Decided on July 20,1979



M.K.SHAH - (1.) This second appeal arises out of a suit filed by respondent No. 1 original plaintiff against the appellant original defendant No. 1 and respondent No. 2 that is original defendant No. 2 for redemption of mortgage of payment of the mortgage amount of Rs. 900.00 in respect of the suit land bearing survey number 971/1 admeasuring 9 acres 1 guntha situated in village Limbasi taluka Matar district Kaira. A few facts giving rise to the litigation between parties may be briefly stated.
(2.) A document dated 11th May 1956 purporting to be a document of sale with a light to repurchase but claimed to be mortgage with conditional sale by the plaintiff. was executed by the plaintiff on 11th May 1956 in favour of defendant No. 1 and possession was also transferred to defendant No. 1 on payment of the said amount of Rs. 900.00. The document infer alia provided that the land was conditionally sold to defendant No. 1 for a consideration of R5. 900/- and the plaintiff was entitled to get the same reconveyed to him from the said defendant on repayment of the said amount of Rs. 930.00. It may be stated at this stage that defendant No. 2 is the brother of the plaintiff and as he had also signed the said document as an executant as surety of the plaintiff he was also joined as formal defendant that is defendant No. 2 in the sald suit. It was the plaintiffs case that though ostensibly a document of sale Ex. 40 was in fact a deed of mortgage by conditional sale and the plaintiff was therefore entitled to redeem the same on payment of the consideration of the amount of Rs. 900.00. As the defendant refused to redeem the plaintiff had to file the said suit for redemption.
(3.) Defendant No. 1 resisted the suit inter alia on the ground that the transaction as evidenced by the document Ex. 40 was a sale out and out and it was not a transaction of mortgage and the plaintiff was therefore not entitled to a decree for redemption. As regards the alternative relief claimed by the plaintiff of specific performance of the agreement to reconvey the property in the event of the transaction being held a sale with condition to repurchase it was contended by the defendant that on 20th July 1957 the plaintiff and his brother that is defendant No. 2 and deceased Motibhai Naranbhai accepted a sum of Rs. 639.00 from him and relinquished their right to repurchase the property and the plaintiff was therefore not entitled to the relief of specific performance.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.