VAMANRAO SAWALARAM BHOSALE Vs. VITHAL TUKARAM KADAM

JUDGEMENT

(1.) While admitting this Second Appeal by order dated 3-2-1997 this Court has framed the following substantial question of law for decision : "whether the Deed dated 21-4-1953 (Exhibit 62) is a Deed of Mortgage by way of conditional sale or a sale with condition of re-purchase -

(2.) Regular Civil Suit No. 26 of 1986 came to be filed by the present respondents for redemption of the mortgaged land viz. Gat No. 817 admeasuring 14 gunthas, Gat No. 837 admeasuring 16 gunthas, Gat No. 830 admeasuring 19 gunthas, Gat No. 874 admeasuring 27 gunthas, of village Jawle, Taluka khandala in Satara District. It was claimed that Tukaram Bala Kadam, the late father of the plaintiffs had executed the deed of mortgage by conditional sale on 21-4-1953 in favour of Shri Madhavrao Savlaram Bhosale for consideration of rs. 700/- and it was agreed between the parties that on repayment of the said amount within ten years from the date of the deed, the purchaser would reconvey the suit land to the seller and such condition was embedded in another agreement signed on 2-5-1953. During the life time of Tukaram, he had approached madhavrao for the return of land but in vain and in the meanwhile Madhavrao had applied for effecting the mutation entries in his favour, which was opposed by Tukaram vide his representations at Exhibits 33 and 34. In the meanwhile the suit land was merged with the other holdings of Madhavrao's joint family and it was subjected to partition amongst the family members. Thereafter Madhavrao died sometime in the year 1972 and the plaintiffs had filed Regular Civil Suit no. 89 of 1975 against the defendants for specific performance and during the pendency of this Suit Tukaram died. The plaintiffs were brought on record as lrs of Tukaram but subsequently the suit came to be withdrawn with condition to file fresh suit on the same cause of action. The suit land was subjected to consolidation under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. RCS No. 26 of 1986 thus came to be filed for redemption of the mortgaged agricultural lands. The trial Court on appreciation of the evidence held that the document at Exhibit 62 was a conditional mortgage deed and it was not an outright sale with the condition to repurchase. It further held that the bar of the provisions of the Consolidation Act did not come in the way of the plaintiffs and they were entitled for redemption of the land in Gat Nos. 817, 837, 874 and 830. This decree dated 23-4-1990 passed by the Ld. Civil Judge junior Division, Khandala came to be challenged by the present appellants- defendants in Regular Civil Appeal No. 264 of 1990 which was dismissed by the learned 4th Additional District Judge, Satara vide his judgment and order dated 18-7-1995. The learned Additional District Judge agreed with the view taken by the trial Court that the Deed dated 21-4-1953 at Exhibit 62 was a mortgage by way of conditional sale and not sale with the condition of repurchase. On account of the order dated 5-12-1995 passed by this Court in Civil Application No. 6738 of 1995 the appellants' possession over the suit land was protected and that is how they remained in possession of the said land continuously.

(3.) The official translation of the Deed dated 21-4-1953 at Exhibit 62 reads as under : "sale Deed for Rs. 700 (Rupees Seven Hundred) in respect of the land situate at Jawle, Peta Khandala executed on Monday, 21-4-1953. Madhavrao Savlaram Bhosale - age 41 (2) Wamanrao Savlaram Bhosale - age 28, Maratha, agriculturist, residing at Jawle,. . Party taking the Sale deed in writing. . From tukaram Bala Kadam, Maratha, agriculturist, age 42 residing at Loni, peta Khandala - Party giving the Sale Deed in writing now in lieu of the agreed sum of Rs. 700/- to be received in cash, to meet domestic expenses, before the Sub Registrar, Taluka Wai, I voluntarily sell to you the land which is purchased by me and which is of my ownership and which is Government jirayat and bagayat (Orchard) land situate at Jawle, Peta Khandala, Sub-Division and Taluka Wai, division and District North Satara, together with a sheath (of grass) , a narrow lane and a fallow portion of the land (the description of the said land is as follows) 2506S9.htm