RAJARAM JAYARAM JOSHI Vs. TANUBAI DHONDIBA PUJARI

JUDGEMENT

(1.) THIS is a second appeal against a judgment of the Assistant Judge of Sholapur. The plaintiff is suing to redeem what is alleged to be a mortgage made in 1897, the suit having been filed in 1932.

(2.) THE document in question is in the form of a sale deed for Rs. 100, with the provision that in case "i pay you back the aforesaid sum of Rs. 100 before the completion of twelve years from this day, then you should re-convey to me the aforesaid land. " THE learned Judge held that that was a mortgage by way of conditional sale, and I quite agree with him. He has held as a fact that the consideration, viz. Rs. 100 received, was less than the value of the property ; the parties are referred to in the document as creditor and debtor, and the document states that the creditor has paid to the debtor Rs. 100, which does not suggest that the transaction was a sale. THE redemption clause which I have read clearly brings the case within Section 58 (c) of the Transfer of Property Act. It is suggested that the right of redemption is limited strictly to the mortgagor, and that shows that the transaction was a sale ; but, in my opinion, the clause, would clearly extend to the successors in interest both of the mortgagor and the mortgagee. THE words used are the personal pronouns 'i' and 'you' ; but it cannot be that if the mortgagee dies before the twelve years expire, thereby the mortgagor would lose the right of redemption. I think it is clear that both the personal pronouns used include the successor in interest. THErefore, I have no hesitation in holding that the lower Court was right in regarding this document as a mortgage.