VITHAL TUKARAM KADAM AND ANOTHER versus VAMANRAO SAWALARAM BHOSALE AND OTHERS

The appellants' suit mortgage, decreed by two courts, has been reversed by the High Court. The parties shall be referred positions in the suit, for convenience and better appreciation.

p. 382, margin B

The only question oflaw for consideration dated 21.04.1953, Exhibit 62, was a mortgage by sale with an option to repurchase.

p. 382, margin B

The Civil Judge and the Additional District after consideration of the recitals in the deed, intention of and the attendant circumstances, held that it conditional sale.

p. 382, margin C

The High Court in second appeal, opined that there exist a debtor and creditor relationship between contained no recital that the suit lands were being transferred payment of money. The agreement was a sale deed, and possession. The option for reconveyance, was the stipulated period often years. The suit itself was The plaintiff, while objecting to mutation in the name did not make any offer to repay the amount ofRs.700/deed, seeking consequent return of the lands. The to be a sale, with an option to repurchase.

p. 382, margin D

Learned counsel for the plaintiff submits reconveyance being contained in the agreement itself, by conditional sale under Section 58( c) of the Transfer 1882 (hereinafter referred to as 'the Act'). It was time during ten years under the agreement. The plaintiff mutation in the name of the defendant. The defendant had admitted that the plaintiff had taken money time. The land was valued at Rs.3500/-and the defendant that amount for reconveyance. The plaintiff could . for a paltry sum ofRs.700/-. The High Court erred in not appreciating the distinction between a mortgage by conditional sale and a sale with an option to repurchase. Reliance was placed on Vishwanath Dadoba Karate vs. Parisa Shantappa Upadhye (D) thr. Lrs., (2008) 11 SCC 504, and Patel Ravjibhai Bhulabhai (D) thr. Lrs. vs. Rahemanbhai M. Shaikh (D) thr. Lrs and Ors., (2016) 12 SCC 216.

pp. 382–383, margin F

Learned counsel for the respondent submitted that mere incorporation in the agreement of a provision for reconveyance, cannot be singularly determinative of the deed being a mortgage by conditional sale. The agreement was styled as a sale deed, conveying an absolute title, free of encumbrances. The failure to redeem within ten years, coupled with the absence of a debtor and creditor relationship, were sufficient evidence of the agreement being a sale with option to repurchase. Reliance was placed on Tamboli Raman/a/ Motilal (dead) by Lrs. vs. Ghanchi Chimanla/ Keshavla/ (dead) by Lrs., 1993 Supplement (I) SCC 295.

p. 383, margin B

The question whether a document is a mortgage by conditional sale, or a sale with an option to repurchase, has to be determined in the facts of each case, dependent on the recitals in the document, intention of the parties, coupled with attendant surrounding circumstances. There can be no hard and fast rule for determining the nature of the document devoid of these circumstances. Precedents, in abundance, will not suffice alone, as observed in Pandit Chrmchun Jha vs. Sheikh Ebadat Ali and Another, 1955 SCR I 74, as follows:- "There are numerous decisions on the point and much industry has been expended in some of the High Courts in collating and analyzing them. We think that it is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each case must be decided on its own facts."

p. 383, margin D

Section 58, clause (c) of the Transfer of Property Act, 1882 defines mortgage by conditional sale as follows:- "Where the mortgagor ostensibly sells the mortgaged propertyon condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale; Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale."

pp. 383–384, margin G

In Bhaskar Waman Joshi (deceased) and Ors. vs. Shrinarayan Rambilas Agarwal (deceased) and Ors., AIR 1960 SC 30 I, the principles for determination of the nature of the document were explained as follows:- "7 ... The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts."

p. 384, margin C

In P.L. Bapuswami vs. N. Pattay Gounder, AIR 1966 SC 902, it was further observed that the difference in the valuation of the property, and the consideration mentioned in the agreement, was also relevant for deciding the nature of the document:- "6 ... The criticism oflearned counsel for the appellant is justified and we must proceed on the basis that the valuation of the property was Rs.8000/- and since the consideration for Ex- B-1 was only Rs.4000/- it was a strong circumstance suggesting that the transaction was a mortgage and not an outright sale .... " Similar is the view expressed in Ram/al vs. Phagua. (2006) 1 SCC 168. In Vishwanath Dadoba Karale (supra) the recitals in the agreement were similar to that in the present case. It was held that limited transfer of title with option for reconveyance in one document, qualified the agreement as mortgage by conditional sale.

pp. 384–385, margin E

·In Indira Kaur vs. Sheo Lal Kapoor. (1988) 2 SCC 488, it was held that the inordinately long period of time for ten years, under the agreement to seek reconveyance, was indicative of the intention of the parties to create a mortgage by conditional sale, observing as follows:- "5. There is no manner of doubt that the transaction in question was one of mortgage in essence and substance though it was clothed in the garb of a transaction of ostensible sale. The factors adumbrated hereinunder leave no room for doubt on this score: (2) The stipulated period for conveying the property was a very long period of! 0 years. The very length of the period is suggestive of a transaction of mortgage and not a transaction of absolute sale with a stipulation to reconvey the property in such peculiar circumstances, bearing on the relationship between the parties or some other relevant consideration. (5) The obvious reason for enteri_ng into such a transaction of ostensible. sale coupled with a contemporaneous agreement to sell within 10 years was that if it was not garbed with this paraphernalia and was given the nomenclature of a mortgage the period ofredemption would have been 30 years. This period could not have been curtailed without attracting the doctrine of clog on equity of redemption. This was obvious reason for resorting to this device."

p. 385, margin A

In Patel Ravjibhai Blmlabhai (D) thr. Lrs. vs. Rahema11bhai M. Shaikh (D) thr. Lrs. and ors., (2016) 12 SCC 216, the document was held to be a mortgage by conditional sale, in view of the clause for reconveyance contained in the same in view of Section 58 ( c) of the Act, and the existence of a debtor and creditor relationship.

p. 385, margin F

Tamboli Rama11lal Motilal (dead) by Lrs. (supra) is distinguishable on facts. It was held therein that there existed no relationship of debtor and creditor. The absence of any right in the mortgagee to foreclose the mortgage was also noticed observing:- "20. The further clause in the document is to the effect thatthe executant shall repay the amount within a period of five years ~~~e~fuls~re~~~~nm~~mle~ representatives will have any right to take back the said properties. Here only the right of the transferor is emphasised, while the right of the transferee to foreclose the mortgage is not spoken to .... "

pp. 385–386, margin G

The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be broadly summarised. An ostensible sale with 1ransfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58 (c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner.

p. 386, margin A

The agreement, Exhibit 62, though styled as a sale deed, for a consideration ofRs.700/- is but an ostensible sale, containing a clause for reconveyance. The agreement concludes as follows:- "If I repay your amount of Rs.700/- in any year (at any time) during the period often years from now then you have to return my said land to me, subject to this condition I have sold land to you." The significance of the words "repay", "return" and "subject to this condition" cannot be overlooked. They are not commensurate with a deed of absolute sale. The language used, conveys the distinct impression that the plaintiff did not intend to relinquish all rights, title and claims to his lands. The defendant was aware of the limited nature of right coqveyed and had agreed to a conditional sale along with an obligation to return the lands ifthe amount was repaid.

p. 386, margin D

The plaintiff initially filed Civil Suit no. 89/1975 for specific performance to transfer the lands back to him. It was withdrawn with liberty to file a fresh suit for redemption. The filing of the fresh suit in 1986, beyond the period of ten years is hardly relevant. The limitation for the right to redeem, under Section 60 of the Act is thirty years.

p. 386, margin G

The parties were admittedly well known to before. The plaintiff had been borrowing money from even earlier from time to time according to need, and execution of the agreement he was in need of money. land was Rs. 3500/- far in excess of the amount ofRs.700/- mentioned in the agreement. The defendant in cross-examination recital in Exhibit 66, dated 11.6.1975 in reply to notice, that demanded the sum of Rs.3500/-with interest for reconveyance. relationship of debtor and creditor cannot be faulted with. did not take any steps for mutation for three long years of the deed. The plaintiff had specifically objected name of the defendant, by Exhibits 33 and 34. reconveyance provided in the agreement itself was inordinately ten years. The clause for reconveyance was in requirement 58 ( c) of the Act. The High Court failed to consider the in totality and in a holistic manner, while arriving at the was no debtor and creditor relationship between the parties, agreement was a sale deed with an option to repurchase. are clearly unsustainable.

p. 387

The agreement, Exhibit 62, is held to be conditional sale and not a sale with an option to repurchase. the order of the High Court is held to be unsustainable The appeals are allowed.

p. 387, margin C