- (1.) This appeal is filed by the original defendant against the judgment and decree passed in suit for redemption of mortgage. While admitting this appeal on 22.10.1979, it was admitted to consider the limited question, namely, 'Whether the transaction between the parties is a mortgage' ?
(2.) The contentions raised by the respondent-plaintiff can be summarized as follows :- The respondent (plaintiff) was in need of money. He, therefore, vide a deed dated 21.5.1995 executed a sale-deed of the suit-property in favour of appellant (original defendant). According to the plaintiff, the sale transaction was of simple mortgage for securing a loan of Rs. 2, 000/- which was the consideration shown in the said sale-deed. At the same time, by another agreement, the plaintiff-vendor agreed to pay rent to the vendee (present appellant) at the rate of Rs. 20 per month for use and occupation of the suit property. On the same day, another document was also executed whereby it was agreed between the appellant-vendee and the respondent-vendor that the vendee shall re-convey the property within four years. It may be mentioned here that the said document is not on record. Therefore, the exact terms of that document could not be ascertained. However, in the course of deposition, the appellant-vendee has admitted existence of such an agreement to re-convey the mortgage to the original vendor within four years. In this appeal, it was also one of the debatable questions as to whether the said evidence regarding the existence of such document and that terms of the said document can be considered in the absence of the said document. It was contended by the respondent-vendor that the transaction was not a sale, but was only a mortgage for securing the amount. According to him at the time of transaction, the property was worth Rs. 4,000/- through its value was shown to be Rs. 2,000/-.
(3.) It may further be mentioned that after the execution of the documents mentioned above, the respondents-vendor was in arrears of rent due in respect of the suit property. The appellant-vendor therefore filed a civil suit for recovery of arrears of rent amounting to Rs. 760/-. In that suit the respondent/vendor raised the question regarding the nature of documents referred above. In that suit, ultimately, a money decree in respect of rent dues came to be passed. In course of that litigation, the question regarding the nature of the document referred to above, however, was kept open and was to be determined in the suit if filed by the vendor for redemption of mortgage. That is how the vendor-respondent filed the present suit for redemption of the mortgage.;