BABU AND OTHERS Vs. SHANKAR AND OTHERS

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 29.12.1993 passed by 3rd Additional District Judge, Ahmednagar in Regular Civil Appeal No. 241 of 1988, the original defendants have preferred this Second Appeal from the appellate decree.

(2.) Brief facts giving rise to the present Appeal are as follows:

(3.) The learned senior counsel for the appellants submits that as per the statement in the deed Exhibit 37, if the amount was paid within the stipulated period of five years, then the deed would be treated as a permanent sale deed and after that, the transferee could enjoy the land forever and the transferor or his successor would be precluded from making any claim and the condition of repurchase was to operate only within the stipulated period and further. The learned senior counsel submits that these are the clear indications of sale with the condition of repurchase. The learned senior counsel submits that the deed Exhibit 37 does create, expressly or by implication, the relationship of debtor and creditor, nor the amount paid by the transferee to the transferor made a charge on the land. There is no provision in the deed with regard to the interest and the possession of the land was handed over to the transferee. The learned senior counsel submits that on careful perusal of the deed Exhibit 37, it appears that the plaintiff had accepted the amount of Rs. 2,700/- in cash from the defendants to repay the society loan and Tagai loan and the said amount was taken as a loan at all. Thus, there exists no relationship as debtor and creditor and by reading the document as a whole, there is nothing to conclude that there is a debt and the relationship between the parties is that of a debtor and creditor. The suit property was sold conditionally for a period of five years and the possession was also handed over. The deed Exhibit 37 proceeds to state that the defendants and their legal heirs are entitled to use and enjoy the property under the ownership right after the said period of five years, if the amount is repaid. It has also been specifically mentioned in the deed itself that if the executant fails to repay the amount within the stipulated period of five years, neither he nor his heirs or legal representatives will have any right to take back the said property. The learned senior counsel submits that the first appellate court has erred in concluding that the deed dated 02.08.1962 was a conditional sale but it was a mortgage by conditional sale as claimed by the plaintiff. The learned counsel submits that the plaintiff has committed breach of the agreement executed on 02.08.1962 and as such, lost the right for reconveyance of the property and the sale has become absolute in favour of the appellants/defendants. Even the respondent/plaintiff has acknowledged in the year 1970 that the suit transaction was of a conditional sale and a mortgage. However, this admission was overlooked by the first appellate court. After a gap of 13 years, the respondent/plaintiff has no right to say that the transaction is a mortgage. The first appellate court has properly appreciated the evidence of PW1 Advocate Deshmukh in the light of the deed Exhibit 37. There is no recital in the deed Exhibit 37 that the amount of consideration was to be appropriated against the income from the property which would be fetched by the appellants/defendants.