BHASKAR JOSHI Vs. SHRINARAYAN AGRAWAL

JUDGEMENT

(1.) THIS is an appeal against the decree of the High Court of Judicature at Nagpur in Civil Appeal No. 10 of 1954 reversing the decree passed by the Second Additional District Judge, Amravati in Civil Appeal No. 5A of 1954. The High Court has by its decree directed the Court of first instance to pass a decree for redemption.

(2.) THE appeal raises a question as to the true effect of a deed dated September 10, 1931, executed by Shri Narayan Rambilas Agarwal and his two sons Sadan Gopal and Murli Dhar in favour of two brothers Bhaskar Waman Joshi and Trimbak Waman Joshi. The deed ostensibly conveys an absolute title to certain properties described therein. The transferors under the deed contend that the property transferred by the deed was intended to be mortgaged under a deed of conditional sale. The transferees contend that by the deed an absolute conveyance of the property thereby conveyed was intended and that the conveyance was subject to a condition of repurchase to be exercised within a period of five years from the dale of the deed. The Court of first instance dismissed the suit holding that the transaction in the deed dated September 10, 1931, was of the nature of an absolute conveyance with a condition of repurchase and the period limited by the deed for reconveyance had expired long before the date of the suit. The High Court held that the transaction was a mortgage by conditional sale and on that view reversed the decree and directed that a redemption decree be passed.

(3.) EXH . D -1 which is the deed in question recites that the transferees were indebted, that they needed Rs. 39,500/ - to discharge their liability, that Rs. 2,320/ - were due to the transferees and that amount was set off and the balance of Rs. 37,180/ - was paid by eight Cheques drawn on the Imperial hank of India. It was then recited that the immovable properties described in the deed were conveyed in full ownership and that possession was delivered to the transferees. The deed then proceeded to recite the conditions "in respect of this sale".