- (1.) Leave granted. 1. Parisa Shantappa Upadhye, the predecessor in interest of the respondent, was the owner of the land. He entered into a transaction with the appellant herein on or about 7.10.1969. The deed was titled as Conditional Sale Deed of immovable property. The land, in question, was situate in the town of Kolhapur in a market area. A shed was constructed thereupon. The relevant terms of the said document evidencing the transaction in question are as under:- "2. The property described above is sold by me for a period of five years and you are put into possession thereof. Consideration of Rs. 500/- for the said sale is paid by you to me and I have received the same and there is no grievance with respect to the said receipt. 3. You are entitled to enjoy the possession of the said property till the said period and get the property transferred in your name and pay the municipal assessment with respect thereto. 4. In case the above said amount of Rs. 500/- is repaid to you by the end of the above said period or prior thereto, you will accept the same and restore the said property in my possession and execute the sale deed in my favour as per the agreement between us. 5. At the end of the period mentioned hereinabove or also before the expiry of the said period at any time if we return the sale deed amount of Rs. 500/-, after accepting the said amount you have to return the possession in our favour and to execute sale deed in our favour. This is agreed between us."
(2.) The plaintiff/respondent offered to return the said amount of Rs. 500/- to the appellant/defendant. It was not accepted on the premise that he had acquired an absolute title thereto. A suit for redemption of mortgage was filed on or about 24.2.1981. The issue which arose for consideration before the courts below was as to whether the transaction in question contemplated conditional sale with an option to purchase or it was a conditional mortgage.
(3.) The High Court by reason of the impugned judgment upon construction of the said deed dated 7.10.1969 (Exhibit 40) opined that the transaction constituted a mortgage and not an out and out sale. Notice was taken of the fact that only one document was executed.;