SOU MANGAL POPATRAO SODMISE Vs. SOU.ABDAGIRI VISHVANATH NARALE
LAWS(BOM)-2017-3-198
HIGH COURT OF BOMBAY (AT: NAGPUR)
Decided on March 07,2017

Sou Mangal Popatrao Sodmise Appellant
VERSUS
Sou.Abdagiri Vishvanath Narale Respondents

JUDGEMENT

S.C.GUPTE, J. - (1.) Heard learned Counsel for the parties.
(2.) This Second Appeal involves a question as to the interpretation of a deed executed by and between the parties termed as "enqr [kjsnh[kr", translated by the courts below as a "conditional sale deed." Whereas, according to the Appellant, this was an absolute sale with a condition of repurchase incorporated in the document, according to the Respondent, the document was a mortgage by conditional sale. The Trial Court held the document to be an absolute sale with an agreement for repurchase. The first Appellate Court reversed that order and held the document to be a mortgage by conditional sale and ordered re-conveyance of the suit property by the Appellant (original Defendant) to the predecessor in title of the Respondents (original Plaintiff) in redemption of mortgage.
(3.) At the outset, it needs to be noted that the suit, as originally framed, simply prayed for re-conveyance of the suit property in accordance with the deed of conditional sale. By an amendment of plaint it was claimed that there was a relationship of creditor and debtor between the parties and that the transaction between the parties was of mortgage by conditional sale covered by clause (c) of Section 58 of the Transfer of Property Act. This amendment has since become final. Learned Counsel for the Appellant, however, submits that though the plaint has been amended, there is no prayer for redemption of mortgage in the suit; the original prayer for execution of a deed of re-conveyance against payment of Rs. 10,000/- is neither altered nor is any specific prayer for redemption added in the suit. Learned Counsel submits that relief in the nature of redemption of mortgage could not, in the premises, have been granted. There is no merit in this contention. The plaint, as amended, clearly makes out a case of a mortgage by conditional sale and seeks re-conveyance effectively in redemption of mortgage. It is well within the remedy of the mortgagor to require the mortgagee to re-transfer the mortgaged property to the former at his costs, within the meaning of Section 60 of the Transfer of Property Act, 1882. The plaint, read as a whole, together with the prayer for re-conveyance against repayment of the mortgage money of Rs. 10,000/-, can only be termed as a suit for redemption.;


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