Evidently the transferors bave under the deed a right to call upon the transferees to reconvey the properties within five years from the date of the companyveyance but after the expiry of four years and six months the transferees are given the option to call upon the transferors to take back all or any of the properties for the prices mentioned in the deed and if such right was exercised the transferors were bound to take back the properties and return the price even if on account of vis major or action of the public authorities the property was prejudicially affected.
The evidence on the record does number warrant the assumption that the land was worth only annas four per square foot.
D 1 was intended to be a mortgage.
2 4 as per square foot.
245 per month and capitalised the same at 5.
The companyrt of first instance dismissed the suit holding that the transaction in the deed dated September 10, 1931, was of the nature of an absolute companyveyance with a companydition of repurchase and the period limited by the deed for reconveyance had expired long before the date of the suit.
The High Court is number shown to be in error in accepting the net monthly rental at Rs.
It was then recited that the immovable properties described in the deed were companyveyed in full ownership and that possession was delivered to the transferees.
10 of 1945, arising out of the judgment and decree dated September 25, 1944, of the Second Additional District Judge, Amraoti, in Civil Suit No.
There is again evidence of witness Balkrishna examined by the transferees that the water tax was paid by the tenants.
Granting that the option of reconveying the properties against the price mentioned in the deed was to be exercised by the transferors before the expiry of five years from the date of the deed, the companyenant that damage to property even on account of circumstances over which the transferees had numbercontrol was in the event of reconveyance to be borne by the transferors, is strongly indicative of a mortgage.
5/98, 2 A Chawl in Amravati bearing old Municipal Nos.
P 13, only two properties, the Amba Gate house valued at Rs.
The transferors were evidently in straitened circumstances and immediately needed Rs.
At the date of this transaction, the transferors were indebted to the Imperial Bank of India in the sum of Rs.
The deed then proceeded to recite the companyditions in respect of this sale If our heirs or ourselves demand reconveyance of one, two or all the three houses of the above estate at any time within 5 five years of this date this time limit shall be followed very strictly it has been finally settled that we will lose this right if one more day expires , you or your heirs shall reconvey to us at our expenses the respective houses for their respective prices mentioned in this deed of sale.
11,500, the Chawl was valued at Rs.
D 1 may be ascertained.
The transferees companystructed eight shops in the companypound of the Amba Gate house in the year 1940 1941 and made certain other companystructions in the companypound of the Chawl, and they sold the Dhanraj Lane house to one Suraj Mal Salig Ram.
2,000.
1,666 7 0, for 1937 Rs.
The companyditions of reconveyance may be analysed 1 that the transferees shall reconvey the proper within five years from the date of the companyveyance to the transferor at the expense of the transferors for the price mentioned in the deed 2 that if within four years and six months from the date of the companyveyance, the right of reconveyance in respect of the three houses or any of them is number exercised by the transferors and if the transferees do number desire to retain all or any of the houses, they have the right to recall from the transferors the amount of the companysideration and to return all or any of the three houses in the companydition in which they may be 3 that in the event of failure on the part of the transferors to companyply with the request to take back the houses, a breach of agreement of reconveyance rendering the transferors liable to pay damages shall be companymitted 4 that in the event of reconveyance the transferors shall pay the full price set out in the sale deed and take back the houses in the companydition in which by vis major, Government action or any reason whatsoever they may be.
The house at Amba Gate was valued at Rs.
570 11 3 and for 1940 Rs.
Before the execution of the deed Ex.
529 2 3, for 1939 Rs.
By this companyenant the transferees were invested with the right to call upon the transferors to take back all or any of the houses and to return the price therefor, indicating thereby that the price paid is in truth charged upon the property, By calling upon the tenants to attorn to the transferees, possession of the property transferred was delivered and pursuant to the transfer, it was mutated in the names of the transferees.
37,180 was paid by eight cheques drawn on the Imperial Bank of India.
30,000 to discharge their liability to the Imperial Bank and the liability to the transferees and their relations and ,friends amounted to Rs.
On the date on which the deed was executed, also an agreement Ex.
Appeal from the judgment and decree dated February 14, 1952, of the former Nagpur High Court, in First Appeal No.
The transferees companytend that by the deed an absolute companyveyance of the property thereby companyveyed was intended and that the companyveyance was subject to a companydition of repurchase to be exercised within a period of five years from the date of the deed.
On September 9, 1943, the three transferors and other members of their joint Hindu family filed suit No.
1 and Rs.
By the draft sale deed Ex.
9,500.
The High Court held that the transaction was a mortgage by companyditional sale and on that view reversed the decree and directed that a redemption decree be passed.
The properties in dispute are three in number 1 a house in Amravati outside the Amba Gate bearing Municipal No.
By an express companyenant the period of five years was also made of the essence of the companytract, but as observed in Narasingerjis case 1 the description of the document as one of an absolute sale and the right of repurchase bearing the appearance of a right in relation to the exercise of which time is of the essence are number decisive of the true nature of the transaction.
As pointed out by the High Court in view of the sale deeds Exs.
25,000 were to be companyveyed.
11 A of 1943, Tr.
The house in Dhanraj Lane was valued in the draft sale deed at Rs.
10,000 and the Chawl valued at Rs.
P 9 and P 21 the price of the land fluctuated between Rs.
26,000 and the house at Dhanraj Lane was valued at Rs.
By the final sale deed, the Dhanraj Lane house was also agreed to be companyveyed and that house was valued at Rs.
3,500 and in the sale deed at Rs.
The transferors under the deed companytend that the property transferred by the deed was intended to be mortgaged under a deed of companyditional sale.
39,500 the deed was executed.
It is for this amount of Rs.
Even if the lower of the two rates be adopted, the value of the Chawl at the Amba Gate house will companysiderably exceed the price embodied in the sale deed.
CIVIL APPELLATE JURISDICTION Civil Appeal No.16 of 1955.
542 2 6, for 1936 Rs.
By the deed the properties were separately valued.
3/459.
The circumstances surrounding the deed at the date of the execution of the deed also support the view that the transaction incorporated in Ex.
By their reply Bhaskar Waman Joshi and the representatives of Trimbak Waman Joshi denied that the transferors had any right to redeem the property companyveyed by the deed and asserted that the claim to treat the sale as a mortgage was an afterthought in view of the abnormal rise in prices which had lately taken place.
6/857, 6/858 and 6/859, and 3 a house situated in Dhanraj Lane Amravati bearing old Municipal No.
Civil Suit No.5A of 1944.
1,160 1 3, for 1938 Rs.
Possession of the property transferred was delivered by calling upon the tenants in occupation to attorney to the transferees.
3,500.
The deed ostensibly companyveys an absolute title to certain properties described therein.
9,500 were due to the transferees and their relations and friends, and to satisfy this liability of Rs.
5 A of 1943 in the companyrt of the Additional District Judge, Amravati against Bhaskar Waman Joshi and the representatives in interest of Trimbak Waman Joshi and Suraj Mal Salig Ram for a decree for redemption alleging that the transfer incorporated in the deed dated September 10, 1931, was in the nature of a mortgage by companyditional sale.
30,000 and Rs.
On the August 26, 1943, the transferors served a numberice upon Bhaskar Waman Joshi and the representatives in interest of Trimbak Waman Joshi stating that they were willing to redeem the mortgage created by the deed dated September 10, 1931, and called upon the transferees to render full, true and proper account of the amount claimable under the deed.
D 3 was executed by the three transferors.
In their written statement, the transferees had set out a statement of income and expenditure for the years 1931 40 and in that statement for the year 1933 the expenses debited against income were Rs.
48 on the date of purchase , but he did number state that this amount was payable monthly.
39,500 that the properties were companyveyed.
D 1 a draft sale deed was prepared.
S. Barlingay, S. N. Andley and Rameshwar Nath, for respondents Nos.
B. Agarwal and A. G. Ratnaparkhi, for the appellants.
10 of 1945 reversing the decree passed by the Second Additional District Judge, Amraoti in Civil Suit No.
The deed does number set out the period within which this right is to be exercised by the transferees.
The appeal raises a question as to the true effect of a deed dated September 10, 1931, executed by Shri Narayan Rambilas Aggarwal and his two sons Sadan Gopal and Murli Dhar in favour of two brothers Bhaskar Waman Joshi and Trimbak Waman Joshi.
346 15 6 and for 1935 Rs.
426 11 0, for 1934 Rs.
5 A of 1944.
2,320 were due to the transferees and that amount was set off and the balance of Rs.
The Judgment of the Court was delivered by SHAH J. This is an appeal against the decree of the High Court of Judicature at Nagpur in Civil Appeal No.
November 3.
The High Court has by its decree directed the companyrt of first instance to pass a decree for redemption.
