KHUMANSINGH ADESING Vs. HEIRS OF NANABHAI

JUDGEMENT

(1.) This is plaintiff's Second Appeal.

(2.) The plaintiffs filed Suit for redemption of mortgage on the allegation that their deceased father owned agricultural land. Deceased Adesing Vazir was in need of money. He executed a mortgage deed on 3.12.1996 in favour of deceased Nanabhai Vaghjibhai, deceased father of the plaintiff, for Rs. 699/-. The mortgagee agreed to reconvey the property on repayment of Rs. 699/-. These two transactions are contained in one document Ex. 28 dated 3.12.1996. The plaintiffs alleged that Nanahhai Vaghjibhai was requested to accept Rs. 6997- and reconvey the property, hut he refused to do so. According to the plaintiff the mortgage deed is a mortgage by conditional sale and since the defendants refused to reconvey the mortgaged property hence the Suil was filed by the plaintiff.

(3.) The Suit was resisted by defendant on the ground that it was time barred and that the document was not mortgage by conditional sale. According to them it is a document in the nature of sale with condition to repurchase. Agreement of reconveyance was denied. It is also denied that the amount was offered within five years which was refused. It was further pleaded that because the plaintiff and their predecessors failed to repurchase the property within five years they are not entitled to have reconveyance of the same.