VANCHALABAI RAGHUNATH ITHAPE (D) BY LRversusSHANKARRAO BABURAO BHILARE (D) BY LRS. AND OTHERS

                         (2013) 8 S C.R 1028


A        VANCHALABAI RAGHUNATH ITHAPE {D) BY LR
                                    v.
      SHANKARRAO BABURAO BHILARE (D) BY LRS. AND
                          OTHERS
              (Civil Appeal No. 4833 of 2013)
B
                             JULY 1, 2013

              [P. SATHASIVAM AND M.Y. EQBAL, JJ.]

          Deeds and Documents - Mortgage by conditional sale
C   or transfer by way of sale with a condition to repurchase -
    Document described as sale deed transferring land belonging
    to plaintiff-appellant alongwith the fixtures and also handing
    over possession to defendant-respondent - Nature of - Held:
    For purpose of bringing a transaction within meaning of
o   'mortgage by conditional sale', the first condition is that the
    mortgagor ostensibly sells the mortgaged property on the
    condition that on such payment being made, the buyer shall
    transfer the property to the seller - Although there is a
    presumption that transaction is a mortgage by conditional
E   sale in cases where the whole transaction is in one document,
    but merely because of a term incorporated in the same
    document it cannot always be accepted that the transaction
    agreed between the parties was a mortgage transaction - In
    the instant case, the trial court committed grave error in
F   construing the document as a mortgage and in holding that
    plaintiff-appellant was entitled to decree of redemption - The
    alleged sale document was executed in the year 1967 subject
    to stipulation/condition that on receiving the sale amount of
    Rs. 3, 0001- within five years the land was to be returned to the
G   plaintiff-vendor - A/so after transfer of the land, the defendant-
    respondent came in possession and used & enjoyed the
    property as an absolute owner - It was only after 11 years that
    the plaintiff-appellant filed suit alleging that the property was
    mortgaged in favour of defendant/respondent with a condition

H                                 1028
VANCHALABAIRAGHUNATHITHAPE(D)BYLR.v.SHANKARRAO            1029
           BABUR.A.O BHILARE (0) BY LRS.

to reconvey the land - Evidently, the transaction in question     A
was an absolute sale with a condition of repurchase - But the
plaintiff failed to get the land reconveyed within stipulated
period and thus lost her remedy - Transfer of Property Act,
1882 - s.58(a) & (c).
                                                                  B
     The plaintiff-appellant owned certain landed property.
On 12.7.1967, she executed a deed (Ex.31) in respect of
the said land in favour of defendant No.1-respondent no.1
for a consideration of Rs.3,000/-, by which the land along
with 4 annas share in the mango trees was transferred             C
to defendant No.1 and possession of the same was also
handed over, with a specific stipulation to the effect that
the land was sold on the condition that after receiving
Rs.3,000/- in lumpsum within 5 years before end of any
Falgun month by the defendant, the land was to be
returned to the plaintiff. The plaintiff's case was that it was   D
a mortgage transaction and the land was to be returned
by the original defendant after receiving the said
consideration of Rs.3,000/- within 5 years. On 20.7.1979,
plaintiff issued notice calling upon the defendant to re-
convey the property after accepting the amount. Upon              E
non-compliance, plaintiff filed suit for redemption of the
property against defendant No.1 .. The defendant No.1
filed written statement contending that the transaction in
question (Exh.31) was not a mortgage transaction, but
was that of outright sale. According to him, the plaintiff        F
had sold the suit property to him as per the said sale
deed, but only as a concession the period of 5 years was
mentioned in the deed to re-convey the said suit property
and since there was no repayment in 5 years no re-
conveyance could be claimed. The trial court, however,            G
did not consider the deed to be a sale transaction and
held it to be a mortgage transaction by conditional sale.
The trial court also answered the issue "whether
defendant No.1 proved that time was the essence of the
said contract ... " in negative. The suit of the plaintiff for    H
    1030   SUPREME COURT REPORTS              [2013] 8 S.C.R.


A redemption was accordingly decreed by the trial court
  declaring that the plaintiff was entitled to redeem the suit
  property after paying the amount of Rs.3,000/- to the
  defendant. The first appellate court set aside the decree
  of the trial court holding that the transaction in question
B was an absolute sale with a condition of repurchase, but
  the plaintiff failed to get the land re-conveyed within
  stipulated period. The High Court did not interfere with
  the findings of fact recorded by the first appellate court,
  and therefore the present appeal.
c       The question for consideration in the instant appeal
    was whether the transaction in question was mortgage
    transaction or a sale transaction with a condition of
    repurchase.

D       Dismissing the appeal, the Court

       HELD: 1.1. The document in question has been
  described as Sale Deed transferring the land along with
  the fixtures and possession was handed over-to the
  defendant. From a perusal of Section 58(a) and (c) of the
E Transfer of Property Act, 1882, especially, Section 58(c},
  it is evidently clear that for the purpose of bringing a
  transaction within the meaning of 'mortgage by
  conditional sale', the first condition is that the mortgagor
  ostensibly sells the mortgaged property on the condition
F that on such payment being made, the buyer shall
  transfer the property to the seller. Although there is a
  presumption that the transaction is a mortgage by
  conditional sale in cases where the whole transaction is
  in one document, but merely because of a term
G incorporated in the same document it cannot always be
  accepted that the transaction agreed between the parties
  was a mortgage transaction. [Para 12 & 14] [1038-F; 1040-
  B-D]

H       1.2. In the instant case, the trial court committed
 VANCHALABAI RAGHUNATH ITHAPE (D) BY LR. v. SHANKARRAO    1031
              BABURAO BHILARE (D) BY LRS.

grave error in construing the document and erroneously            A
held that the transaction is mortgage and hence, the
plaintiff is entitled to decree of redemption. The alleged
sale document was executed in the year 1967 transferring
the suit property by way of sale subject to one stipulation/
condition that on receiving the sale amount of Rs. 3,000/         B
- within five years the land was to be returned to the
plaintiff-vendor. It is also not in dispute that after transfer
of the land the defendant-respondent No. 1 came in
possession and used & enjoyed the suit property as an
absolute owner. It was only after 11 years that the               c
plaintiff-appellant filed the suit alleging that the suit
property was mortgaged in favour of the defendant/
respondent No.1 with a condition to reconvey the land.
In the aforesaid premises, there is no reason to interfere
with the findings recorded by the first appellate court. The      0
High Court has rightly not interfered with the findings of
fact recorded by the first appellate court. [Paras 16, 19
and 20] [1040-G-H; 1043-C-F]

    Tamboli Raman/al Motila/ (Dead) by LRs. v. Ghanchi
Chimanlal Keshav/al (Dead) by LRs. & Another AIR 1992 SC          E
1236: 1993 (1) Suppl. sec 295 - relied on.

    Vasudeo Bhikaji Joshi v. Bhau Lakshman Ravut &
Others ILR 1897 XXI 528 - referred to.
                                                                  F
   Williams vs. Owen, 1840, 5 My. & Cr.303         = English
Reports 41 (Chancery) 386 - referred to.

                     Case Law Reference:
    English Reports 41               referred to     Para 15
                                                                  G
    (Chancery) 386
     ILR 1897 XXI 528
    (Bombay High Court)              referred to     Para 17
    1993 (1) Suppl. sec 29           relied on       Para 18
                                                                  H
    1032    SUPREME COURT REPORTS                    [2013] 8 S.C R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4833 of 2013.

       From the Judgment and Order dated 19.07 .2004 of the
  High Court of Judicature at Bombay in Second Appeal No. 295
B of 1988.

        Sushil Karanjkar, Sandeep Singh, Nikhilesh Kumar,
    Venkateswara Rao Anumolu for the Appellant.

        Vinay Navare, Keshav Ranjan, Satyajeet Kumar, Abha R
c   Sharma for the Respondents.

        The Judgment of the Court was delivered by

         M.Y. EQBAL, J. 1. Delay condoned. Leave granted

D      2. This appeal by special leave is directed against the
  judgment and order dated 19.7.2004 passed by the High Court
  of Judicature at Bombay in Second Appeal No.295 of 1988,
  whereby the second appeal filed by the plaintiff-appellant was
  dismissed and the order of the first appellate court was
E confirmed. The appellant is the legal heir of the original plaintiff/
  widow who was admittedly the owner of the suit property
  bearing Block No.126 of village Degaon admeasuring 62 R.

        3. The facts of the case can be summarized as under:

F      4. Plaintiffs case is that a deed (Ex.31) was executed by
  Vanchalabai Raghunath lthape (the original plaintiff - now
  deceased and represented through her legal representative) in
  favour of defendant No. 1 Shankarrao Baburao Bhilare (the
  original defendant/respondent No. 1 herein and now
G represented through his legal representatives) on 12.7.1967 for
  a consideration of Rs.3,000/-, by which the suit land along with
  4 annas share in the mango trees was transferred to defendant
  No.1 and possession of the same was handed over, with a
  specific stipulation to the effect that the land was sold on the
H condition that after receiving Rs.3,000/- in lump sum within 5
 VANCHALABAI RAGHUNATH ITHAPE (D) BY LR. v. SHANKARRAO 1033
       BABURAO BHiLARE (D) BY LRS. [M.Y EQBAL. J.]

years before end of any Falgun month by the defendant, the land         A
was to be returned to the plaintiff. The plaintiff's case is that it
was a mortgage transaction and the land was to be returned
by the original defendant after receiving the said consideration
of Rs.3,000/- within 5 years. The plaintiff further alleged that the
period of 5 years was nominal as there was no condition that            B
after 5 years the sale would become final. According to the
plaintiff, till 1978 the defendant was agreeing to redeem the suit
property, but thereafter he started avoiding to do it. On
20. 7 .1979, plaintiff issued a notice calling upon defendant to
reconvey the suit property after accepting the amount. Upon             c
non-compliance, plaintiff filed a suit being RCS No.226 of 1979
for redemption of the suit property against defendant No.1 and
his brothers/relatives as a suit for partition, which also included
the suit property, was stated to be pending between them.
However, only defendant No.1 contested the suit by filing written
                                                                        0
statement contending that the transaction in question (Exh.31)
is not a mortgage transaction, but was that of outright sale. He
denied of having any relationship of mortgagee and mortgagor
between him and the plaintiff. According to him, the plaintiff had
sold the suit property to him as per the said sale deed, but only       E
as a concession the period of 5 years was mentioned in the
deed to reconvey the said suit property and since there was
no repayment in 5 years no re-conveyance could be claimed.

      5. Considering the pleadings and evidence tendered by
the parties, the trial court opined that the suit land was originally   F
owned by the plaintiff and after execution of the said deed,
possession is with the defendant. On perusing said Exhibit 31,
the trial court found it in the nature of the sale deed, but in the
last paragraph of the said deed, there is a mention that the said
amount of Rs.3,000/- was to be repaid by the plaintiff within the       G
period of 5 years at the end of Falgun, and that at that time the
defendant was to accept the said amount and to reconvey the
suit land thereafter. Considering the said recital coupled with
the evidence of the defendant and provisions of Section 58(c)
of the Transfer of Property Act, 1882, the trial court did not          H
    1034    SUPREME COURT REPORTS                  [2013] 8 S.C.R


A consider it to be a sale transaction and held it to be a mortgage
  transaction by conditional sale. The trial court also answered
  the issue "whether defendant No.1 proved that time was the
  essence of the said contract ... " in negative. The suit of the
  plaintiff for redemption was accordingly decreed by the trial
B court declaring that the plaintiff is entitled to redeem the suit
  property after paying the amount of Rs.3,000/- to the defendant.

        6. Aggrieved by aforesaid judgment and order, the
  defendant preferred first appeal before the District Judge,
  Satara, who, after hearing both the parties, allowed the appeal
C holding that there was no relationship of debtor and creditor
  between the parties nor it was it the case of the plaintiff that
  the defendant was known to her before the transaction and thus
  the transaction in question was an absolute sale with a condition
  of repurchase, but the plaintiff failed to get the land reconveyed
D within stipulated period.

        7. The plaintiff took exception to the aforesaid judgment
  by filing second appeal before the High Court raising severai-
  contentions. The High Court dismissed the second appeal
E mainly relying on the observations made by the first appellate
  court that admittedly there was no relationship of debtor and
  creditor between the parties nor was it the case of the plaintiff
  that the defendant was known to her before the transaction was
  settled and there was nothing on record to show that the said
F observation was incorrect and thus the document in question
  was of absolute sale with condition of repurchase. The High
  Court held that the findings recorded by the first appellate court
  were neither perverse nor illegal and, therefore, no interference
  was called for in the second appeal under Section 100 of the
G Code of Civil Procedure.

        8. We have heard Mr. Sushi! Karanjkar, learned counsel
    appearing on behalf of the appellant and Mr. Vinay Navare,
    learned counsel appearing for legal representatives of
    respondent No.1.
H
 VANCHALABAIRAGHUNATHITHAPE(D)BYLR.v.SHANKARRAO 1035
      BABURAO BHJLARE (D) BY LRS. [M.Y EQBAL, J.]
      9. Admittedly, the plaintiff filed the suit claiming a decree   A
for redemption of the suit property. According to the plaintiff,
the suit land was mortgaged by her to the original defendant
for the mortgaged amount of Rs. 3,000/-; a period of five years
mentioned in the sale deed is nominal; and in fact it was agreed
between the plaintiff and the defendant that whenever the             B
plaintiff repay the said amount of Rs. 3,000/-, defendant No.1
was to take back the said amount and redeem the suit property.
The trial court decreed the suit by passing a decree of
redemption. The first appellate court reversed the findings
recorded by the trial court and allowed the appeal and set aside      c
the judgment and decree of the trial court. As against that, the
plaintiff preferred the second appeal. The High Court did not
interfere with the findings of fact recorded by the first appellate
court.

     10. Since the first appellate court has gone into the details    D
of facts and evidence and recorded findings to the effect that
the transaction in question was not a mortgage but contract
sale, we would refer some of the findings recorded by the first
appellate court. Paragraphs 19, 20, 25, 26 and 29 of its
judgment are worth quoting herein:                                    E

           "19. Admittedly the plaintiff is a widow but she has
    adopted her grand son. Rajaram stays at Malgaon. Both
    the plaintiff and Rajaram have admitted that they were in
    need of money, not only to purchase another land at               F
    Malgaon but the amount was also necessary for payment
    of the Society debts of Rajaram. In case of mortgage as
    well as sale transaction it is quite possible that for the
    necessity alienation takes place. So by itself these two
    circumstances would not weigh in favour of the plaintiff or       G
    the defendant. It is admitted that with the consideration
    amount of this sale deed Exh.31, a land was purchased
    at Malgaon and that too in the name of Rajaram. This
    clearly indicates that in order to enable Rajaram to
    cultivate the land it was purchased at Malgaon Rajaram
                                                                      H
    1036   SUPREME COURT REPORTS                    (2013] 8 S.C.R


A      obviously is managing the affairs of the plaintiff.

       20. Apart from the term incorporated in Exh.31, 1t is the
       contention of the plaintiff that a separate document was
       executed by the defendant covering the suit transaction.
       That document according to the plaintiff was taken back
B
       by the defendant at the time of Akshya Tritiya of 1979.
       stating that it was required for the partition suit between
       the brothers. A bare perusal of different stages of the suit
       indicate that from time to time the plaintiff has tried to make
       improvements in her story. The defendant has flatly denied
c      that there was any other document executed on the date
       of the sale. For about 11 years after the transaction the
       plaintiff was quite silent. In the plaint, it is mentioned that
       after 1978, the defendant was ready to abide by the terms
       but later he avoided the transaction. In this connection it
D      may be noted that in the notice Exh.32, issued by the
       plaintiff, there is absolutely no mention of the fact that any
       such document had been executed much less, that it was
       taken by the defendant on the Akshya tritiya day. No doubt,
       it is an admitted fact that defendant No.2 had filed the Civil
E      suit for partition of the suit land and that suit was still
       pending at the date of the present suit. A pointed question
       was asked to the plaintiff as to why in the notice the fact
       that another document had been executed and it was taken
       at the time of Akshya Tritiya is not mentioned. She has no
F      explanation to offer. According to her nobody else was
       present when this document was taken.

       xxx xxx                       xxx
       25. Thus, ultimately what remains is the fact that the sale
G      deed Exh.31 contains the provision of re-conveyance.
       Whether by itself is it sufficient to conclude that the
       transaction was a mortgage transaction. Not only the sale
       deed is drafted a pure and simple sale deed but the
       plaintiff has tried to make out inconsistent case. If it had
H      been agreed that the transaction was to be a mortgage.
VANCHALABAI RAGHUNATH ITHAPE (0) BY LR. v. SHANKARRAO 1037
      BABURAO BHILARE (0) BY LRS. [M.Y EQBAL, J.]

   normally the Bond writer would have styled the document            A
  as (conditional sale deed). Rajaram states that the
  defendant No.1 was to enjoy the land in lieu of interest.
  Neither any such case is made out nor there any clue from
  the recitals in the document. Entire blot is tried to be put
  on the Bond writer by stating that he prompted that some            B
  period should be mentioned. In fact the suggestion made
  to the defendant is that, the bond writer Sapkar is his friend
  and he gets document written from Sapkal, thereby
  suggesting that Sapkal had written some terms not
  consistent with the agreement between the parties. It is            c
  strange, even such a suggestion made when neither
  plaintiff nor Sapkal have come out with a positive case that
  the document does not incorporate the terms agreed. At
  the most their stand is that, there was contemporaneous
  agreement of re-conveyance and that document has been               0
  suppressed. The existence of the separate document has
  been discarded by me.

  26. Admittedly, there was no relationship of debtor and
  creditor between the parties, nor is it the case of the plaintiff
  that the defendant was known to her or Rajaram before the           E
  transaction was settled. The document does not purport
  to create any relationship of landlord and tenant. The
  shorter period in which the land was to be got re-conveyed
  is an indication of absolute·sale with a concession to the
  vendor to get back the land in the stipulated period. In the        F
  R of R also in the other right column there is reference to
  this term and the period is of 5 years only. If there was any
  other document, it is not the case of the plaintiff that it was
  shown to the village officer. Naturally we have to proceed
  on the basis that the agreement of re-conveyance was an             G
  integral part of the sale deed Exh.31. No parole evidence
  to vary the terms of the same can be allowed. It is quite
  easy to make such a case to get over the obstacle in the
  way of the plaintiff but unless the circumstances justify it
  cannot be believed.                                                 H
    1038         SUPREME COURT REPORTS              [2013] 8 S.C.R


A       )()()(    )()()(                                )()()(


        29. As against this, the document Exh.31, apparently
        shows that it was a sale absolute. Not only title passed to
        the defendant No.1 because there was consistent recitals
        that plaintiff and her heirs have no subsisting interest and
B
        defendant has become full owner. Only at the end a
        concession was given to get the land re-conveyed in 5
        years. Hence in my opinion, the learned Civil Judge was
        completely in error in concluding that the transaction was
        a mortgage transaction. I hold that the transaction was an
c       absolute sale. The plaintiff has failed to get the land re-
        conveyed within stipulated period. Hence, she has lost her
        remedy. The appeal therefore, must succeed."

       11. At the very outset, we are of the view that the findings
D recorded by the lower appellate court are pure findings of fact
  and hence the High Court has rightly refused to interfere with
  those findings in second appeal under Section 100 of the Code
  of Civil Procedure. However, we would like to discuss some
  of the relevant points on the basis of those findings recorded
E by the first appellate court. The only question for consideration
  befpre us and which has rightly been considered by the first
  appellate court, is as to whether the transaction in question is
  mortgage transaction or it is a sale transaction with a condition
  of repurchase.
F        12. The document in question has been described as Sale
    Deed transferring the land along with the fixtures and
    possession was handed over to the defendant. The relevant
    portion of the Sale Deed is extracted hereinbelow:-

G       ''Thus the sale land along with the fixtures and all rights is
        being sold to you with all rights along with its possession.
        Thus you may cultivate the same. Hence forth I or my heirs
        shall not be having any right over the same and you have
        become the owner of the said land. Any obstruction would
H       be removed at my cost. I have received the consideration
 VANCHALABAI RAGHUNATH ITHAPE (D) BY LR. v. SHANKARRAO 1039
       BABURAO BHILARE (D) BY LRS. [M.Y EQBAL, J.)

    for the same for which there is no complaint. If Rs. 3000/    A
    - is paid within 5 years at the end of any Falgun month at
    that time you should accept the said amount and return the
    land to me and on this condition the land is being sold to
    you."
                                                                  B
    13. Section 58(a) and (c) of the Transfer of Property Act,
1882, needs to be reproduced here:-

    "58. "Mortgage", "mortgagor", "mortgagee",
    "mortgage-money" and "mortgage-deed" defined. -
    (a) A mortgage is the transfer of an interest in specific     C
    immoveable property for the purpose of securing the
    payment of money advanced or to be advanced by way
    of loan, an existing or future debt, or the performance of
    an engagement which may give rise to a pecuniary liability.
                                                                  D
    The transferor is called a mortgagor, the transferee a
    mortgagee; the principal money and interest of which
    payment is secured for the time being are called the
    mortgage-money, and the instrument (if any) by which the
    transfer is effected is called a mortgage-deed.               E
    (b) .....

    (c) Mortgage by conditional sale-Where, the
    mortgagor ostensibly sells the mortgaged property-
                                                                  F
    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                                         G

    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
                                                                  H
    1040    SUPREME COURT REPORTS                   [2013) 8 S.C.R.


A        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."
B       14. From a perusal of the aforesaid provisions especially,
  Section 58(c). it is evidently clear that for the purpose of
  bringing a transaction within the meaning of 'mortgage by
  conditional sale', the first condition is that the mortgagor
  ostensibly sells the mortgaged property on the condition that
C on such payment being made, the buyer shall transfer the
  property to the seller. Although there is a presumption that the
  transaction is a mortgage by conditional sale in cases where
  the whole transaction is in one document, but merely because
  of a term incorporated in the same document it cannot always
D be accepted that the transaction agreed between the parties
  was a mortgage transaction.

         15. In the case of Williams vs. Owen, 1840, 5 My.&Cr.303
    =English Reports 41 (Chancery) 386, a similar question arose
E for consideration as to whether a conveyance by the plaintiffs
  father to the defendant was to be considered as having been
  a mortgage as contended by the plaintiff, or as having been a
  sale, with a right of repurchase at a given date. It was held that
  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
F a lending and borrowing arrangement; no debt subsists and no
  right to redeem is reserved by the debtor, but only a personal
  right to purchase. This personal right can only be enforced
  strictly according to the terms of the deed and at the time
  agreed upon.
G
        16. In the instant case, the trial court committed grave error
  in construing the document and erroneously held that the
  transaction is mortgage and hence, the plaintiff is entitled to
  decree of redemption.
H
 VANCHALABAIRAGHUNATHITHAPE(D)BYLR.v.SHANKARRAO 1041
      BABURAO BHILARE (D) BY LRS. [M.Y EQBAL, J.]
      17. In the case of Vasudeo Bhikaji Joshi v. Bhau               A
Lakshman Ravut & Others reported in ILR 1897 XXI 528 a
Bench (comprising Sir C. Farran, Kt., Chief Justice and Mr.
Justice Parsons) of the High Court at Bombay considered a
similar question in which the fact was that the plaintiffs sued to
redeem an alleged mortgage made in 1823 by their ancestor            B
to the ancestor of the defendant. The alleged mortgage recited
a previous mortgage under which the mortgagee Gopal
Gokhale was in possession, and it stated that a sale had been
contemplated, but the parties could not agree as to price, but
that they had now settled it at Rs. 125/- and the amount due on      c
the mortgage at Rs. 200/-, and that it was agreed that if within
four years the mortgagor paid Rs. 125/-with interest, he should
get back the land; if not, that the land should be the absolute
property of Gokhale. On these facts, the Court held that:-

    "This was not a mortgage but a sale. It was an agreement         D
    which put an end to the previously existing mortgage. A
    mere stipulation for repurchase does not make a
    transaction a mortgage. To make a mortgage there must
    be a debt, and here there was no debt, nor was the
    property here conveyed as security."                             E

      18. In the case of Tamboli Raman/al Motila/ (Dead) by
LRs. v. Ghanchi Chiman/al Keshavla/ (Dead) by LRs. &
Another, AIR 1992 SC 1236, the facts of the case were similar
to this case. In that case, a document of transfer was executed      F
and the property was handed over. At the same time, the
document proceeded to state that the property is sold
conditionally for a period of five years and possession is
handed over. The document stated: "Therefore, you and your
heirs and legal representatives are hereafter entitled to use,       G
enjoy and lease the said houses under the ownership right." The
further clause in the document was to the effect that the
executant shall repay the amount within a period of five years
and in case he fails to repay neither he nor his heirs or legal
representatives would have any right to take back the said
                                                                     H
    1042    SUPREME COURT REPORTS                   [2013] 8 S.C.R


A   properties. The last important clause was that after the period
    of five years the transferee would have a right to get the
    municipal records mutated in his name and pay tax. On these
    facts, this Court held that:-

        "16. In order to appreciate the respective contentions, it
B
        is necessary for us to analyse Ex. 26 dated December 11,
        1950. Before that, it is necessary to utter a word of caution.
        Having regard to the nice distinctions between a mortgage
        by conditional sale and a sale with an option to repurchase,
        one should be guided by the terms of the document alone
c       without much help from the case law. Of course, cases
        could be referred for the purposes of interpreting a
        particular clause to gather the intention. Then again, it is
        also settled law that nomenclature of the document is
        hardly conclusive and much importance cannot be
D       attached to the nomenclature alone since it is the real
        intention which requires to be gathered. It is from this angle
        we propose to analyse the document. No doubt the
        document is styled as a deed of conditional sale, but as
        we have just now observed, that is not conclusive of the
E       matter.

        17. What does the executant do under the document? He
        takes a sum of Rs. 5,000/- in cash. The particulars are (a)
        Rs 2,499/- i.e. Rs 899/- by mortgage of his house on 27-
F       1-1944 and (b) Rs. 1,600 by a further mortgage on 31-5-
        1947 totalling to Rs 2,499/-. Thereafter, an amount of Rs
        2,501/- in cash was taken from the transferee. The
        purpose was to repay miscellaneous debts and domestic
        expenses and business. It has to be carefully noted that
        this amount of Rs 5,000/- was not taken as a loan at all.
G
        As rightly observed by the High Court, by executing this
        document the executant discharges all the prior debts and
        outstandings. Where, therefore, for a consideration of a
        sum of Rs 5,000/- with the conditional sale is executed,
        we are unable to see how the relationship of debtor and
H
  VANCHALABAI RAGHUNATH ITHAPE (D) BY LR. v. SHANKARRAO 1043
        BABURAO BHILARE (D) BY LRS. [M.Y EQBAL, J.]

     creditor can be forged in. In other words, by reading the           A
     documents as a whole, we are unable to conclude that
     there is a debt and the relationship between the parties is
     that of a debtor and a creditor. This is a vital point to
     determine the nature of the transaction."
                                                                         B
    This Court, therefore, held that the document was not a
mortgage by conditional sale, rather the document was transfer
by way of sale with a condition to repurchase.

     19. In the instant case, the alleged sale document was
executed in the year 1967 transferring the suit property by way          C
of sale subject to one stipulation/condition that on receiving the
sale amount of Rs. 3,000/- within five years the land was to be
returned to the plaintiff-vendor. It is also not in dispute that after
transfer of the land the defendant-respondent No. 1 came in
possession and used & enjoyed the suit property as an absolute           D
owner. It was only after 11 years that the plaintiff-appellant filed
the suit alleging that the suit property was mortgaged in favour
of the defendant/respondent No.1 herein with a condition to
reconvey the land.
                                                                         E
     20. In the aforesaid premises, we do not find any reason
to interfere with the findings recorded by the first appellate
court. As stated above, the High Court has rightly not interfered
with the findings of fact recorded by the first appellate court.

     21. For the aforesaid reasons, we do not find any merit in          F
this appeal which is, accordingly, dismissed, but without any
costs.

B.B.B.                                         Appeal dismissed.