Bombay High Court
Vitthal Kashiram Magar (Deceased ... vs Bapu Laxman Yadav on 12 November, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:48720
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 21 OF 2024
WITH
INTERIM APPLICATION NO. 430 OF 2024
Vitthal Kashiram Magar (Deceased through its ..Appellants
Legal Heirs) 1(a) Shalan Vitthal Magar & Ors
Versus
Bapu Laxman Yadav ...Respondent
Mr. Nitin Gaware Patil, with Divyesh K. Jain, for the Appellant.
Mr. Pranav Bhoite, for the Respondent (through VC).
CORAM: N. J. JAMADAR, J.
DATE : 12th NOVEMBER 2025
ORDER:
1. This Second Appeal is directed against a judgment and decree
dated 18th March 2023 passed by the learned District Judge, Baramati in
RCS No. 154 of 2016, thereby confirming the judgment and decree
dated 6th October 2016 passed by the learned Civil Judge, Daund, Pune,
ARUN
RAMCHANDRA
SANKPAL
whereby the learned Civil Judge allowed the Respondent-Plaintiff to
RAMCHANDRA redeem the mortgage evidenced by the Instrument dated 4 th January
1990 and directed the Appellant-Defendant to execute a re-conveyance
in favour of the Plaintiff.
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2. The Respondent-Plaintiff instituted the Suit for redemption of the
mortgage and re-conveyance of the mortgage property, i.e., 50R land
out of Survey No. 233, situated at Kusegaon, Taluka Daund, District
Pune and execution of conveyance in favour of the Plaintiff and
perpetual injunction with the assertion that late Awadabai was the
Plaintiff's mother. The Defendant is the brother of late Awadabai. On 4 th
January 1990 late Awadabai had executed a registered mortgage by
conditional sale. The mortgagor had accepted mortgage money of
Rs.5,000/- under the said instrument. It was agreed that the mortgagor
would return the mortgage money of Rs.5,000/- within a period of five
years and, thereupon, the mortgagee would reconvey the mortgaged
property. Awadabai passed away on 17th April 1991. The Plaintiff was
unaware of the said mortgage. In the year 2012, the Plaintiff became
aware of the said mortgage. The Defendant was called upon to accept
the mortgage money and execute a re-conveyance. As the Defendant
refused, the Plaintiff was constrained to institute the suit for
redemption of mortgage and re-conveyance of the mortgaged property.
3. The Appellant-Defendant resisted the Suit contending, inter alia,
that the transaction in question was that of an outright sale with a
condition of repurchase, and not a mortgage by conditional sale. The
predecessor-in-title of the Plaintiff and the Plaintiff failed to comply
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with the condition of repurchase and, therefore, the Defendant has
become an absolute owner of the suit property.
4. By a judgment and decree dated 6th October 2016, the learned
Civil Judge decreed the Suit observing inter alia that the instrument in
question was a mortgage by conditional sale. The condition of re-
conveyance was incorporated in the instrument itself. Late Awadabai
had passed away during the term of five years, within which the
mortgage money was agreed to be repaid and re-conveyance executed.
Having regard to the recitals in the instrument in question and the
attendant circumstances, the transaction between the parties was that
of a mortgage by conditional sale.
5. Being aggrieved, the Appellant carried the matter in Appeal
before the District Judge, Baramati. After appraisal of the evidence and
material on record and testing the judgment of the trial Court, the
learned District Judge concurred with view of the trial Court. In the
view of the learned District Judge, the recitals in the instrument clearly
indicated that the instrument was that of a mortgage by conditional
sale, and since the limitation for a suit for redemption of mortgage is
30 years, the Suit was rightly decreed by the trial Court.
6. Mr. Nitin Gaware Patil, the learned Counsel for the Appellant,
submitted that a substantial question of law arises for consideration as
both the Courts have misconstrued the nature of the instrument in
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question, which has vitiated the findings recorded by the Courts below.
Taking the Court through the Instrument dated 4 th January 1990, Mr.
Patil made a strenuous effort to draw home the point that the
instrument in question has the trappings of a sale, with a condition to
repurchase. Emphasis was laid on the fact that there is no reference to
the existence of the debt; nor the parties had agreed that the purported
mortgage money would carry interest. In the absence thereof, the
Courts below committed a grave error in law in construing the
instrument in question as a mortgage by conditional sale.
7. To buttress these submissions, Mr Patil placed reliance on the
judgments of the Supreme Court in the cases of Prakash (Dead) By LRs
Vs G. Aradhya & Ors1 and Umabai & Anr Vs Nilkanth Dhondiba Chavan
(Dead) by LRs & Anr.2 Reliance was also placed on a judgment of this
Court in the case of Nana Tukaram Jaikar Vs Sonabai Madhav Saindate
& Ors.3
8. I have perused the instrument in question, the evidence on record
and the judgments rendered by the Courts below. Indeed, there is a
distinction between mortgage by conditional sale with a condition of
repurchase. In a mortgage the debt subsists and thus the debtor retains
the right to redeem. In contrast, in a sale with a condition of
1 2023 SCC OnLine SC 1025.
2 (2005) 6 SCC 243.
3 1982 SCC OnLine Bom 46.
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repurchase, there is no subsisting debt. A condition of repurchase is
essentially in the nature of an agreement for sale which can be enforced
by seeking specific performance, where the purchaser reneges. The
proviso to Section 58(c) of the Transfer of Property Act, 1882 which
defines a mortgage by condition sale, provides that no transaction shall
be deemed to be a mortgage unless the condition that upon payment
being made the buyer shall transfer the property to the seller is
embodied in the document which effects or purports to effect the sale.
9. It is trite, the form of transaction is not decisive. The true test is
the intension of the parties in entering into the transaction. If the
intension of the parties is that, the transfer of interest in the property
was by way of security, it would be a mortgage. The effect of proviso to
Section 58(c) is that an ostensible sale with a condition cannot be
regarded as a mortgage unless the condition is contained in the same
document. However, it does not necessarily imply that, if the condition
is incorporated in the Deed effecting or purporting to effect a sale, a
mortgage transaction must of necessity have been intended. The
question whether by incorporation of such a condition, a transaction
ostensibly of sale is to be considered as a mortgage is one of the
intension of the parties to be gathered from the language of the deed,
interpreted in the light of the attendant circumstances. These
propositions are well-settled.
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10. On the aforesaid touchstone, reverting the facts of the case,
especially the instrument in question, it becomes abundantly clear that
the document has been styled as "a sale for term of five years". The
instrument incorporates a clear stipulation that within the said term of
five years, the purported vendor would repay the consideration of
Rs.5,000/- and thereupon re-conveyance would be executed in favour
of he vendor. The term of repayment of the consideration of Rs.5,000/-
is impregnated with the existence of the debt and obligation to repay
the same.
11. Conversely, the instrument in question contains not more than
three recitals, namely, conditional sale for a term of five years,
repayment of consideration of Rs.5,000/- and re-conveyance thereof
and the purchaser having a right to cultivate and take the crops from
the suit land. There are no recitals which are usually associated with a
sale. Even there is no covenant to the effect that, on and from the date
of the execution of the said instrument, the suit property would vest in
the purchaser as an absolute owner thereof.
12. The attendant circumstances also throw light on the intent of the
parties. First and foremost the relationship of sister and brother
between the vendor and the purchaser. Second, the consideration of
Rs.5,000/- for an agricultural land admeasuring 50R with a right to
draw water from a well, appears to be prima facie inadequate. Third,
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though the Plaintiff was then major, it did not appear that the Plaintiff
was in any way associated with the said transaction.
13. Applying the tests to determine whether the transaction in
question is a mortgage by conditional sale or a sale with a condition to
repurchase, the Courts below have justifiably recorded concurrent
findings that the instrument in question is a mortgage by conditional
sale. Thus the submission on behalf of the Appellant that the Courts
below have misconstrued the nature of the instrument, does not merit
acceptance.
14. Resultantly, no substantial question of law arises for
consideration.
15. Hence the following order:
:ORDER:
(i) The Second Appeal stands dismissed.
(ii) In view of the dismissal of the Second
Appeal, the Interim Application No. 430 of
2024, also stands disposed.
[N. J. JAMADAR, J.]
