9911796707
TMI Blog1982 (2) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred upon him by the deed in favour of the 5th respondent. In 1957, one Sohanlal , the holder of a decree against the 1st plaintiff , purchased the land in suit in execution of a decree through a court sale. On 13th June , 1958 the sale was confirmed. In 1966 the first plaintiff filed a suit for redemption alleging that the deed was a mortgage by way of conditional sale and that the mortgage amount has been repaid by virtue of the rent collected . The 5th respondent was impleaded as a defendant ( the 5th defendant ) in the redemption suit . He pleaded that the deed was a deed of sale with a condition of repurchase. In 1967 Sohanlal filed a suit for possession of the land making the 1st plaintiff and 5th defendant in redemption suit defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of res judicata . The first plaintiff in the redemption suit ( from whom the appellant before me claims title ) and the 5th defendant in the redemption suit ( the 5th respondent before me) were defendant's in Sohanlal's suit. The point as to whether the deed was a deed of mortgage by way of conditional sale or a deed of sale with a condition to repurchase was in issue that was decided in that suit. There are, however, three reasons why the decision in Sohanlal's suit does not operate as res judicata against the appellant. 4. First, it is apparent from a reading of the judgment in Sohanlal's suit that the court relied upon the judgment in the redemption suit of the trial court of 4th Nov. 1969 to hold that the deed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 : AIR 1920 Bom 325, may be referred to. The Court said, we think that the finding of the Court in .. .. ... .. there could be no appeal against it, because the decree was in favour of the party against whom the finding was recorded. 7. It was contended by Mr. Hoshi, learned counsel for the 5th respondent, that it was not open to the appellant to seek to redeem the mortgage, assuming the transaction to be such, because it had been held in Sohanlal's suit that be had not equity of redemption. This is but another way of putting the same argument .It can be answered slightly differently. Sohanlal sought to establish his title to the land and obtain possession of it. His suit was dismissed. He went no further. It does not lie in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditional sale-deed of house in Nagpur (Nagar ?) city for ₹ 2,000/- dated 3rd May, 1950. M. B. Saidare ..... Executor K. M. Kothar ..... Executant Received ₹ 375/- before eight days ₹ 1,625/- I will receive (Sixteen hundred twenty-five only) before the Sub-Registrar, A'nagar. Total ₹ 2,000/- Received Rs Two thousand for the marriage of daughter and family expenses. In exchange thereof, the house which was inherited by me as my ancestral property as my share which is without any incumbrance : description ... .... ... As per the said above description the house and the land on which it is constructed and the things appurtenant thereto is sold to you conditionally for five years. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment the Supreme Court said that the question whether by the incorporation of a condition of sale a transaction ostensibly of sale could be regarded as mortgage was one of the intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The definition of a mortgage by conditional sale postulated the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there was no relation of debtor and creditor nor was the price charged upon the property conveyed, but the sale was subject to an obligation to retransfer the property within the period specified. What distinguis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortgage it. Mr. Dhorde also submitted that it was the appellant's case that the property had been transferred at an undervaluation, which was indicative of a mortgage, but the trial Court rejected that contention, It had done so quite rightly since it was sought to be established by nothing more than the appellant's bare word. 13. In the result, I am inclined to take the view, having regard to the text of the deed interpreted in the light of surrounding circumstances, that it is a deed of sale with a condition repurchase. 14. In the view of the matter the appeal must fail and is dismissed. Having regard to the enormous litigation to which I have earlier made reference, the fair order is that the parties shall bear and pay thei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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