PRAKASH (DEAD) BY LR.versusG. ARADHYA AND ORS.

               [2023] 12 S.C.R. 1034 : 2023 INSC 743


                            CASE DETAILS
                      PRAKASH (DEAD) BY LR.
                                     v.
                       G. ARADHYA AND ORS.
                      (Civil Appeal No. 706 of 2015)
                            AUGUST 18, 2023
           [HIMA KOHLI AND RAJESH BINDAL, JJ.]
                             HEADNOTES
     Issue for consideration: Transaction between the parties whether an
absolute sale of the property or a mortgage.
     Transfer of Property Act, 1882 – s.58(c) – Two documents executed
on same day, Sale Deed and Reconveyance Deed/agreement of buy back
deed, transaction if mortgage or absolute sale of the property:
      Held: Proviso to sub-section (c) of s.58 provides that no transaction
shall be deemed to be a mortgage, unless the condition is embodied in the
document which effects or purports to effect the sale – In the present case,
admittedly, there are two separate documents – Sale Deed was an absolute
sale for a total sale consideration of ` 5,000/- required by the vendor to
meet domestic expenses and to meet education expenses of his minor
son (appellant) and to discharge some debts – Possession of the property
was to be delivered on registration of the Sale Deed – The vendee was
entitled to get the mutation entered in her name and enjoy the property by
paying the taxes, if any – She would become an absolute owner thereof
from generation to generation – There were no encumbrances attached to
the property – Further, the agreement of buy back mentioned that after
registration of the Sale Deed, the vendor had requested the vendee to resell
the property within the time given – The vendee granted him five years’
time to repurchase the property in case sale consideration of ` 5000/- was
paid – It was agreed that the agreement shall cease immediately after expiry
of 5 years – Thus, in terms of the Sale Deed and the Reconveyance Deed,
reconsidered in the light of the enunciation of law, the same cannot be held
to be a transaction of mortgage of property – Sale of property initially, was
                                   1034
   PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                      1035


absolute – By way of execution of Reconveyance Deed on the same day,
the only right given to the appellants was to repurchase the property – No
error in the judgment of the High Court upholding the decree of the trial
Court by which the suit filed by the appellant for redemption of mortgage
was dismissed.
     Transfer of Property Act, 1882 – s.58(c) – Scope:
     Held: The proviso was added in s.58(c) so as to put at rest the
conflicting decisions on the issue – A deeming fiction was added in the
negative that a transaction shall not be deemed to be a mortgage unless the
condition for reconveyance is contained in the document which purports
to effect the sale.
       LIST OF CITATIONS AND OTHER REFERENCES
    Bishwanath Prasad Singh v. Rajendra Prasad and another (2006) 4
SCC 432: [2006] 2 SCR 566 – relied on.
      Indira Kaur (Smt.) and others v. Sheo Lal Kapoor (1988) 2 SCC
488; Sunil Kumar and another v. Ram Parkash and others (1988) 2 SCC
77: [1988] 2 SCR 623; Ramlal and another v. Phagua and others (2006)
1 SCC 168: [2005] 4 Suppl. SCR 331; Ahilyabai and others v. Shantabai
(Dead) and others (2001) 10 SCC 583; Pandit Chunchun Jha v. Sk. Ebadat
Ali [1955] 1 SCR 174; Mushir Mohd. Khan v. Sajeda Bano (2000) 3 SCC
536: [2000] 2 SCR 65; Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC
243: [2005] 3 SCR 521 – referred to.
      OTHER CASE DETAILS INCLUDING IMPUGNED
                ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 706 of 2015.
    From the Judgment and Order dated 09.12.2009 of the High Court of
Karnataka at Bangalore in RFA No.969 of 2000.
     Appearances:
   Mrs. Kiran Suri, Sr. Adv., Mrs. T S Shanthi, Narendra Kumar, Sanjeev
Kumar, Advs. for the Appellant.
    Aditya Sondhi, Sr. Adv., Chandan S. Rao, Ms. Rashi Rampal, Ms.
Meghana TM, Vikas Mehta, Advs. for the Respondents.
1036          SUPREME COURT REPORTS                          [2023] 12 S.C.R.



        JUDGMENT / ORDER OF THE SUPREME COURT
                                 JUDGMENT
       RAJESH BINDAL, J.
      1. The appellant has filed the present appeal before this Court
impugning the judgment1 of the High Court of Karnataka at Bangalore by
which the Appeal2 filed by the appellant against the judgment and decree
of the trial Court was upheld.
       FACTS
       2. The facts, as evident from the record, are that on 16.10.1963
a property measuring 30 ft. x 60 ft. was purchased by the father of the
appellant, Gangaramaiah, in the name of the appellant, who was minor at
that time. On 24.12.1973 the father of the appellant, Gangaramaiah sold
the aforesaid property to one Rudramma for a sum of ₹ 5000/-(Rupees Five
Thousand). The age of the appellant, who claimed himself to be minor at
that time, was mentioned as 13 years. On the same day, another unregistered
document was executed between the parties claiming to be Reconveyance
Deed in terms of which on the request of the vendor, the vendee had agreed
to re-transfer the property back within five years of the Sale Deed in case
the sale consideration of ₹ 5000/- (Rupees Five Thousand) is paid.
      3. A notice dated 24.11.1978 was got issued by the father of the
appellant to the vendee seeking execution of the Conveyance Deed back
in favour of the vendor in terms of the Reconveyance Deed executed on
24.12.1973. The same was replied to by the vendee-Rudramma through her
counsel on 02.12.1978 stating that the Sale Deed dated 24.12.1973 was not
a mortgage by conditional sale. It was an outright sale of the property. It was
admitted that on the same date, an agreement of reconveyance was entered
into. On 24.07.1978, a suit3 was filed by Rudramma seeking eviction of
the Gangaramaiah in terms of the Lease Agreement dated 24.12.1973 as he
had not been paid the rent. While reserving her rights in the aforesaid suit,
Rudramma stated in the reply to the notice that she is ready and willing to


1   Dated 09.12.2009 in RFA No.969/2000
2   O.S. No.3752/1987 dated 23.08.2000
3   SC No.3608/78 before the Small Cause Court, Bangalore.
    PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                       1037
                [RAJESH BINDAL, J.]

get the Conveyance Deed executed on receipt of ₹ 7000/- (Rupees Seven
Thousand).
      4. A suit was filed by Ganagaramaiah seeking permission from the
Court to mortgage the property of the minor. A public notice was issued
inviting objections. Vide order dated 27.09.1978 permission was granted
to execute fresh Mortgage Deed in order to discharge the earlier mortgage
for a sum of ₹ 7000/- (Rupees Seven Thousand). On 26.03.1987, the legal
heirs of Rudramma sold the property in-question in favour of defendant
no.4 in the suit, namely, N. Shashidar. Gangaramaiah died on 30.04.1987.
     5. A suit2 was filed by the appellant praying for various reliefs, which
was dismissed by the trial Court. The judgment of the trial Court was upheld
by the High Court.
     APPELLANT’S ARGUMENTS
      6. In the aforesaid factual matrix, Mrs. Kiran Suri, learned senior
counsel appearing for the appellant, submitted that the finding recorded
by the courts below, that the suit filed by the appellant-plaintiff was time
barred, is totally erroneous. The prayer in the suit was for redemption of
the mortgage. On interpretation of the documents, it is clearly made out that
the intention of the vendor was to mortgage the property. On the very same
date, the Reconveyance Deed was executed though separately, in terms of
which the vendee had agreed to re-transfer the property on returning back
the consideration money within a period of five years from the date of
execution of the Sale Deed. The terms mentioned in the document need to
be interpreted. It can be very well made out that, it was a mortgage and not
an agreement for re-purchase of the property. It was submitted that even
if under Section 58(c) of the 1882 Act4, it is provided that clauses to treat
the transaction of sale as a mortgage have to be in a single document, it is
not a pre-condition, as the intention of the parties can be inferred from two
separate documents executed on the same date.
     7. The finding recorded by the trial Court, as upheld by the High Court
regarding the suit being time barred, is totally erroneous. The case of the
appellant will not fall under Article 60 of the Schedule attached to the 1963


4   The Transfer of Property Act, 1882
1038          SUPREME COURT REPORTS                        [2023] 12 S.C.R.


Act5. Rather, it will fall under Article 61 thereof. It was not a simplicitor
case of challenging the Sale Deed executed by the guardian of the appellant
when at the relevant point of time, he was a minor. Rather it was a case
of redemption of mortgage for which limitation prescribed was 30 years.
      8. It was further submitted that the appellant was the absolute owner of
the property for which the Sale Deed was got registered by his father when
he was a minor. Considering his age at that time, it could not be established
that purpose of the sale of property was for the benefit of the minor. Even
otherwise, the onus to prove the same was on the alienee of the property,
which he had failed to discharge. A sale of property belonging to a minor
being without any legal necessity, deserved to be set aside.
      9. Further, argument raised is that a suit for possession filed by the
vendee in the year 1978, shows that the possession of the property always
remained with the vendor. This clearly establishes that it was not an outright
sale, rather it was a mortgage, which the father of the appellant could get
redeemed within a period of five years. The intention of the vendee is evident
from the fact that she started demanding ₹ 7,000/- as against ₹ 5,000/- as is
mentioned in the document at the time of execution of the Reconveyance
Deed. It was not disputed that the property in-question is a vacant plot and
the property tax thereof was not being paid by the appellant.
      10. Learned Senior counsel appearing for the appellant placed reliance
on the judgments of this Court in Indira Kaur (Smt.) and others v. Sheo Lal
Kapoor, (1988) 2 SCC 488; Sunil Kumar and another v. Ram Parkash
and others,(1988) 2 SCC 77; Ramlal and another v. Phagua and others,
(2006) 1 SCC 168; and Ahilyabai and others v. Shantabai (Dead) and
others, (2001) 10 SCC 583 in support of her arguments.
       RESPONDENTS’ ARGUMENTS
      11. On the other hand, Mr. Aditya Sondhi, learned Senior counsel,
appearing for the respondents, submitted that the argument raised by the
learned counsel for the appellant that it is a case of mortgage, is not made
out from the record. Section 58(c) of the 1882 Act 4 clearly provides that it
can be inferred from the document, in case it is a single document and the


5   The Limitation Act, 1963
   PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                           1039
               [RAJESH BINDAL, J.]

clauses are contained therein. In the case in hand, admittedly two separate
documents were executed. The prayer in the suit was not to declare that the
transaction between the parties was a mortgage. In the absence thereof, no
relief for redemption could be claimed directly. The suit filed by the appellant
is clearly barred by limitation. Though exact date of birth of the appellant has
not come on the record, however, his mother while appearing as PW-1, in
her cross-examination stated that he was born in December 1962. Meaning
thereby that he had attained the age of majority in the year 1980. The suit
having been filed in the year 1987 challenging the Sale Deed of 1973, was
thus, clearly time-barred. It was further submitted that the appellant or his
father who was the guardian had failed to avail of any appropriate remedy
in case, the vendee had refused to get the Sale Deed registered back in terms
of the Reconveyance Deed. Nothing hinges on the permission taken by the
father of the appellant for re-mortgaging the property in-question as it is not
disputed that at the time of sale of the property, permission was not taken.
      12. A suit was filed by the vendee seeking possession from the father
of the appellant and also payment of rent in terms of the Lease Deed dated
24.12.1973. The same was decreed in favour of the vendee. Though it
transpired at the time of the hearing that, further proceeding was taken by the
father of the appellant against the judgment in the aforesaid suit, however,
none of the parties was aware of the status thereof. The possession of the
property was delivered to the vendee at the time of execution of the Sale
Deed, as is even mentioned therein. The house tax was also being paid by
the vendee. The judgments relied upon by the appellant are distinguishable.
Reliance was placed upon the judgment of this Court in Bishwanath Prasad
Singh v. Rajendra Prasad and another, (2006) 4 SCC 432 wherein earlier
judgment of this Court in Ramlal’s (Supra), was distinguished.
     13. We have heard learned counsel for the parties and perused the
material available on record and referred to at the time of hearing.
     DISCUSSIONS
      14. At the very outset, before we deal with the arguments raised by
the parties, it may not be out of place if not mentioned here that some of the
relevant documents were not produced by the parties in evidence. Primarily,
onus thereof certainly falls on the appellant, who was the plaintiff as he
had to stand on his own legs. Some of these documents are, the Sale Deed
1040          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


dated 16.10.1963 by which the property in-question was purchased by his
father in his name; the notice got issued by the father of the appellant on
24.11.1978 to the vendee qua execution of the Sale Deed in terms of the
Reconveyance Deed and the Lease Deed which was allegedly executed by
the vendee in favour of the father of the appellant on 24.12.1973 regarding
the property in-question.
      15. Insofar as the age of the appellant is concerned, though certain
dispute was raised by the appellant claiming that he was 3 years of
age when the Sale Deed was got registered by his father in favour of
Rudramma on 24.12.1973, however, the fact is otherwise. It came in the
cross-examination of the mother of the appellant who appeared as PW-1,
that the appellant was born in December 1962. That means that he attained
the age of majority in the year 1980. This fact is further corroborated from
the suit filed by the appellant in the year 1987 wherein he claimed himself
to be 24 years of age.
      16. In the civil suit, though N. Shashidar was impleaded as defendant
no.4, however, the Sale Deed executed by Rudramma in his favour was not
challenged. The following prayers were made in the suit:
       “Wherefore the plaintiff prays for judgment and decree against the
       defendants:
       a)   declaring that the document dated 24-12-73 styled as a sale deed
            executed by late Gangaramaiah in favour of late Rudramma
            conveying the schedule property in her favour and registered as
            No.3266/73-74 at pages 172 to 174 in volume No.400 of Book-l
            in the office of the Sub-Registrar, Sreerampuram-Bangalore, is
            null and void and not binding on the plaintiff and does not convey
            any right, title or interest in respect of the schedule property to
            the defendants herein claiming through late Smt. Rudramma;
       b)   alternatively, declaring that the plaintiff is entitled to redeem the
            Mortgage of the schedule property under the above-mentioned
            sale deed coupled with the agreement of Reconveyance on
            payment of Rs.5,000/- to the defendants; on receipt of this sum,
            the defendants shall execute the deed of redemption and return all
            the documents of title of the schedule property in their custody.
   PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                          1041
               [RAJESH BINDAL, J.]

     c)    a decree for permanent injunction restraining the defendants,
           or any other person or persons claiming through them from
           interfering in any manner with the peaceful possession and
           enjoyment of the schedule property by the plaintiff; and
     d)    a decree for costs of this suit and grant other relief/relief’s as
           this Hon’ble Court deems fit to grant in the circumstances of the
           case, in the interests of justice and equity.”
       17. A perusal of the prayers made in the suit shows that the same was
filed by the appellant against the legal heirs of late Rudramma (vendee)
and N. Shashidar in whose favour legal heirs of Rudramma executed the
Sale Deed in-question on 26.03.1987. The first prayer was for declaring
the document dated 24.12.1973, styled as a Sale Deed executed by late
Gangaramaiah in favour of late Rudramma being null and void and not
binding on the appellant. In the alternative, prayer was made for declaring
that the appellant is entitled to redeem the mortgage of the scheduled property
in terms of the Sale Deed and the agreement of reconveyance on payment
of ₹ 5,000/-. Further prayer was made for protecting the possession of the
appellant-plaintiff. The trial Court initially framed the following issues:
     “1. Does Plaintiff prove his title to the suit property?
     2.    Does plaintiff further prove that his father Sri Gangaramaiah was
           not competent to execute the Sale Deed dt.24.12.73 in favour of
           Smt. Rudramma?
     3.    Does plaintiff further prove that there was no legal necessity
           for Gangaramaiah to sell the suit property in favour of Smt.
           Rudramma?
     4.    Does plaintiff prove that the transaction as per the Sale Deed
           dt.24.12.73 was in the nature of mortgage?
     5.    Does plaintiff prove his lawful possession of the suit property?
     6.    Is plaintiff entitled for declaration of declaring of Sale Deed dt.
           24.12.73 executed by Gangaramaiah in favour of Smt. Rudramma
           as null and void and not binding on the plaintiff?
     7.    Is plaintiff entitled to redeem the mortgage of the suit property?
1042          SUPREME COURT REPORTS                        [2023] 12 S.C.R.


       8.   Is plaintiff entitled for permanent injunction sought for?
       9.   What order or decree?”
     17.1. Following additional issue was framed by the trial Court on
27.11.1993:
                     “Whether the suit is barred by limitation?”
     17.2. Thereafter, following additional issues were framed by the trial
Court on 16.08.1994 :
       “1. Do the defendants prove that the defence in regard to the benami
       nature of the transaction between late Gangaramaiah and late
       Smt. Rudramma is not hit by Section 4 of the Benami Transaction
       (Prohibition) Act, 1988?
       2. Do the defendants prove that the transaction between late
       Gangaramiah and late Smt. Rudramma is an absolute sale and is valid
       according to Sec.8 of the Hindu Minority & Guardianship Act, 1956?”
     18. The findings on the above issues recorded by the trial Court, as
mentioned in para 20 of the judgment, are as under:
       “20. By findings on the above issues are
       Issue No. 1                         -       Negative
       Issue No. 2                         -       Negative
       Issue No. 3                         -       Negative
       Issue No. 4                         -       Negative
       Issue No. 5                         -       Negative
       Issue No. 6                         -       Negative
       Issue No. 7                         -       Negative
       Issue No. 8                         -       Negative
       Addl. Issue dt. 27.11.93            -       Affirmative
       Addl. Issue No.1 dt. 16.08.94       -       Doesn’t arise
       Addl. Issue No.2 dt. 16.8.94        -       Affirmative”
   PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                         1043
               [RAJESH BINDAL, J.]

      19. In the appeal filed by the appellant against the judgment and decree
of the trial Court, following two questions were framed by the High Court:
     “1. Whether the trial Court was justified in holding the document
         dated 20.12.1973 [registered on 24.12.1973] as sale deed and
         consequently rejecting the claim of the plaintiff that the said
         sale deed if read along with the agreement of buy back dated
         24.12.1973 would not constitute mortgage of suit schedule
         property in favour of Smt. Rudramma?.
     2.    Whether the trial Court was justified in dismissing the suit holding
           that the documents dated 20.12.1973 [registered on 24.12.1973]
           as absolute sale deed and consequently rejecting the prayer of
           the plaintiff for redemption of mortgage?”
     20. Both the aforesaid questions were decided against the appellant
by the High Court.
      21. A perusal of the aforesaid questions framed by the High Court
shows that, these are co-related. The core issue was as to whether the
transaction between the parties was an absolute sale of the property or it was
a mortgage. The issue of limitation, with reference to the challenge to the
Sale Deed having been decided against the appellant by the trial Court, was
not raised before the High Court, as is evident from the questions framed.
Hence, this aspect could not be addressed before this Court.
      22. The argument raised by Mrs. Kiran Suri, learned Senior counsel
for the appellants, on the aforesaid issue was that on a perusal of the
documents the Court can always opine as to whether the intention of the
party was to get an absolute Sale Deed registered or it was a mortgage.
The submission was that, both the documents were executed on the same
day. Reconveyance of the property in favour of the vendor, father of the
appellant, on the payment of the same amount of consideration within five
years, would clearly lead to an inference that the said transaction was a
Mortgage Deed. Coupled with the fact that possession of the property had
always remained with the appellant, otherwise the same would have been
delivered to the vendee.
     23. Before we appreciate the arguments raised at the Bar, we may refer
to Section 58 of the 1882 Act4wherein the terms: “mortgage”, “mortgagor”
1044          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


and “mortgagee” etc. have been defined. Sub-section (c) which deals with
“mortgage by conditional sale” relevant for the point in issue, are extracted
below:
       “58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money”
       and “mortgage-deed” defined.-
       (a)        ×××              ×××              ×××
       (b)        ×××              ×××              ×××
       (c) Mortgage by conditional sale. - Where, the mortgagor ostensibly
       sells the mortgaged property-
       On 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 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.”
      24. A perusal of the aforesaid proviso to sub-section (c) of Section
58 of the 1882 Act4 provides that no transaction shall be deemed to be a
mortgage, unless the condition is embodied in the document which effects
or purports to effect the sale. It is the undisputed case in hand that it was not
a single document, the conditions contained wherein have to be considered
by this Court to opine that the transaction was not a sale, but a mortgage.
Admittedly, there are two separate documents.
      25. Similar argument, where two separate documents were executed,
came up for consideration before this Court in Bishwanath Prasad Singh’s
case (supra). One was the Sale Deed and the second was the agreement
for sale. Both were executed on the same date. It was opined therein that to
appreciate a document its contents are to be read in entirety and the intention
   PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                          1045
               [RAJESH BINDAL, J.]

of the parties is to be gathered from the language used therein. Para 16 of
the aforesaid judgment is referred to for ready reference:
     “16. A deed as is well known must be construed having regard to the
     language used therein. We have noticed hereinbefore that by reason
     of the said deed of sale, the right, title and interest of the respondents
     herein was conveyed absolutely in favour of the appellant. The sale
     deed does not recite any other transaction of advance of any sum by the
     appellant to the respondents which was entered into by and between the
     parties. In fact, the recitals made in the sale deed categorically show
     that the respondents expressed their intention to convey the property
     to the appellant herein as they had incurred debts by taking loans from
     various other creditors.”
      25.1. Further, in the aforesaid judgment, this Court while interpreting
the terms of the agreement executed along with the Sale Deed and opined
that the same cannot be treated to be a mortgage as the expression used
therein were ‘vendor’, ‘vendee’, ‘sold’ and ‘consideration’. Fixed period
was granted for execution of the Sale Deed.
      25.2. The scope of Section 58(c) of the 1882 Act 4 was considered in
detail in paras 27 to 33 thereof which are extracted below:
     “27. A bare perusal of the said provision clearly shows that a mortgage
     by conditional sale must be evidenced by one document whereas a
     sale with a condition of retransfer may be evidenced by more than one
     document. A sale with a condition of retransfer, is not mortgage. It is
     not a partial transfer. By reason of such a transfer all rights have been
     transferred reserving only a personal right to the purchaser (sic seller),
     and such a personal right would be lost, unless the same is exercised
     within the stipulated time.
     28. In Pandit Chunchun Jha v. Sk. Ebadat Ali [(1955) 1 SCR 174 :
     AIR 1954 SC 345] this Court clearly held: (SCR p. 177)
           “We think that 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 must be decided on its own facts.”
1046          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


       29. Yet again in Mushir Mohd. Khan v. Sajeda Bano [(2000) 3 SCC
       536] this Court upon construing Section 58(c) of the Transfer of
       Property Act opined: (SCC pp. 541-42, para 9)
            “9. The proviso to this clause was added by Act 20 of 1929
            so as to set at rest the conflict of decisions on the question
            whether the conditions, specially the condition relating to
            reconveyance contained in a separate document could be taken
            into consideration in finding out whether a mortgage was intended
            to be created by the principal deed. The legislature enacted that
            a transaction shall not be deemed to be a mortgage unless the
            condition for reconveyance is contained in the document which
            purports to effect the sale.”
       30. Referring to Chunchun Jha [(1955) 1 SCR 174: AIR 1954 SC
       345] it was held: (SCC p. 544, para 14)
            “14. Applying the principles laid down above, the two documents
            read together would not constitute a ‘mortgage’ as the condition
            of repurchase is not contained in the same documents by which
            the property was sold. The proviso to clause (c) of Section 58
            would operate in the instant case also and the transaction between
            the parties cannot be held to be a ‘mortgage by conditional sale’.”
       31. In Umabai v. Nilkanth Dhondiba Chavan [(2005) 6 SCC 243]
       wherein one of us was a party, this Court held: (SCC p. 254, para 21)
            “21. There exists a distinction between mortgage by conditional
            sale and a sale with a condition of repurchase. In a mortgage,
            the debt subsists and a right to redeem remains with the debtor;
            but a sale with a condition of repurchase is not a lending and
            borrowing arrangement. There does not exist any debt and no
            right to redeem is reserved thereby. An agreement to sell confers
            merely a personal right which can be enforced strictly according
            to the terms of the deed and at the time agreed upon. Proviso
            appended to Section 58(c), however, states that if the condition
            for retransfer is not embodied in the document which effects or
            purports to effect a sale, the transaction will not be regarded as a
            mortgage. (See: Pandit Chunchun Jha v. Sk. Ebadat Ali [(1955) 1
PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                       1047
            [RAJESH BINDAL, J.]

      SCR 174 : AIR 1954 SC 345] , Bhaskar Waman Joshi v. Narayan
      Rambilas Agarwal [(1960) 2 SCR 117 : AIR 1960 SC 301] , K.
      Simrathmull v. S. Nanjalingiah Gowder [1962 Supp (3) SCR
      476 : AIR 1963 SC 1182] , Mushir Mohd. Khan [(2000) 3 SCC
      536] and Tamboli Ramanlal Motilal [Tamboli Ramanlal Motilal
      v. Ghanchi Chimanlal Keshavlal, 1993 Supp (1) SCC 295] .)”
 32. The High Court relied upon Indira Kaur v. Sheo Lal Kapoor
 [(1988) 2 SCC 488 : AIR 1988 SC 1074]. Therein the Court took
 into consideration the factors adumbrated therein, particularly, a
 long stipulated period of 10 years for conveying the property and the
 vendee was prohibited from selling and parting with his right, title and
 interest for 10 years. The vendor was allowed to occupy the property
 as a tenant on payment of Rs 80 per month. No order of mutation was
 passed in his favour. It was held:
      “6. … In the present case having regard to the facts and
      circumstances highlighted in the course of the discussion
      pertaining to the question as to whether or not the transaction was
      a transaction of mortgage having regard to the real intention of
      the parties it would be difficult to hold that the agreement to sell
      executed by the defendant in favour of the plaintiff was by way of
      a ‘concession’. It was a transaction entered into by the defendant
      who was a hard-headed businessman and the documents in
      question have been carefully framed in legal terminology taking
      into account the relevant provisions of law. The transaction also
      discloses the awareness of the defendant about Section 58(c) of
      the Transfer of Property Act as is evident from the fact that the
      reconveyance clause is not embodied in the sale deed itself. In the
      agreement to sell, no reference has been made to the transaction
      of sale though it has been executed contemporaneously.
      The defendant who has permitted the plaintiff to continue in
      possession on payment of rent equivalent to about 13½ per cent
      interest and was evidently aware of all the dimensions of the
      matter would not have granted any concession or executed the
      agreement by way of a concession. The agreement was executed
      evidently because the plaintiff would not have executed the sale
      deed unless an agreement to sell by a contemporaneous document
1048           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


            was also executed to enable the plaintiff to enforce specific
            performance within ten years. It was therefore a transaction
            entered into with open eyes by the defendant and there was no
            question of granting any concession.”
       33. In the instant case, as noticed hereinbefore, the transfer is complete
       and not partial, no stipulation has been made that the appellant cannot
       transfer the property. Not only that, the appellant was put in possession
       of the land, his name was also mutated.”
      25.3. A perusal of the aforesaid paras of the judgment shows that the
proviso was added in Section 58(c) of the Act4 vide Act No.20 of 1929, so
as to put at rest the conflicting decisions on the issue. A deeming fiction was
added in the negative that a transaction shall not be deemed to be a mortgage
unless the condition for reconveyance is contained in the document which
purports to effect the sale.
      25.4. The judgment of this Court in Umabai v. Nilkanth Dhondiba
Chavan, (2005) 6 SCC 243, has also been referred to, which defines the
distinction between mortgage by conditional sale and a sale with a condition
of repurchase. In a mortgage, the debt subsists and a right to redeem remains
with the debtor; but a sale with condition of repurchase is not a lending
and borrowing arrangement. Proviso to Section 58(c) of the 1882 Act 4 was
referred to in the aforesaid judgment to hold that if the condition for re-
transfer is not embodied in the document which effects or purports to effect
a sale, the transaction will not be regarded as a mortgage. The judgment of
this Court in Ramlal’s case (supra), relied upon by learned Senior counsel
for the appellant, was specifically dealt with and distinguished in paras
34 and 35 thereof in Bishwanath Prasad Case (supra) and the same are
extracted below:
       “34. In Ramlal v. Phagua this Court having regard to the peculiar fact
       situation obtaining therein opined: (SCC p. 173, para 18)
            “18. In our opinion, agreement to reconvey the property will
            not ipso facto lead to the conclusion that the sale is nominal and
            in view of the stand of Defendant 8, as also of the fact that the
            property worth Rs 700 has been purportedly sold for Rs 400, we
            are of the considered opinion that the sale deed dated 1-12-1965
            did not convey any title to Defendant 8. It is well settled by a
   PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                          1049
               [RAJESH BINDAL, J.]

          catena of decisions that the vendor cannot convey to the vendee
          better title than she herself has.”
     35. As of fact, it was held therein that the sale deed in question was not
     a real sale deed but was by way of a surety. In that case, furthermore,
     the defendant categorically admitted that the plaintiff had taken loan.
     It is in that situation, the transaction was held to be a mortgage. Apart
     from it, there were other circumstances which led the court to arrive
     at the said conclusion. The said decision, therefore, cannot have any
     application in the instant case.”
     26. Before we proceed to consider the legal effect thereof, we find it
appropriate to extract the contents of the two documents. The contents of
the Sale Deed are extracted below:
           “On this 24th day of December, 1973 I, Gangaramaiah, S/o.
     late Kambaiah, residing at No.62, Hosaguddadahalli, Mysore Road,
     Bangalore City on behalf of minor son Prakashaiah, aged about 13
     years as his guardian and father is executing this Absolute Sale Deed
     in favour of Smt. Rudramma, W/o. Sri Gangappa, aged about 48 years,
     residing at No. 68, Nehru Road, Hosaguddadahalli, Mysore Road,
     Bangalore City as follows:-
           The schedule property mentioned below was acquired by us
     from Smt. Sharadamma, S/o P.V. Raghavendra Naidu and her children
     under a registered sale dated 16-10-1963 registered as Document No.
     5676 of Book-l in Volume No. 2332 at pages 238-241 registered at
     the office of the Sub-Registrar, Bangalore North Taluk and ever since
     the possession of the property is with us. In order to meet domestic
     expenses and to meet the education of the minor son and also to
     discharge some of the petty debts the schedule property is sold for a
     sale consideration of Rs.5,000/-. I have received a sum of Rs.3,000/- in
     the presence of the witnesses and also agreed to receive the remaining
     sale consideration of Rs.2,000/- at the time of the registration of
     this sale deed in the presence of the Sub- Registrar. Thus, total sale
     consideration of Rs.5,000/- is paid to me. Therefore, on this day of the
     registration the possession of the schedule property is delivered to you.
     Here afterwards you can change Katha in respect of the schedule site in
     your name and you are at liberty to enjoy all such resources available/
1050          SUPREME COURT REPORTS                         [2023] 12 S.C.R.


       standing over the schedule site by paying tax, cess etc., and you shall
       enjoy the schedule site as the absolute owner thereof from generation
       to generation. There are no other claimants, legal heirs and there is no
       charge such as the payment of maintenance, Shreedhan rights, minor
       disputes, court decrees, attachment etc. In the event of any dispute,
       I will undertake to resolve them at my cost. I have handed over the
       sale deed dated 16-10-1963 and the Survey Endorsement, Tax paid
       receipts, Katha Endorsements.”
     27. The contents of the reconveyance/agreement of buy back deed
dated 24.12.1973 are extracted below:
            “On this 24th day of December, 1973 I, Smt. Rudramma, W/o. Sri
       Gangappa residing at No. 68, Nehru Road, Hosaguddadahalli, Mysore
       Road, Bangalore City is executing this Reconveyance Agreement in
       favour of Sri. Gangaramaiah, S/o. late Kambaiah, residing at No.62,
       Hosaguddadahalli, Mysore Road, Bangalore City as follows:-
             You are aware that the property mentioned under the schedule
       given below was sold and registered by you in my name for a sum of
       Rs.5,000/- at the office of the Sub-Registrar, Srirampuram, Bangalore
       City on 24-12-1973 which is registered as Document No. 3265, in
       Book-l. Since you requested me to resell the schedule property but I
       permitted you to repurchase the schedule property within a given time,
       I am granting you 5 years of time for you to repurchase the same. In the
       event, you pay me the sale consideration of Rs.5,000/-, I will reconvey
       the schedule property in your favour. This agreement shall cease on
       the next day of the expiry of 5 years. At the time of repurchase you
       must bear the registration charges.”
      28. In the case in hand, the specific term used in the document
is “reconveyance agreement” executed by Rudramma in favour of
Gangaramaiah. It is clearly mentioned therein that the property in-question
had already been sold and registered in the name of Rudramma. On a request
made by Gangaramaiah, the right to purchase the property was given within
a period of five years on payment of sale consideration of ₹ 5,000/- (Rupees
Five Thousand). The agreement states that it shall cease to have effect on
expiry of a period of five years.
   PRAKASH (DEAD) BY LR. v. G. ARADHYA AND ORS.                          1051
               [RAJESH BINDAL, J.]

      29. A perusal of the contents of the Sale Deed shows that it is clearly
mentioned therein that the same was an absolute sale for a total sale
consideration of ₹ 5,000/- (Rupees Five Thousand) required by the vendor
to meet domestic expenses and to meet education expenses of his minor
son and to discharge some debts. Total sale consideration was ₹ 5,000/-
(Rupees Five Thousand). Out of this amount, a sum of ₹ 3,000/- (Rupees
Three Thousand) was received earlier and ₹ 2,000/- (Rupees Two Thousand)
was to be received in the presence of the Sub-Registrar at the time of the
registration of the Sale Deed. Possession of the property was to be delivered
on registration of the Sale Deed. The vendee was entitled to get the mutation
entered in her name and enjoy the property by paying the taxes, if any. She
would become an absolute owner thereof from generation to generation.
There were no encumbrances attached to the property.
      30. The agreement of buy back dated 24.12.1973 mentioned, that after
registration of the Sale Deed, the vendor had requested the vendee to resell
the property within the time given. The vendee granted him five years’ time
to repurchase the property in case sale consideration of ₹ 5000/- (Rupees Five
Thousand) is paid. It was agreed that the agreement shall cease immediately
after expiry of 5 years. It further mentions that at the time of repurchase,
registration expenses are to be borne by the father of the appellant, who had
to get the Sale Deed registered back.
      31.In terms of the Sale Deed and the Reconveyance Deed, reconsidered
in the light of the enunciation of law, as referred to above, in our opinion,
the same cannot be held to be a transaction of mortgage of property. Sale
of property initially, was absolute. By way of execution of Reconveyance
Deed, namely, on the same day, the only right given to the appellants was
to repurchase the property.
     32. For the aforementioned reasons, we do not find any error in the
judgment and order of the High Court. The appeal is accordingly dismissed.
There shall be no order as to costs.


Headnotes prepared by:                                         Appeal dismissed.
Divya Pandey