IMPORTANT POINT
Nature of a document depends upon intention of the parties.

JUDGMENT

R. BANUMATHI, J.

These appeals arise out of the judgment dated 15.11.2006 passed by the High Court of Bombay dismissing the Second Appeal No.887 of 2003 thereby upholding the decision of the first Appellate Court holding that Ex.P-73 is a “mortgage by conditional sale” and that the respondents-plaintiffs are entitled to redeem the suit property upon payment of the balance amount.

2. Facts giving rise to these appeals are that the respondents-plaintiffs filed a suit for redemption of the suit property bearing S.No.147 present G.No.750 admeasuring 2 Hectares 18 Are situated in village Kudal, Jawli taluka and district Satara. Case of the respondents-plaintiffs is that the suit property was mortgaged by their father Shripad Joshi on 28.07.1967 in favour of Shankar Shinde who is the predecessor-in-interest of the appellants-defendants for Rs.2500/-. The said deed (Ex.P-73) is a deed of “mortgage by conditional sale” with a condition that if the amount is not repaid within a period of five years from the date of execution of the deed, then the same would be treated and construed as an absolute sale between the parties conferring absolute right of ownership on Shankar Shinde and his legal representatives. As per the recitals in the document, the possession of the suit property was also handed over to Shankar Shinde on the date of execution of the deed. The respondents-plaintiffs further averred that on 26.07.1972, their father had paid an amount of Rs.800/-to Shankar Shinde and to that effect Ex.P-69-receipt was executed. Shripad Joshi died in the year 1973 and the respondents-plaintiffs succeeded to his estate. Further case of the respondents-plaintiffs is that in spite of repeated request to the appellants-defendants for redemption of the suit property and delivery of possession of the property, they failed to receive the money and had not handed over the possession of the property. After issuance of legal notice dated 19.02.1980, the plaintiffs filed the suit for redemption of the mortgage.

3. The appellants-defendants resisted the suit contending that the transaction between their father-Shankar Shinde and the father of the respondents-plaintiffs-Shripad Joshi was a sale with condition to repurchase within a stipulated period of five years. Case of defendants is that since Shripad Joshi, father of the respondents-plaintiffs failed to repay the money within the stipulated period of five years and failed to take any step to get the property reconveyed to them, after the period of five years as per the terms and conditions of Ex.P-73, father of the appellants-defendants Shankar Shinde has become the absolute owner of the suit property and the plaintiffs have no right, title or interest in the suit property.

4. The trial court dismissed the respondents-plaintiffs suit by holding that the relationship of debtor and creditor is not established and the respondents have failed to prove that the transaction (Ex.P-73) was a mortgage and therefore, they are not entitled to redemption and possession of the suit property. After referring to the recitals in Ex.P-73, the trial court held that the respondents-plaintiffs have agreed that if Shripad Joshi does not pay the amount within stipulated period of five years, the said document was to be treated as sale deed and in his life time executant Shripad Joshi did not take any action to get the property reconveyed. The trial court also held that Ex.P-69-receipt has not been proved by the respondents-plaintiffs and the respondents-plaintiffs are not entitled to the decree prayed for by them.

5. In appeal, the first Appellate Court set aside the judgment of the trial court by holding that Ex.P-73 is a “mortgage by conditional sale” and not an absolute sale deed or a sale with a condition to repurchase. The first Appellate Court held that payment of Rs.800/-by Shripad Joshi has been proved and that the respondents have proved the execution of Ex.P-69-receipt by examining Prabhakar (PW-2) who