NDLI: Dharmaji Shankar Shinde and Others Vs. Rajaram Shripad Joshi (dead) Through Lrs. and Others

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Deeds and Documents Sale with a condition to repurchase Mortgage by conditional sale
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Transfer of Property Act, 1882 (4 of 1882)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Deeds and Documents – ‘Mortgage by conditional sale’ or ‘Sale with a condition to repurchase’ – Respondents-plaintiffs case was that the suit property was mortgaged by their father in favour of the predecessor-in-interest of the appellants-defendants for Rs.2500/- – Pursuant thereto, a Deed (Ex.P-73) was executed by the parties – According to the respondents the said deed was a deed of ‘mortgage by conditional sale’ with a condition that if the amount is not repaid within a period of five years from the date of execution of the deed, then the same would be treated as an absolute sale between the parties conferring absolute right of ownership on predecessor-in-interest of the appellants-defendants and his legal representatives – It was alleged that father of respondents failed to repay the money within the stipulated period – After death of their father, respondents-plaintiffs filed a suit for redemption of the mortgage and contended that their father had paid Rs.800 (Ex. P69) – Appellant-defendant defended the suit on the basis that transaction was a sale with condition to repurchase – Trial court dismissed the suit holding that the relationship of debtor and creditor was not established – First Appellate Court set aside the judgment of the trial court and held that (Ex. P-73) was a ‘mortgage by conditional sale’ – Aggrieved, appellants preferred second appeal before the High Court which was dismissed – On appeal, held: Whether the document is a ‘mortgage by conditional sale’ or ‘sale with a condition to repurchase’ is to be ascertained from the intention of the parties – It is trite law that the intention of the parties should be gathered from the recitals of the document itself – In the instant case, by perusal of Ex.P-73 it was clear that eight days prior to Ex.P-73, father of respondents had borrowed orally a sum of Rs.700/- – Later, when Ex.P-73 was executed, the earlier borrowed amount of Rs.700 was adjusted from the sale consideration of Rs.2500/- – The intention of the parties in putting an end to the debtor-creditor relationship with respect to the sum of Rs.700/- was clear from the recitals of the document i.e. adjustment of Rs.700/- from the total consideration of Rs.2500/- and parties intended to create a relationship of vendor and vendee by transfer of the suit property for a consideration of Rs.2500/- – Further, period of five years was fixed in Ex.P-73 within which father of respondents was to repay the said amount – Thus, clauses in Ex.P-73 were consistent with the intention of the parties that they made the transaction a conditional sale with an option to repurchase – Having not paid the amount within the stipulated period of five years, the plaintiffs lost their right to repurchase – Insofar as Ex. P-69 is concerned, it cannot be relied upon as corroborative piece of evidence to hold that part payment was made by father of respondents and that parties treated Ex.P-73 as ‘mortgage by conditional sale’ – Therefore, the Judgment of the High Court is set aside – Judgment of the trial court restored – Transfer of Property Act, 1882 – s.58(c).
Judge	Hon'ble Ms. Justice R. Banumathi
Neutral Citation	2019 INSC 555
Petitioner	Dharmaji Shankar Shinde And Others
Respondent	Rajaram Shripad Joshi (dead) Through Lrs. And Others
SCR	[2019] 6 S.C.R. 257
Judgement Date	2019-04-23
Case Number	7448

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Dharmaji Shankar Shinde and Others Vs. Rajaram Shripad Joshi (dead) Through Lrs. and Others

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