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   NON-REPORTABLE

  IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6254 OF 2010

SUBHASH MALHARI MUNESHWAR & ANR.                ...APPELLANT(S)

                               VERSUS

ARVINDE ANANDRAO KADAM & ANR.                   ...RESPONDENT(S)  

J U D G M E N T

R. BANUMATHI,J.

1. This  appeal  arises  out  of  the  Judgment  dated

08.04.2005 in Second Appeal No. 360 of 1988 passed by the

High Court of Bombay, Nagpur Bench, in and by which the High

Court reversed the judgment of the First Appellate Court

holding that the Exhibit P-33/document in question was a

sale with condition to repurchase.

2. The case of the appellants-plaintiff(s) is that

an amount of Rs.3,000/- was borrowed from the respondent and

in security the property was mortgaged under Exhibit P-33

(15.02.1975) with condition that if the amount is paid on or

before  15.03.1980,  the  property  can  be  redeemed.  The

appellants–plaintiff(s) filed the suit for redemption of the

mortgage alleging that the document (Exhibit P-33) was a

mortgage by conditional sale and not a sale with condition

for reconveyance.

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3. The Trial Court dismissed the suit holding that the

document Exhibit P-33 was not a mortgage with conditional

sale; but a sale deed with condition for repurchase. The

first Appellate Court reversed the judgment of the Trial

Court  holding  that  the  Exhibit  P-33  is  a  mortgage  by

conditional sale as defined under Section 58(c) of Transfer

of Property Act and not a sale with condition to repurchase.

The High Court in Second Appeal, reversed the judgment of

the First Appellate Court by holding that Exhibit P-33 was a

sale with condition to repurchase and not a mortgage by

conditional sale.

4. We have heard Ms. Astha Deep, Advocate appearing for

the appellants as well as Mr. Akshat Shrivastava, learned

amicus appearing on behalf of the respondent(s) and perused

the impugned judgment and materials on record.

5. Learned  counsel  appearing  for  the  appellant(s)

submitted  that  the  condition  embodied  in  the  document

Exhibit P-33 to re-purchase the property clearly indicates

that it is a mortgage by conditional sale as defined under

Section  58(c)  of  the  Transfer  of  Property  Act.  It  was

submitted that even if the condition that the respondent-

defendant(s) are to enjoy the property in lieu of interest

were not incorporated in Exhibit P-33,  the same would not

take away the character of the document, namely, that it is

a  mortgage  by  conditional  sale.  In  support  of  her

contention,  learned  counsel  has  placed  reliance  upon

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judgment  of  this  Court  in  Patel  Ravjibhai  Bhulibhai  (D)

Thr.  Lrs  vs.  Rahemanbhai  M.Shaikh  (D)  Thr.  Lrs.  &  Ors.

reported in 2016 (12) SCC 216.  

6. Per  contra,  learned  counsel  appearing  for  the

respondent(s) submitted that recitals in the documents are

clear  indication  that  Exhibit  P-33  is  only  a  sale  with

condition to repurchase. Placing reliance upon judgment of

this Court in Vanchalabai Raghunath Ithape (Dead) by Lrs.

And Shankarrao Baburao Bhilare (Dead) by Lrs. and Others

reported in (2013) 7 SCC 173, the learned counsel submitted

that based on the recitals in document Exhibit P-33 and the

evidence of the parties and considering the intention of the

parties, the High Court rightly held that it was a sale with

condition to repurchase and the impugned judgment warrants

no interference.

7. We have considered the rival contentions and perused

the impugned judgment and materials on record.

8. To determine the nature of the document whether it is

a mortgage by conditional sale or a sale deed with condition

for  reconveyance,  the  recitals  in  the  document  and  the

intention  of  the  parties  are  relevant.  The  Trial  Court

extracted the relevant clause in Exhibit P-33 and pointed

out that it was a sale deed with condition for repurchase.

To  appreciate  the  contentions  of  the  parties,  we  may

usefully refer to relevant recitals in Exhibit P-33 which

reads as under:

In the year 1975, for the reasons stated

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below execute this conditional sale deed as under:-

We have received from you in the presence of the Registrar’s office a sum of Rs.3,000/- and in consideration of the said amount we hereby give this land with the structures to you under this conditional sale deed. We have also delivered the possession of land without crops to you.

……………….

We have given this land to you under this conditional sale deed and the possession is also given. You are absolutely entitled to use the land according to your desire and the possession is not with us. There is no charge of anybody on the said land and in case it is found we will be responsible for the same. We will have no objection for your changing the name in the Revenue Record’.

9. As pointed out by the High Court, the recitals in the

document that transfer of interest with vesting of absolute

rights upon the respondents are clear indications that the

document is only a sale with condition for repurchase. As

pointed out by the High Court as well as the Trial Court,

the clauses in the deed clearly indicate that it is a sale

deed  with  condition  to  repurchase  and  not  a  sale  with

conditional mortgage as stipulated under Section 58(c) of the

Property  of  Transfer  Act.  As  rightly  pointed  out  by  the

learned  counsel  appearing  for  the  respondent-defendant(s)

that Exhibit P-33 document does not contain any recital as to

enjoyment of the property in lieu of the interest payable on

the amount. Any oral evidence adduced in this regard cannot

be looked into  in view of the prohibition under Section 92

of the Indian Evidence Act.

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10. Admittedly  pursuant  to  Exhibit  P-33  possession  was

handed over to the respondent(s) vesting on them the absolute

right to enjoy the property. Exhibit P-33 does not show that

the amount of Rs.3,000/- was taken as a debt or loan; nor

does the document show that the income from the land was to

be appropriated towards the interest by the respondent(s). We

do not find any ground warranting interference with impugned

judgment. In the result, the appeal is dismissed.

11. The parties are to bear their respective costs.

12. We place on record the valuable assistance rendered by

learned amicus, Mr. Akshat Shrivastava  appearing on behalf

of the respondent(s).

….......................J. [R. BANUMATHI]

…......................J. [INDIRA BANERJEE]

NEW DELHI 10th OCTOBER, 2018