R.M.KANTAWALA, J. - (1.)Defendant No. 1 has filed this appeal against a decree passed by the learned District Judge, Kolhapur, holding that a particular transaction dated January 5, 1955, between the plaintiffs, since deceased, and the defendant No. 1 is a mortgage by conditional sale. Plaintiff filed a suit for redemption of mortgage on the ground that on January 5, 1955, he mortgaged the suit property viz. his 2/5th share in Survey No. 180/1, and Survey No. 44 situate at village Kadalage. His contention is that under this mortgage it was open to the plaintiff to pay Rs. 6,000/- which comparised of Rs. 4,000/- due under a mortgage dated June 14, 1946 and Rs. 2,000/- which were paid on January 5, 1955 and the defendant No. 1 was under an obligation to re-sell the said land to the plaintiff. On November 18, 1970, the present suit was filed by the plaintiff for redemption of this mortgage. As he died during the pendency of the suit, his heirs and legal representatives were brought on record. The suit was dismissed by the trial Court inter alia holding that the transaction dated January 5, 1955, was not in the nature of a mortgage by conditional sale. In an appeal preferred by the heirs of the plaintiff, the learned District Judge held that the transaction was a mortgage by conditional sale and the heirs of the plaintiffs were entitled to a preliminary decree for redemption of the mortgage. It is against this decree passed by the learned District Judge that defendant No. 1 has filed the present appeal.
(2.)Mr. Joshi on behalf of defendant No. 1 submitted that the learned District Judge was in error in taking the view that the transaction was a mortgage by conditional sale. He submitted that there was already a mortgage effected in the year 1946 and what was dealt with by the transaction of January 5, 1955, was to sell the 2/5th share in the equity of redemption in favour of the mortgage. Such a transaction can never be regarded as a mortgage by conditional sale even though it contained a clause for repurchase of the property on payment of Rs. 6000/-. He urged that when the transaction of the year 1955 was entered into Rs. 2,000/- were paid, while under the earlier mortgage a sum of Rs. 4000/- was already due. Thus, when the deed provides a convenent to reconvey on payment of Rs. 6000/-, the transaction was nothing but to reconvey the property in the manner provided in the deed. Mr. Mhamane, on the other hand, on behalf of respondent No. 4 defendant No. 2 submitted than the learned District Judge was right in taking the view that the transaction of January 5, 1955, was a mortgage by conditional sale and the heirs of the plaintiffs were entitled to preliminary decree for redemption.
(3.)If regard be had to the earlier transaction between the parties, it is quite clear that the view that has been taken by the learned District Judge is unsupportable. It is common ground that there was already a registered deed of mortgage executed on June 14, 1946, whereunder the plaintiff and one Bandu borrowed a sum of Rs. 4000/-. Thus when the transaction of January 5, 1955, was entered into, it was nothing else but a sale of 2/5th share of the equity of redemption. By this transaction 2/5th share in the two survey numbers which in reality was merely an equity of redemption was transferred to the mortgage for the sum of Rs. 2000/-. The sale-deed further provided that if the plaintiff repaid the sum of Rs. 6000/- within a period of five years from Shake 1877, then defendant No. 1 will be under an obligation to re-sell the lands to the plaintiff. The document further provides that in case the plaintiff failed to pay the amount within the time prescribed, then the right to re-purchase would be extinguished and the lands will continue to be under the absolute purchase right with defendant No. 1.