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BIREN VAISHNAV, NISHA M. THAKORE
Tushar Naranbhai alias Nalinbhai Patel – Appellant
Versus
Kishorchand Kalidas Parekh – Respondent
JUDGMENT (CAV)
Biren Vaishnav, J.—This First Appeal is filed by the original plaintiff. The challenge is to the judgement and decree dated 25.04.2018 passed by the learned Principal Senior Civil Judge, Gandhinagar in Special Civil Suit No.178 of 2017. By the aforesaid judgement, the learned Trial Judge entertained an application under Order VII Rule XI(a) and (d) on behalf of the defendant nos.2 and 3 –respondent nos.2 and 3 herein and dismissed the suit of the appellant.
2. Facts in Brief:
2.1 The appellant filed a Special Civil Suit for specific performance, permanent injunction and declaration. The narrative in the plaint was as under:
(a) The suit was filed for agricultural land at Ahmedabad, sub-district Gandhinagar, Taluka:Gandhinagar, Mouje Gam Zundal, Revenue Khata No.473, Block Survey No.483 admeasuring 10218 square meters.
(b) According to the plaintiff, during the course of negotiations, the defendant no.1 had confirmed that he was the sole and absolute owner of the suit land and therefore competent to sell.
(c) It was decided and agreed that the plaintiff will pay Rs.36,00,000/- in installments to the defendant no.1. Initially payment of the Rs.20,00,000/- in four
Redemption of mortgage – Mortgagor has right to redeem at any time provided his right is so extinguished by act of parties.
Redemption of mortgage – Unregistered mortgage deed – Undertaking to create a charge, in absence of a registered mortgage deed does not vest any legal interest in immovable properties.
The court reaffirmed that redemption rights hinge on compliance with mortgage conditions; failure to meet obligations nullifies claims to recover property.
Mortgage rights cannot be extinguished by an unregistered document; valid legal processes are required to affect mortgage rights.
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 intention of parties in a transaction determines its nature, and the title of the document is not solely decisive in classifying it as a mortgage by conditional sale or an absolute sale.
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....
Point of law:Mortgage - Inability of the plaintiffs to repay the mortgage amount - plaintiffs cannot plead that the first defendant had created a clog on redemption
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