SHIVRAM BHIKA BODKHE Vs. SADASHIV LAXMAN SANAP

JUDGEMENT

(1.) This Second Appeal arises out of concurrent findings rendered by the trial Court and the first appellate Court holding that document dated 29th October, 1963 styled as "Mudat Kharedi Khat" executed by deceased-defendant Shivram in favour of Sadashiv Laxman Sanap, is a mortgage by conditional sale. The trial Court decreed suit for redemption of the mortgage. The first appellate Court dismissed defendants appeal (R.C.A. No. 490/1989). The legal representatives of deceased-defendant Shivram have, therefore, preferred this Second Appeal.

(2.) Undisputedly, the plaintiff-Sadashiv owned the suit land bearing Gat No. 81, admeasuring 61 Ares, which he transferred in favour of deceased defendant-Shivram by virtue of the document in question i.e. "Mudat Kharedi Khat" dated 29th October, 1963, for Rs. 400/-. The possession was delivered to the defendant at the time of execution of the document. The defendant was to pay the land revenue. The parties agreed that the amount of Rs. 400/- would be paid to the defendant within a period of 5 years at any time when there would be no standing crop in the suit land and in that event the defendant would reconvey the property. It was agreed between them that in case the amount of Rs. 400/- is not paid within the stipulated period of 5 years, then it would be deemed as fault of the plaintiff and, thereafter, the deceased-defendant was to become absolute owner of the suit land. In such event the deceased-defendant and his legal representatives were entitled to enjoy the suit land as full owners.

(3.) The plaintiff's case is that the transaction was that of a mortgage. He gave notice dated 21-11-1981 (Exh. 29) and claimed redemption of the mortgage. He called upon the deceased-defendant to accept the amount of Rs. 400/- which the latter refused to accept during the relevant period covered by the transaction. He expressed willingness to get the suit land released from the debt and desired to obtain the redemption. The defendant gave reply to the said notice on 30-12-1981 and refused to comply with the demand.