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TMI Blog1992 (3) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... mption was fixed at five years from the date of transaction. The consideration was a sum of ₹ 5000. The first defendant (the first respondent herein) sold a portion of the suit property in favour of the second defendant (the second respondent herein). The appellant had executed a rent note agreeing to pay an annual rent of ₹ 330/- for the premises which represented interest at 6% per annum. The first defendant had made alterations and changes in the property to the detriment of the plaintiff. In spite of the offer of the mortgage amount, the first defendant refused to accept the same and refused to allow the redemption of the properties. Hence the suit. 3. The first defendant filed the written statement to the effect that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 11.12.1950 was only a mortgage by conditional sale. 7. In view of the above, the respondents took up the matter to the High Court of Gujarat in Second Appeal No. 359 of 1971. by Judgment dated 10.12.1975 the High Court set aside the concurrent findings of the courts below holding that Ex.26 was not a mortgage by conditional sale; on the contrary a sale with an option to repurchase. In the result, the suit was dismissed. 8. Thereafter, the special leave petition was moved by the petitioner on 13.7.1976, Leave was granted on 6.10.1976. However, the first respondent, Ghanchi Chimanlal Keshavlal died on 9.10.1990 and his legal heirs were brought, on record on 23.3.1984. The sole appellant died on 6.12.1990 and his legal representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgage by conditional sale all the more so, in the present case. 12. The learned Counsel for the respondents would urge that there is nothing to indicate by reading as document that there is any relationship of the debtor and the creditor. What the executant of the document did was in discharge of the prior debts he sold the property for a sum of ₹ 5,000/-. The fact that there was a previous relationship of the debtor and the creditor will have no bearing in construing the document. 13. The attendant circumstances could be looked into only to gather the intention. Such an intention, if explicitly expressed in the document itself, there is no scope for looking at the attendant circumstances. If, therefore, there is no relationship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matter. 17. What does the executant do under the document? He takes a sum of ₹ 5,000/- in cash. The particulars are (a) ₹ 2,499/- i.e. ₹ 899/- by mortgage of his house on 27.1.1944 and (b) ₹ 1,600/- by a further mortgage on 31.5.1947 totalling to ₹ 2,499/-. Thereafter, an amount of ₹ 2,501/- in cash was taken from the transferee. The purpose was to repay miscellaneous debts and domestic expenses and business. It is to be carefully noted that this amount of ₹ 5,000/- was not taken as a loan at all. As righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, while the right of the transferee to foreclose the mortgage is not spoken to. That would be so, if the document were to be a mortgage by conditional sale. Only in such a case the first condition spoken to under Section 58(c) will come into play. It is well-settled in law that the right of redemption and foreclosure are co-extensive. The absence of such a right of the mortgagee could only mean that it is a conditional sale. 21. The last important clause is after the period of five years the transferee will have a right to get the municipal records mutated in his name and pay tax. Thereafter, the transferee will have an absolute right to mortgage, sell, or gift the suit property. Neither executant nor any one else could dispute the titl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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