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TMI Blog2008 (12) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... structed buildings thereupon. Half of the said leasehold rights was sought to be conveyed in favour of the appellant by reason of the said deed. Indisputably, the first respondent executed a deed of assignment in favour of the V. Devaki Amma in respect of his half share for a consideration to repurchase the same by a document dated 27.10.1969. She, by a deed of assignment dated 2.3.1976, transferred her right, title and interest being half of the property to the appellant and, thus, according to him, he became the full owner thereof. Indisputably again, the appellant was granted a purchase certificate under the Kerala Land Reforms Act in respect of the entire property in the year 1978. First Respondent did not take any step to set aside the said certificate for a long time. Only in the year 1984, he filed a suit for redemption of mortgage and partition in respect of his half share in the property alleging that the said deed dated 27.10.1969 represented only a loan transaction. Appellant herein, however, took the usual stand that the said deed is in effect and substance a deed of sale with a condition to repurchase. In view of the pleadings of the parties, several issues were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f and Cheriyathan jointly got an assignment of lease hold right and are enjoying the same by effecting improvements and buildings and I humbly (sic) conditionally assign my one half right over the property with possession and with the improvements thereon with a stipulation that within a period of 3 years from today, I shall repurchase the same at my expense. I have received the sale consideration of ₹ 2,000/- in cash from you and I hereby relinquish all my = right over the scheduled property and hence by this assignment from today till the period is over you are entitled to enjoy the schedule property as a sale by efflux of time and thereafter as an absolute sale. You will be entitled to directly attorn to the landlord by paying rent and hereafter I will have no right to deal with the property in any manner. Original sale deed is not handed over as it is a joint document and I hereby assure you that there are no encumbrances created in respect of my half share. 7. Whether a document is a mortgage by conditional sale or a sale with a condition of repurchase is a vexed question. Section 58(c) of the Transfer of Property Act, 1882 reads thus: Section 58 - Mortgage , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of execution thereof. He acknowledged receipt of sale consideration of ₹ 2,000/- in cash. The vendor relinquished all his right over the scheduled property. However, the nature of assignment was sought to be clarified as the words till the period is over and efflux of time and thereafter as an absolute sale are used. It is significant that thereby the vendee in terms of the said instrument became entitled to attorn to the landlord by paying stipulated rent evidently as a tenant and not as a mortgagee. The vendor accepted that he would have no right to deal with the property in any manner. The reason why the original deed of sale had not been handed over was also explained. Declaration has been made that no encumbrances had been created in respect of the vendor's share in the property. 12. The High Court in its judgment proceeded on the basis that the value of the property was ₹ 6,800/- and, thus, consideration of ₹ 2,000/- ex facie was insufficient. What was not noticed was that by reason of the said deed only half of the right of the vendor was sought to be assigned. It is also not in dispute that the appellant had already acquired the right, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. Therein the mortgage was to remain operative for a period of 99 years. It was in that situation, this Court opined that the original owner having been in great financial difficulty, the mortgagees took advantage of the said fact and incorporated a 99 year's term which constituted a clog on the equity of redemption. In this case, the term is only for a period of three years which is reasonable. We may notice that in Bishwanath Prasad Singh v. Rajendra Prasad and Anr. AIR2006SC2965 , upon taking notice of a large number of decisions, this Court observing that therein no stipulation had been made that the vendee could not transfer the property and his name was mutated, held: 18. We have noticed hereinbefore that the nature of deed was stated to be an agreement (ekrarnama), the nature of the document was not stated to be bai-ul-wafa , the relevant clause whereof reads as under: Because the vendor today of this date has sold the property of this deed to the vendee through registered agreement on the vaibulwafa condition and during this period the vendor and the vendee have already agreed that this case will remain as vaibulwafa and as per the said sarait, the vend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolute right to deal with his property in any manner he likes. It was clearly stipulated in the deed that in the event the executant repayed the entire consideration by 30-12-1971, the purchaser would reconvey the property and furthermore deliver possession thereof. The sale was to become absolute only when the transferee failed to pay the said amount within the stipulated period. The courts below have also taken into consideration the contemporaneous conduct of the parties in treating the transaction to be one of mortgage and not of sale. We are, therefore, of the opinion that the parties intended to enter into a transaction of mortgage and not sale. 15. In Manjabai Krishna Patil (D) by LRs. v. Raghunath Revaji Patil and Anr. 2007 (3) SCALE 331, this Court opined that no relationship of debtor and creditor having come into being and no security had been created, the instrument in question was a deed of sale with a condition of repurchase. 16. Another important factor which must be borne in mind in construing the instrument in question is that appellant was already the owner in respect of half of the property. As the parties were related to each other, it is difficult to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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