was decided on 01.02.1993. Against the said judgment and decree of the First Appellate Court, Second Appeal No.325 of 1993 was preferred. It was decided on 09.09.2021. This Court had set aside the judgment and decree of the First Appellate Court passed in R.C.A. No.256 of 1988 dated 01.02.1993 and relegated the matter to the First Appellate Court for de novo consideration of the appeal with a direction to frame appropriate points for determination in compliance with Order XLI Rule 31 of the Civil Procedure Code and decide the matter on merits. In view o
(1) Type of mortgage depends upon terms of contract – Oral evidence of intention is not admissible in interpreting covenants of deed.(2) Agreement to Sell – Plaintiff is not debarred from enforcing r....
The court established that a transaction could be classified as a mortgage rather than a sale, emphasizing the burden of proof and admissibility of oral evidence.
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.
Redemption of mortgage – Mortgagor has right to redeem at any time provided his right is so extinguished by act of parties.
A plaintiff seeking specific performance must demonstrate readiness and willingness to perform the contract; failure to do so negates the right to enforce the agreement.
An unregistered agreement to sell does not confer rights for specific performance; plaintiffs failed to show readiness and willingness to perform contractual obligations.
It is clear that in order to contend that transaction was a mortgage and not out and out sale, it requires compliance with provisions of law set forth hereinabove and in absence of same, such content....
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