GANPATI BABJI ALAMWAR Vs. DIGAMBARRAO VENKATRAO BHADKE

JUDGEMENT

(1.) The appellants, who were the original defendants are aggrieved by the dismissal of their second appeal, affirming the judgment of the First Appellate Court, which reversed the dismissal of the suit for redemption of mortgage filed by the plaintiffs.

(2.) The parties shall be referred to by their original position in the suit for convenience. The plaintiffs purchased daily necessities from the shop of defendant no.1 on credit. A sum of Rs.10,500/- became outstanding after verification of accounts. On 26.04.1970, the plaintiffs executed an instalment bond, Exhibit 53, to pay the dues in three yearly instalments on the occasion of Gudi Padwa in 1971, 1972 and 1973. The plaintiffs defaulted in payment of the first instalment itself. On 29.04.1971, Exhibit 52, the plaintiffs executed a conditional sale deed for sale of their agricultural lands measuring 21/2 acres in favour of defendant no.1 for a sum of Rs.11,000/-. The earlier dues of Rs.10,500/- formed part of the consideration. The plaintiffs admitted having received a sum of Rs.500/- earlier. The agreement provided that the plaintiffs upon repayment of the dues by Gudi Padwa of 1973 shall be entitled to reconveyance of the lands. In the event of their failure to do so, the sale would become absolute. The plaintiffs having failed to repay the dues, defendant no.1 obtained mutation of the lands in his name on 13.05.1976 and sold the lands to defendant no.2 by a registered sale deed dated 13.02.1978. The plaintiffs thereafter filed the suit for redemption in the year 1980.

(3.) The Civil Judge held that the nature of the document coupled with the recitals therein and conduct of the plaintiff, left him in no doubt that the document was a sale deed. The First Appellate Court and the High Court on an interpretation of the document held it to be a mortgage by conditional sale, opining that their existed the relationship of a debtor and a creditor, and not that of a transferor or transferee. Thus, the present appeal.