Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Mortgage by Conditional Sale Documents Deeds |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Deeds and Documents - Mortgage by conditional saleor transfer by way of sale with a condition to repurchase -Document described as sale deed transferring land belongingto plaintiff-appellant alongwith the fixtures and also handingover possession to defendant-respondent - Nature of - Held:For purpose of bringing a transaction within meaning of'mortgage by conditional sale', the first condition is that themortgagor ostensibly sells the mortgaged property on thecondition that on such payment being made, the buyer shalltransfer the property to the seller - Although there is apresumption that transaction is a mortgage by conditionalsale in cases where the whole transaction is in one document,but merely because of a term incorporated in the samedocument it cannot always be accepted that the transactionagreed between the parties was a mortgage transaction - Inthe instant case, the trial court committed grave error inconstruing the document as a mortgage and in holding thatplaintiff-appellant was entitled to decree of redemption - Thealleged sale document was executed in the year 1967 subjectto stipulation/condition that on receiving the sale amount ofRs. 3, 0001- within five years the land was to be returned to theplaintiff-vendor - A/so after transfer of the land, the defendant-respondent came in possession and used & enjoyed theproperty as an absolute owner - It was only after 11 years thatthe plaintiff-appellant filed suit alleging that the property wasmortgaged in favour of defendant/respondent with a condition to reconvey the land - Evidently, the transaction in questionwas an absolute sale with a condition of repurchase - But theplaintiff failed to get the land reconveyed within stipulatedperiod and thus lost her remedy - Transfer of Property Act,1882 - s.58(a) & (c). |
Judge | Hon'ble Mr. Justice M.Y. Eqbal |
Neutral Citation | 2013 INSC 377 |
Petitioner | Vanchalabai Raghunath Ithape (d) By Lr |
Respondent | Shankarrao Baburao Bhilare (d) By Lrs. And Others |
SCR | [2013] 8 S.C.R. 1028 |
Judgement Date | 2013-07-01 |
Case Number | 4833 |
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