TAMBOLI RAMANLAL MOTILAL Vs. GHANCHI CHIMANLAL KESHAVLAL

JUDGEMENT

(1.) The facts leading to this civil appeal lie in a short compass.

(2.) The appellant filed Civil Suit No. 1621 of 1966 on the file of the Court of Civil Judge (J.D.) at Baroda. The suit was for redemption of the properties mortgaged under registered document dated 11th December, 1950. The mortgage was executed by the plaintiff in favour of the first defendant by way of conditional sale. The period of redemption was fixed at five years from the date of transaction. The consideration was a sum of Rs. 5,000/-. The first defendant (the first respondent herein) sold a portion of the suit property in favour of the second defendant (the second respondent herein). The appellant had executed a rent note agreeing to pay an annual rent of Rs. 330/- for the premises which represented interest at 6% per annum. The first defendant had made alterations and changes in the property to the detriment of the plaintiff. In spite of the offer of the mortgage amount, the first defendant refused to accept the same and refused to allow the redemption of the properties. Hence the suit.

(3.) The first defendant filed the written statement to the effect that it was not a mortgage by conditional sale. On the contrary, it was a sale with an option to repurchase within a period of five years. The house in 1958 had fallen down. Thereafter, it was reconstructed by incurring an expenditure of Rs. 13,000/-. In so far as the Option to repurchase had not been exercised within five years, that right was barred and the first defendant had become the owner.