SOPAN SADASHIV KADAM Vs. NIVRUTTI SAKHARAM JADHAV

JUDGEMENT

(1.) THE defendant has filed this second Appeal thereby challenging the judgment and decree passed by the learned District Judge, Satara in Regular Civil Appeal No.1045 of 1985. The transaction between the parties is mortgage by conditional sale or is sale with condition to repurchase, is the only point, deciding the fate of the suit.

(2.) THE document in question dated March 2, 1966 is on record and admitted in evidence. I have seen the said document. The Respondent Nivrutti Sakharam Jadhav had purchased the Stamp Paper of Rs.10/- in his name under his thumb impression on 2-3-1966. The Respondent Nivrutti Sakharam Jathav is the executant of this document and present Appellant Sopan Sadashiv Kadam is the person in whose favour the document dated 2-3-1966 came to be executed. The title of document is "MUDDAT KHAREDI RUPAYE 500/- MUDDAT VARSHE 5". In this document it is mentioned that an amount of Rs.300/- has been taken from time to time by Respondent Nivrutti Sakharam Jadhav from the Appellant for maintenance (GHAR KHARCHASATHI). The document further mentions that an amount of Rs.200/- was received by the Respondent Nivrutti Sakharam Jadhav before the Sub Registrar, Phaltan, District Satara at the time of execution of the document. The document also shows that the possession of land Survey No.122/1, admeasuring 1 Acre was handed over to the Appellant Sopan Sadashiv Kadam by Respondent Nivrutti Sakharam Jadhav. It is evident from this document that the said land can be released (redeemed) by making repayment of the said sum within a period of 5 years. The word used in the document in regional language Marathi is "SODVUN GHEU" (redeemed). The document also states that if the amount is not paid within the period of 5 years, this "MUDDAT KHAREDI" shall be permanent sale deed and Appellant Sopan Sadashiv Kadam can make the payment of land revenue to the State Government and cultivate the land in future. The document also states that if the possession of the Appellant Sopan Sadashiv Kadam is obstructed, the said obstruction shall be removed by the Respondent Shri Nivrutti Sakharam Jadhav at his cost and the said cost shall not be claimed from the Appellant. Thus the contents of the document from its title to the end are quoted above. This document is claimed to be out and out sale with condition to repurchase by the Appellant. However, the Respondent states that this document is a document of mortgage by conditional sale.

(3.) THE undisputed facts in the case are that the parties are closely related. The handing over possession of the suit property to the defendant by registered document which is styled as MUDAT KHEREDI dated March 2, 1966. The only question therefore, which is a moot question between the parties, is regarding the nature of the transaction. The plaintiff claims that transaction of mortgage by conditional sale within the meaning of section 58(c) of the Transfer of Property Act. Per contra the defendant contends that transaction dated March 1966 though styled as "Mudat Kharedi", is out and out sale with condition to repurchase, as mentioned in the said document. This was the only important question deciding the fate of the suit and or appeal before the learned trial Court as well as the First Appellate Court. Both the courts have extensively dealt with the evidence laid on behalf of the parties, regarding the nature of the transaction and have recorded concurrent finding that transaction in question is a mortgage by conditional sale within the meaning of section 58(c) of the Transfer of Property Act, 1882. This is in fact a finding of fact, recorded by the trial Court and confirmed by the learned First Appellate Court.