IMPORTANT POINT
In a mortgage the debt subsists and a right to redeem remains with the debtor, but a sale with a condition of repurchase is not a lending and borrowing arrangement; no debt subsists and no right to redeem is reserved by the debtor, but only a personal right to purchase. This personal right can only be enforced strictly according to the terms of the deed and at the time agreed upon.

JUDGMENT

M.Y. EQBAL, J.

Delay condoned. Leave granted.

2. This appeal by special leave is directed against the judgment and order dated 19.7.2004 passed by the High Court of Judicature at Bombay in Second Appeal No.295 of 1988, whereby the second appeal filed by the plaintiff-appellant was dismissed and the order of the first appellate court was confirmed. The appellant is the legal heir of the original plaintiff/widow who was admittedly the owner of the suit property bearing Block No.126 of village Degaon admeasuring 62 R.

3. The facts of the case can be summarized as under:

4. Plaintiff’s case is that a deed (Ex.31) was executed by Vanchalabai Raghunath Ithape (the original plaintiff - now deceased and represented through her legal representative) in favour of defendant No.1 Shankarrao Baburao Bhilare (the original defendant/respondent No. 1 herein and now represented through his legal representatives) on 12.7.1967 for a consideration of Rs.3,000/-, by which the suit land along with 4 annas share in the mango trees was transferred to defendant No.1 and possession of the same was handed over, with a specific stipulation to the effect that the land was sold on the condition that after receiving Rs.3,000/- in lump sum within 5 years before end of any Falgun month by the defendant, the land was to be returned to the plaintiff. The plaintiff’s case is that it was a mortgage transaction and the land was to be returned by the original defendant after receiving the said consideration of Rs.3,000/- within 5 years. The plaintiff further alleged that the period of 5 years was nominal as there was no condition that after 5 years the sale would become final. According to the plaintiff, till 1978 the defendant was agreeing to redeem the suit property, but thereafter he started avoiding to do it. On 20.7.1979, plaintiff issued a notice calling upon defendant to reconvey the suit property after accepting the amount. Upon non-compliance, plaintiff filed a suit being RCS No.226 of 1979 for redemption of the suit property against defendant No.1 and his brothers/relatives as a suit for partition, which also included the suit property, was stated to be pending between them. However, only defendant No.1 contested the suit by filing written statement contending that the transaction in question (Exh.31) is not a mortgage transaction, but was that of outright sale. He denied of having any relationship of mortgagee and mortgagor between him and the plaintiff. According to him, the plaintiff had sold the suit property to him as per the said sale deed, but only as a concession the period of 5 years was mentioned in the deed to reconvey the said suit property and since there was no repayment in 5 years no re-conveyance could be claimed.

5. Considering the pleadings and evidence tendered by the parties, the trial court opined that the suit land was originally owned by the plaintiff and after execution of the said deed, possession is with the defendant. On perusing said Exhibit 31, the trial court found it in the nature of the sale deed, but in the last paragraph of the said deed, there is a mention that the said amount of Rs.3,000/- was to be repaid by the plaintiff within the period of 5 years at the end of Falgun, and that at that time the defendant was to accept the said amount and to reconvey the suit land thereafter. Considering the said recital coupled with the evidence of the defendant and provisions of Section 58(c) of the Transfer of Property Act, 1882, the trial court did not consider it to be a sale transaction and held it to be a mortgage transaction by conditional sale. The trial court also answered the issue “whether defendant No.1 proved that time was the essence of the said contract …” in negative. The suit of the plaintiff for redemption was accordingly decreed by the trial court declaring that the plaintiff is entitled to redeem the suit property after paying the amount of Rs.3,000/- to the defendant.

6. Aggrieved by aforesaid judgment and