JUDGMENT
V. Eswaraiah, J.
1. This second appeal has been filed by the appellants who seek to assail the judgment and decree dated 21.8.1997 in A.S. No. 37 of 1987 on the file of Subordinate Judge, Kavali.
2. For the sake of brevity the parties herein after be referred to as they are arrayed in the Trial Court.
3. The brief facts that are necessary for the disposal of the present appeal may be delineated as follows:
4. The first plaintiff and his late father Sayibu are the mortgagors of the plaint schedule land and the first defendant is the mortgagee. First defendant being mortgagee in possession as per the hypothecation arrangement and is appropriating the profits towards interest. The plaint schedule land belongs to the family of the first plaintiff and his late father Kundurthi Sayibu. The suit land is cultivable wet land. Plaintiffs 2 to 5 are the sisters of the first plaintiff. In August, 1966, 5th plaintiff had to be married. As the lands belonging to the family of the plaintiffs had to be repaired and improved. For this purpose first plaintiff and his father in need of money. They approached the first defendant for loan of Rs. 2,000/-. The first defendant agreed to lend the money to them provided a mortgage was executed in his favour hypothecating the plaint schedule land which was at that time costing about Rs. 1,500/- per acre. First plaintiff and his late father agreed to hypothecate the same for the loan of Rs. 2,000/- as demanded by the first defendant, since they were in need of money. On 12.8.1966 out of the amount of Rs. 2,000/- payable by first defendant, first plaintiff and his father spent Rs. 162/-for stamps for the mortgage deed and Rs. 24.50 ps. for registration fee and Rs. 13.50 ps. for the expenses and paid Rs. 1,800/- to first plaintiff and his father. First defendant got executed by first plaintiff and his father an ostensible sale deed of Rs. 2,000/- in the name of first defendant on that date with a condition that if Rs. 2,000/- alone was repaid to him within 3 years by 12.8.1969 first defendant should execute and register sale deed in favour of first plaintiff and his father at their expenses and if they fail to payback Rs. 2,000/- to first defendant by 12-8-1969 first defendant should enjoy the property with absolute rights from that date. The land was put in Defendant No. 1 possession and the produce to be enjoyed by first defendant in lieu of interest at 12% on the loan. Thus, the said document is a mortgage by conditional sale. First defendant has been enjoying the produce from the land coming to not less than 3 putties of paddy every year which is more than the interest at 12%. Patta for the land continued to be in the name of first plaintiff’s father. Subsequently, within a short time after the execution of the said document, first plaintiff renounced worldly affairs and began to live in an Ashram at Bogole. First plaintiff’s father could not redeem the mortgage in favour of first defendant. First plaintiff’s father died about one year back. His wife predeceased him. First plaintiff and his five sisters Plaintiffs 2 to 5 and Defendant No. 2 succeeded to the share of their father in the family properties including the plaint schedule land. The first plaintiff has married and is managing the family. He had demanded the first defendant to receive the amount due to him and redeem the mortgage and deliver back the land. But the first defendant has been postponing to do so on some pretext or the other.
5. Then the first plaintiff got issued a legal notice on 26.11.1977 demanding redemption and other reliefs. First defendant received the notice and got issued a reply notice through his lawyer with false and untenable allegations. The suit land is fetching good income worth about Rs. 1,500/- per acre as per market rate. First plaintiff or his father never bargained to sell the land outright. It was only a mortgage by conditional sale. The first defendant never spent Rs. 1,000/- for improving the land. The first defendant never hypothecated the land to the Land Mortgage Bank, Kavali for Rs. 4,990/-. Any such hypothecation is invalid and cannot effect the rights of the mortgagors. First defendant was aware of the loan liability upon the land which was incurred by first plaintiffs father before the execution of the document dated 12.8.1966. The plaintiffs contended that the time for redemption has not expired and they are entitled to redeem the mortgage. First defendant is also liable to account to the mortgagors for the profits enjoyed by him in excess of the interest amount due to him at 51/2% only as plaintiff and 2nd defendant are agriculturists. The ‘C’ schedule property is Ac.2-20 cents in Survey No. 772 covered by patta No. 12 and an extent of Ac.01-15 cents in Survey No. 771 covered by patta No. 113 and the total extent is Ac.03-35 cents.
6. The first defendant filed written statement contending inter alia that the plaintiff and his father never approached him to lend a loan of Rs. 2,000/- and he never agreed to lend the said money under the mortgage by conditional sale and the value of the land was only Rs. 2,000/- as on the date of Ex.B-3 sale deed @ Rs. 600/-per acre. As there was no request for the loan, the question of hypothecating the plaint schedule property never arises. The first plaintiff and his father executed registered conditional sale in favour of the defendant on 12.8.1966 under Ex.B-3 for the aforesaid sale consideration of Rs. 2,000/-putting the Defendant No. 1 in possession of the plaint schedule properties and since than he is in continuous possession and enjoyment of the same as absolute owner. The plaint schedule land was transferred in the name of the first defendant and since than he is continuously paying the cist. The defendant also borrowed money on the strength of the suit schedule property by mortgaging the same to the Land Mortgage Bank, Kavali three years ago and deposited his title deeds with them. As per the conditional sale the plaintiffs and his father entitled to demand reconvey the property by paying Rs. 2,000/- within three years on or before 12.8.1969 and for nonpayment of the sale amount, the defendant shall continue in possession of land with absolute right. The plaintiffs and his father did not pay the said amount of Rs. 2,000/-within the stipulated time and therefore the sale became absolute and thereafter the defendant spent an amount of Rs. 1,000/- for improving the land. In fact, the plaintiffs’ father suppressed the fact of taking loan from the Bank and there was a dues of Rs. 226.53 in respect of loan transaction bearing No. L.O.No. 677/63 and after purchasing the said property the defendant himself paid the said amount on 24.5.1967. It was never agreed to collect the interest on the said amount of Rs. 2,000/- treating it as mortgage by conditional sale @12% per annum and in view of the said interest, it is incorrect to state that the defendant agreed to enjoy the usufruct. It is untenable to contend that the sale deed Ex.B-3 is a mortgage by conditional sale. The other allegations that it was yielding 3 putties is incorrect. But, the gross income from the suit land was never more than 1 to 1/2 putties of paddy during some years and it was not yielding at all. The allegations that the first plaintiff renounced began to live in an Ashram is not true. Plaintiff and his father never demanded the defendant to receive the amount due and to return the sale deed from the possession of the land by reconveying. All the allegations made by the plaintiffs are incorrect and there is no truth in the said allegations.
7. On these pleadings the Trial Court framed the following issues:
1. Whether the suit transaction is a mortgage by conditional sale as alleged by the plaintiffs or an outright sale with an option of repurchase as alleged by Defendant No. 1 ?
2. Whether the plaintiffs are entitled to the redemption?
3. To what relief if any are the plaintiffs entitled?
4. To what relief?
8. Before the Trial Court on behalf of the plaintiffs PWs.1 to 3 were examined and Exs.A-1 to A-4 were marked. PW-1 is first plaintiff. Ex.A-1 is the registration extract of Ex.B-3 sale deed. Ex.A-2 is the advocate notice. Ex.A-3 is the postal acknowledgement. Ex.A-4 is the legal notice. The first defendant is examined as DW-1 and DW-2 also was examined on his behalf. Exs.B-1 to B-29 were marked on behalf of the defendants, Ex.B-1 is the registration extract of sale deed dated 21.9.1945. Ex.B-2 is the sale deed dated 19.9.1963. Exs.B-4 to B-29 are cist receipts.
9. The Trial Court held that the suit transaction Ex.B-3 is a mortgage by conditional sale and the plaintiffs are entitled to the redemption and accordingly decreed the suit as aforesaid by its judgment and decree dated 21.11.1987.
10. Aggrieved by the decree and judgment of the Trial Court, the first defendant filed A.S. No. 37 of 1997 on the file of the Subordinate Judge, Kavali and the lower appellate Court allowed the appeal setting aside the judgment and decree of the Trial Court and dismissed the suit, holding that Ex.B-3 is not mortgage by conditional sale and the surrounding circumstances and the intention of the parties indicates that Exs. B-3 is a out and out sale with a option to repurchase within the specific period and the District Munsiff carried away the oral evidence of PW-1 as regards to the rate of interest of 12% on the amount of Rs. 2,000/- and erroneously granted preliminary decree. In Ex.B-3 there is no whisper with regard to the payment of the interest or the rate of interest payable. In the absence of any recital in Ex.B-3 regarding the payment of interest the Court is bound to believe the recitals of Ex.B-3 only and the evidence of DW-1 and therefore, there is no basis to grant such preliminary decree in favour of the plaintiffs. Ex.B-3 and Ex.A-1 is not mortgage by conditional sale, but it is only a sale with an option to repurchase the property and accordingly, set aside the judgment of the Trial Court.
11. Aggrieved by the judgment and decree of the Subordinate Judge, dated 21.8.1997, the plaintiffs filed this second appeal, contending that the lower Appellate Court failed to consider Ex.B-3 (Ex.A-1) in the light of the provisions of Section 58(c) of the Transfer of Properly Act. The lower Appellate Court has not considered the judgment .
12. It is the contention of the learned Counsel for the appellants that in a case of sale, relationship between debtor and creditor, as required under Section 58(c) of the Transfer of Property Act would exist and therefore, the document Ex.B-3 is not a sale with a condition to repurchase and the lower Appellate Court failed to consider the ingredients of Section 58(c) of the Transfer of Property Act
13. The only substantial question that arise for consideration as to the interpretation of Ex.B-3 (Ex.A-1) sale deed, that is to say whether it is a mortgage by conditional sale or only a sale deed with a condition to repurchase (he property?
14. To appreciate the facts of this case and the cardinal maxim to be observed by this Court in the instant case on hand in construing Ex.B-3, it is necessary to extract the recitals of Ex.B-3 sale deed. Ex.B-3 sale deed, dated 12.8.1966 is a conditional sale deed for Rs. 2,000/-. The sale deed is executed by the first plaintiff and his father in favour of the first, defendant stating that the suit schedule property was sold for a sum of Rs. 2,000/- having received the same to the first defendant by executing registered sale deed and the possession of the same is also delivered to the first defendant. The sale is made with a condition that if the sale consideration of Rs. 2,000/- is paid back to the first defendant within three years i.e., on or before 12.8.1969 they are entitled to get back the property registered in their name at their expense. If for any reason the sale consideration is not paid and if they failed to get back the said property registered in their name the sale cover by Ex.B-3 becomes absolute and the first defendant is entitled to enjoy as absolute owner with all powers of enjoyment, sale, gift etc., and the first plaintiff and his father cannot have any objection and the sale deed is executed and the said condition of sale is executed with their free will and consent.
15. It is the case of the first plaintiff as PW-1 in his oral deposition that the said Ex.B-3 sale deed is a mortgage by conditional sale and it is not out and out sale and interest @ 12% was stipulated on the loan amount and the first defendant was realized about four bags of paddy in the suit schedule land and after executing Ex.B3 sale deed, he joined in the Ashram renouncing worldly life and his father could not redeem the mortgage who died one year before filing the suit and his mother died prior to the death of his father and after death of his parents, the property devolved on the plaintiffs and he came back from Ashram and married. Thereafter, he went to Defendant No. 1 requesting him to receive the money and reconvey the plaint schedule property, but the Defendant No. 1 refused to deliver the property saying that he has purchased the said property. Therefore, he has got issued lawyer’s notice Ex.A-2 which has “been received by the defendant No. 1 and Defendant No. 1 also sent a reply Ex.A-4. It is stated that the first defendant has not spent any amount of Rs. 1,000/-for the development and he do not know whether Defendant No. 1 mortgaged the said land and paid Rs. 4,900/- to the Land Mortgage Bank. He is ready and willing to pay the amount which was borrowed under Ex.B-3. It is further stated that the value of the suit land was Rs. 1,500/- per acre at the time of Ex.B-3 and Ex.B-3 was executed for the purpose of raising loan to celebrate the marriage of the second defendant in the year 1966. But, the said conditions are not written in Ex.B-3. The suit land is a wet land and he do not know whether the first defendant paid an amount of Rs. 226.53 in the Sub-Treasury on 24.6.1967 towards the loan of the first plaintiff and his father after Ex.B-3. Even till the date of his deposition, the plaintiffs have not deposited a sum of Rs. 2,000/- in the Court. He asked to reconvey the suit land in the year 1976 and his father died in 1973.
16. PW-2 is a resident of the village stated that father of PW-1 had Ac.04-00 of wet land, from 50 years, he used to cultivate the said land and used to get 11/2 putties of paddy per acre and the value of the said land was Rs. 1,500/- per acre. But, he has not filed any document to show that the value of the land was Rs. 1,500/-per acre at the relevant time of Ex.B-3. PW-2 was examined only for the purpose that the value was higher than the sale consideration mentioned in Ex.B-3.
17. PW-3 is also a resident of the same village. He was examined for the purpose that PW-1 was away from the village from 1967 to 1971.
18. The first defendant was examined as DW-1 he stated that the total extent of plaint schedule land is Ac.03-35 cents covered by Ex.B-3 deed and filed Ex.B-1 to show that Ex.B-1 and B-2 which is 80 cents sold for a sum of Rs. 150/- in 1945. Under Ex.B-3 land was not mortgaged for Rs. 2,000/- and it is incorrect to state that the costs of the land was Rs. 1,500/- per acre during the year 1966 and there is no evidence adduced by the plaintiffs in support of their contention. Exs.B-4 to B-29 are the cist receipts and all the cist receipts are in the name of the first defendant. It is incorrect to say that he has given Rs. 1,800/- under Ex.B-2 and spent Rs. 200/-towards stamp duty and registration. It is stated that he had paid entire amount of Rs. 2,000/- and subsequently he had mortgaged property and obtained loan in the year 1966 and borrowed a sum of Rs. 4,900/- after purchasing the property. He had also paid Rs. 226.53 ps. towards the loan and there was no stipulation in Ex.B-3 as regards the payment of any interest and he has spent Rs. 1,000/- towards development, ExB-3 is only a conditional sale but not the mortgage by conditional sale. The contents of Ex.B-3 are true and correct. The plaint schedule property are treated in his name and he paid the cist in his name only.
19. DW-2 working in the plaint schedule property of DW-1 was also examined.
20. On the aforesaid oral and documentary evidence, the only point that arise for consideration as to whether Ex.B-3 is a mortgage by conditional sale or it is only a conditional sale, but not mortgage by condition sale.
21. Chapater 4 of the Transfer of Property Act deals with mortgages of immovable properties and charges. Under Section 58(a):
“A mortgage is the transfer of an interest in specific immovable property for the purpose of securing a payment of money advance or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any), by which the transfer is effected is called a mortgage deed”.
22. There are six types of mortgage.
23. Section 58(c) deals with the mortgage with conditional sale, Section 58 (c) reads as follows;
“Where the mortgagor ostensibly sells the mortgaged property:
on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or
on condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
Under the proviso, unless the condition is embodied in the document which effects or purports to effect the sale shall be deemed to be a mortgage”.
24. In the instant case the description of Ex.B-3 says that it is a conditional sale deed, for a sum of Rs. 2,000/-. No doubt, there is a condition in Ex.B-3 to the effect that the sale was made on a condition that on default of payment of an amount of Rs. 2,000/-within three years, the sale shall become absolute. Further, the question that arise as to whether there is any mortgage or the sale consideration is a mortgage money.
25. The recitals of Ex.B-3 makes it clear that it is a simple conditional sale, there is no mortgage money in the said transaction. The vendors are not the mortgagors and the vendee (Defendant No. 1) is not the mortgagee. The sale consideration was not mortgage money and it was not an advance by way of loan.
26. Sri P. Sridhar Reddy, the learned Counsel appearing for the appellants-plaintiffs submits that there need not be any prior transaction of the creditor and the debtor and there can be mortgaged of the property on the date of executing the deed itself and submitted that there is specific condition in Ex.B-3 as conditional sale with a condition that if there is such a condition in the sale deed that in default of payment of money stipulated under the deed is not paid, the sale shall become absolute and the said transaction is called a mortgage by a conditional sale.
27. On the other hand, P. Srinivas appearing for M.V.S. Suresh Kumar submits that there shall be relationship of the debtor and creditor and taking into account the totality of the facts and surrounding circumstances, it shall attach as to whether Ex.B-3 sale deed or a mortgage by a conditional sale deed. Admittedly, in the instant case, there is no prior relationship of creditor or debtors among the parties and there is no prior transaction and nothing has mentioned in Ex.B-3 to the effect that the said amount was taken as a loan to clear of the debts or to perform the marriage of Defendant No. 2 or that they agreed to pay any interest and towards the interest the first defendant is entitled to enjoy the usufruct.
28. Under Sections 91 and 92 of the Evidence Act: If there is a documentary evidence the oral evidence has to be excluded and the documentary evidence alone has to be considered. The oral evidence of PW-1 cannot be read in Ex.B-3 conditional sale deed and the Trial Court erroneously gave weightage to the oral evidence of PW-1, contrary to the documentary evidence of Ex.B-3, B-5 to B-29 and the oral evidence of DW-1. Section 58 of the Transfer of Property Act makes it clear that there should be mortgage of immovable property for the purpose of securing the payment of the advance or to be advanced by way of existing or future debt. Admittedly, there was no debt, creditor or debtor relationship as on the date of Ex.B-3. The recitals of Ex.B-3 also do not disclose that the plaint schedule property was transferred for the purpose of securing the payment of the money advanced. In the absence of any specific recitals in Ex.B-3, it cannot be assumed and presumed that the amount of Rs. 2,000/- which was paid towards sale consideration by Defendant No. 1 is not a sale consideration, but it is only a loan amount. It is stated that the said Rs. 2,000/-is not the mortgage money as there is no relationship between the mortgagor and the mortgagee and there is no stipulation as regards payment of interest on the alleged loan and therefore, it cannot be called as a mortgage money and Ex-B-3 instrument cannot be called as mortgage deed, but it is a simple conditional sale deed only. The said contentions is fully supported by a careful reading of Section 58(a) and 58(c) of the Transfer of Property Act and also the judgments of this Court and Supreme Court. In a case of Bhoju Mandal v. Debnath Bhagat, , it was held by Apex Court:
“There is a clear legal distinction between the two concepts, a mortgage by conditional sale and a sale with a condition of repurchase. The former is a mortgage, the relationship of debtor and creditor subsists and the right to redeem remains with the debtor. The latter is an out and out sale whereby the owner transfers all his rights in the property to the purchaser reserving a personal right of repurchase. The question to which category a document belongs presents a real difficulty which can only be solved by ascertaining the intention of the parties on a consideration of the contents of a document and other relevant circumstances.”
29. In that case also a condition sale was made with right of purchaser and certain clause are to the effect that as the executant was badly in need of money for repayment of debts and to meet the expenses for purchasing the buildings and household expenses etc., they required money and hence on negotiations for the sale of the property with the purchaser, purchaser agreed to purchase the property and paid money in cash and repayment of the debt for meeting the other expenses. There are also several other conditions, but the Apex Court on considering the cumulative effect of the terms of the document in the context of surrounding circumstances, the said document was not a mortgage by conditional sale, but it was sale with a condition of re-purchase.
30. In the instant case also the said principles of Apex Court are applied and it is a clear case of conditional sale, but not a mortgage by conditional sale.
31. The learned Counsel appearing for the appellants mainly relied on the judgment in a case of P.L. Bapuswami v. N. Pattay Gounder, , the Supreme Court held that;
“The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee, the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. The distinction between the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the document viewed in the light of surrounding circumstances. If the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be law be permitted to be adduced to show in what manner the language of the deed was related to existing facts.”
32. In the said case there was a debtor and creditor relationship and the mortgagor paid a sum of Rs. 2,000/-towards usufruct, mortgage in respect of the properties and thereafter received a sum of Rs. 2,000/- and the total consideration was Rs. 4,000/- and there was a condition to reconveyance and having regard to the language of the document, therein their Lordships was of the opinion that the document therein was a mortgage by a conditional sale, but not a conditional sale. The question considered by the Apex Court, makes it clear that there was a creditor and debtor relationship and the vendee paid an amount of Rs. 2,000/- towards the earlier mortgage and the balance of Rs. 2,000/- was paid to the vendor by cash and in view of the creditor and debtor relationship the Supreme Court held that it was a mortgage by a conditional sale.
33. In a case of Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal, , the Apex Court while dealing with the question that there was a debtor and creditor relationship and therefore the Trial Court held that it was mortgage by conditional sale, but the same was confirmed by the lower Appellate Court, but the High Court set aside the concurrent finding and held that it was not a mortgage by conditional sale. On a Special Leave the Supreme Court held that it was only a interpretation of the said document and on considering the document in question therein having regard to the distinctions between mortgage and conditional sale and sale with a option to repurchase, observed that there was no debtor or creditor relationship and the amount was not at all taken as loan and as rightly observed by the High Court by executing a document, the executant discharged prior debt outstanding therefore the consideration amount was only with a condition of sale executed and there was no relationship of the debtor and creditor. A reading of the document as a whole, the Supreme Court of the view that there was no debtor and creditor relationship between the parties. It is stated that relationship of the debtor and creditor will be determined the nature of the transaction, the judgment of the High Court, stating that it is only a conditional sale and the right of repurchase was upheld by the Supreme Court.
34. In another case Smt. Indira Kaur v. Shri Shoe Lal Kapoor, , the property was in the possession of the original owner and the property was never mutated in the name of the transferee and in the fact, circumstances of that case it was held that it was a mortgage, by conditional sale, but not out and out sale. Admittedly, the document was executed pertaining to the ostensible sale of the property in question therein and on the same day temporary document was executed in favour of the original owner to sell the said property. As the possession of the property was continued in the name of the original owner and it was not mutated in the name of the transferee the Apex Court held that it was mortgage by conditional sale.
35. In a case of Vidhyadhar v. Mankikrao, . The Supreme Court held :
“basic principle is that the form of the transaction is not final and the intention of the party in entering into transaction. If the intention of the party was that the transfer was by way of the security, it would be a mortgage as between the parties to the document, the intention during the transaction as out and out sale as a mortage has to be found out on a consideration of the contents of the document in the light of surrounding circumstances.”
36. While considering the facts and circumstances of that case, the Apex Court observed and held that the document in question there was a mortgage by conditional sale, and there was stipulation in the said document that if the money was not paid on particular date and that document was treated as sale deed and therefore, the intention of the parties reflects in the contexts of the document, which is described as mortgaged by conditional sale. In the body of the document the mortgage has been specified. Having regard to the facts and circumstances of the case, the Apex Court observed that the fact that the condition of the repurchase is contained in the same document by it the mortgage was created, the deed in question was mortgage by a conditional sale.
37. In all the above cases, there is a debtor and creditor relationship, except in case of Mushir Mohammed Khan v. Smt. Sajeda Bano, , where it was a case of neither a mortgage by conditional sale or conditional sale deed, but it was a sale deed with a right to that of agreement of reconveyance. Therefore, it was held that on a consideration of the document, the transaction was not mortgage or mortgage by conditional sale nor a usufructuary mortgage.
38. In a case of Santakumari v. Janaki Amma, 2000 (5) ALD 79 (SC), Apex Court taking into account the whole transaction came to the conclusion that the document in question therein was a mortgage by conditional sale on interpretation of the document and keeping in view of the totality of the surrounding circumstances.
39. This Court in a case of Pobbati Obayya v. Amilineni Chinna Venkatappa, , narrated certain illustrations only which are not exhaustive as indicated in various decisions of Indian Courts and they are in general:
“(1) The existence of relationship of a creditor and debtor between the parties as on the date of the transaction.
(1) The period of repayment, a short period being indicative of a sale and a long period of a mortgage, The fact that time was made the essence of the contract to repurchase is not decisive.
(2) The continuance of the seller in possession indicates a mortgage.
(3) If there is a stipulation for payment of interest, on repayment it indicates a mortgage.
(4) A price below the true value indicates a mortgage; a fair market value is strong evidence that the transaction is a sale.”
40. Keeping in view of the said and other decisions laid down by the Apex Court and if the same are applied to the facts of the case as analyzed above, it is clear from Ex.B-3 document that it is a simple conditional sale deed with a right of repurchase within three years. Admittedly in this case, there is no any recital as to whether the said amount of Rs. 2,000/- paid towards mortgage consideration or a loan amount. Nowhere, it is mentioned that it was a loan amount in Ex.B-3. Nowhere it was mentioned in Ex.B-3 that they wanted to take amount as loan and defendant agreed to lend the said amount. There is no stipulation of interest and entire property was given in possession under Ex.B-3 document in favour of the defendant and Defendant No. 1 was continuously enjoying the said property. He has got mutation of the said property and all the cist receipts from Exs.B-5 to B-29 are in the name of Defendant, No. 1 only. Admittedly, the plaintiffs never exercised their right to repurchase the said property and they never offered to pay the said amount of Rs. 2,000/-. The first defendant has waited from 1966 to 1977 for a period of 10 long years and only in the 11th year, he has filed a suit. There is no evidence to show that he has offered during the period of 10 years of time for repayment of Rs. 2,000/-and he never demanded and the contention of PW1 is not supported by any documentary evidence. For the first time, he has issued Ex.A-1 notice for which reply has been given. The lower Appellate Court having considered all the facts and circumstances of the case and totality of the surrounding circumstances, rightly allowed the appeal and dismissed the suit.
41. For the reasons aforementioned, I do not find any merits in the appeal and I uphold the judgment and decree under appeal, and appeal is accordingly dismissed. Each party shall bear their own costs.