VASANTRAO VINAYAKRAO DESHMUKH Vs. TULSABAI

JUDGEMENT

(1.) HEARD the learned Counsel for the parties.

(2.) THIS Second Appeal is directed against the Judgment and Order dated 30th January, 1989, passed by the learned IInd Additional District Judge, Jalgaon allowing the appeal filed by the respondents, bearing Civil Appeal No. 344/1983.

(3.) THE property, bearing Gat No. 21 I/a (old Survey No. 98/1), admeasuring 2 H 30 Rs of village Rohini, Taluka Chalisgaon, Dist. Jalgaon (hereinafter referred to as "the suit property"), originally belonged to one tatyasaheb Parbatrao Deshmukh. By a document dated February 16, 1972, styled as a "conditional Sale-Deed", (Exh-20), he transferred the suit property to karbhari Tanha Bondare for a sum of Rs. 3500/ -. Present respondents are the heirs of the purchase Karbhari Tanha Bondare. The said conditional sale-deed contains a condition that in the event the vendor returned the sum of Rs. 3500/-within a period of three years, the purchaser would reconvey the suit land. Subsequently, by another registered sale-deed, dated January 1, 1980, the original owner Tatyasaheb Parbatrao Deshmukh sold and conveyed the suit property to vasantrao Vinayakrao Deshmukh, the appellant herein. The said sale-deed dated january 1, 1980 recites that the suit land has been transferred by way of a conditional sale to Karbhari Tanha Bondare for a sum of Rs. 3500/- and on his death was in possession of his heirs, and therefore, the purchaser Vasantrao should repay the mortgage loan of Rs. 3500/- to the heirs of Karbhari Bondare and get it reconveyed in his own favour. After purchase of the suit land by a sale-deed, dated January 1, 1980, the appellant issued a notice to the respondents i. e. the heirs of Karbhari Bondare on January 7, 1980 for redemption of mortgage and calling upon them to reconvey the suit property to him. By a letter dated january 24, 1980, the respondents admitted that Karbhari Bondare had purchased the land under a conditional sale-deed. They, however, denied that it was a deed of mortgage. They further contended that as the amount of Rs. 3500/- was not returned within a period of three years, the sale had become final and Karbhari had become an absolute owner of the suit land. They, therefore, declined to execute a deed of reconveyance. The appellant, therefore, filed a Suit bearing civil Suit No. 40/1980 in the Court of Civil Judge, Junior Division, Chalisgaon against the respondents for redemption of mortgage and reconveyance of the suit land in his favour. The respondents contested the suit by filing a written statement. They reiterated that the sale-deed, dated February 16, 1972 (Exh-20), styled as "conditional sale-deed" was not a deed of mortgage, but was a sale-deed with a condition of re-purchase within a period of three years. Since the vendor failed to get the property reconveyed within three years, the sale had become absolute, and the vendor and the present appellant who claimed through the vendor were not entitled for a reconveyance.