Though the transaction and condition to repurchase are embodied in one document, having regard to the intention of the parties and the surrounding circumstances, in our considered view, Ex.P-73 does not fall within the proviso to Section 58(c) of the Transfer of Property Act. Ex.P-73 a registered document, in our considered view, is not a mortgage but a transaction of sale with condition to repurchase. The High Court and the first Appellate Court did not properly appreciate the recitals in Ex.P-73 and that it does not create expressly or by implication the relationship of debtor and creditor. The High Court failed to note that since Shripad Joshi failed to pay the amount within the 23 stipulated period of five years, the respondents-plaintiffs have lost their right to repurchase the property. When the findings of the first Appellate Court and the High Court though concurrent, whey they are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the courts below. The High Court has not properly appreciated the evidence and Ex.P-73 in the light of the surrounding circumstances and the impugned judgment is liable to be set aside.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7448 OF 2008
DHARMAJI SHANKAR SHINDE
AND OTHERS …Appellants
VERSUS
RAJARAM SHRIPAD JOSHI (DEAD)
THROUGH LRs. AND OTHERS …Respondents
WITH
CIVIL APPEAL NO.7449 OF 2008
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the judgment dated 15.11.2006
passed by the High Court of Bombay dismissing the Second
Appeal No.887 of 2003 thereby upholding the decision of the first
Appellate Court holding that Ex.P-73 is a “mortgage by conditional
sale” and that the respondents-plaintiffs are entitled to redeem the
suit property upon payment of the balance amount.
1

  1. Facts giving rise to these appeals are that the respondentsplaintiffs filed a suit for redemption of the suit property bearing
    S.No.147 present G.No.750 admeasuring 2 Hectares 18 Are
    situated in village Kudal, Jawli taluka and district Satara. Case of
    the respondents-plaintiffs is that the suit property was mortgaged
    by their father Shripad Joshi on 28.07.1967 in favour of Shankar
    Shinde who is the predecessor-in-interest of the appellantsdefendants for Rs.2500/-. The said deed (Ex.P-73) is a deed of
    “mortgage by conditional sale” with a condition that if the amount is
    not repaid within a period of five years from the date of execution
    of the deed, then the same would be treated and construed as an
    absolute sale between the parties conferring absolute right of
    ownership on Shankar Shinde and his legal representatives. As
    per the recitals in the document, the possession of the suit property
    was also handed over to Shankar Shinde on the date of execution
    of the deed. The respondents-plaintiffs further averred that on
    26.07.1972, their father had paid an amount of Rs.800/- to Shankar
    Shinde and to that effect Ex.P-69-receipt was executed. Shripad
    Joshi died in the year 1973 and the respondents-plaintiffs
    succeeded to his estate. Further case of the respondents-plaintiffs
    is that in spite of repeated request to the appellants-defendants for
    2
    redemption of the suit property and delivery of possession of the
    property, they failed to receive the money and had not handed over
    the possession of the property. After issuance of legal notice dated
    19.02.1980, the plaintiffs filed the suit for redemption of the
    mortgage.
  2. The appellants-defendants resisted the suit contending that
    the transaction between their father-Shankar Shinde and the father
    of the respondents-plaintiffs-Shripad Joshi was a sale with
    condition to repurchase within a stipulated period of five years.
    Case of defendants is that since Shripad Joshi, father of the
    respondents-plaintiffs failed to repay the money within the
    stipulated period of five years and failed to take any step to get the
    property reconveyed to them, after the period of five years as per
    the terms and conditions of Ex.P-73, father of the appellantsdefendants Shankar Shinde has become the absolute owner of the
    suit property and the plaintiffs have no right, title or interest in the
    suit property.
  3. The trial court dismissed the respondents-plaintiffs suit by
    holding that the relationship of debtor and creditor is not
    established and the respondents have failed to prove that the
    transaction (Ex.P-73) was a mortgage and therefore, they are not
    3
    entitled to redemption and possession of the suit property. After
    referring to the recitals in Ex.P-73, the trial court held that the
    respondents-plaintiffs have agreed that if Shripad Joshi does not
    pay the amount within stipulated period of five years, the said
    document was to be treated as sale deed and in his life time
    executant Shripad Joshi did not take any action to get the property
    reconveyed. The trial court also held that Ex.P-69-receipt has not
    been proved by the respondents-plaintiffs and the respondentsplaintiffs are not entitled to the decree prayed for by them.
  4. In appeal, the first Appellate Court set aside the judgment of
    the trial court by holding that Ex.P-73 is a “mortgage by conditional
    sale” and not an absolute sale deed or a sale with a condition to
    repurchase. The first Appellate Court held that payment of
    Rs.800/- by Shripad Joshi has been proved and that the
    respondents have proved the execution of Ex.P-69-receipt by
    examining Prabhakar (PW-2) who is the son of the scribe of Ex.P69-receipt. The first Appellate Court held that Ex.P-73 was a
    “mortgage with conditional sale” as per proviso to clause (c) of
    Section 58 of the Transfer of Property Act and that the respondents
    are entitled to redeem the mortgage subject to the payment of
    balance amount of Rs.1700/-. Being aggrieved by the judgment of
    4
    the first Appellate Court, the appellants preferred second appeal
    before the High Court which came to be dismissed by the
    impugned judgment.
  5. Taking us through the evidence and materials on record, the
    learned counsel for the appellants submitted that the amount of
    Rs.2500/- was paid by Shankar Shinde as consideration for the
    sale and the recitals in Ex.P-73-document clearly show that the
    transaction was a sale with condition for reconveyance. It was
    submitted that during the five years, original owner Shripad Joshi
    did not repay the amount within the stipulated period of five years
    and take steps to get reconveyance of the property and therefore,
    the document dated 28.07.1967 has become an absolute sale. It
    was submitted that merely because the clause regarding sale and
    agreement to repurchase are embodied in the same document,
    proviso to clause (c) of Section 58 of the Transfer of Property Act is
    not attracted and it cannot be said that the transaction is a
    mortgage. It was urged that the first Appellate Court and the High
    Court failed to consider the intention of the parties and the
    surrounding circumstances which clearly show that the parties
    intended Ex.P-73 to be a transaction of sale with condition to
    repurchase and not mortgage by conditional sale. It was further
    5
    submitted that the execution of Ex.P-69-receipt has not been
    proved by the plaintiffs and the first Appellate Court and the High
    Court erred in reversing the well-considered judgment of the trial
    court.
  6. Per contra, the learned counsel for the respondents-plaintiffs
    submitted that since the sale and agreement to repurchase are
    embodied in the same document, in view of the mandatory
    provision of the proviso to clause (c) of Section 58 of the Transfer
    of Property Act, the transaction is to be treated as a “mortgage by
    conditional sale” which the respondents-plaintiffs are entitled to
    redeem. According to the respondents-plaintiffs, though the words
    “….conditional sale….” have been used in the Ex.P-73, parties
    intended it to be only a mortgage and not a conditional sale with
    condition to repurchase. The learned counsel for the respondentsplaintiffs contended that the first Appellate Court rightly accepted
    Ex.P-69-receipt under which the plaintiffs paid a sum of Rs.800/-
    and the first Appellate Court rightly held that the document dated
    28.07.1967 is a “mortgage by conditional sale” and not a sale with
    condition for reconveyance.
  7. We have heard Ms. Qurratulain, learned counsel for the
    appellants and Mr. Arvind S. Avhad, learned counsel for the
    6
    respondents-plaintiffs and perused the impugned judgment and the
    judgment of the trial court and materials placed on record.
  8. In these appeals, the question falling for consideration is the
    interpretation of Ex.P-73-document dated 28.07.1967. Upon
    consideration of the submissions, the following questions arise for
    determination in these appeals:-
    (i) Whether the respondents-plaintiffs are right in
    contending that in view of the statutory provision viz.
    proviso to clause (c) of Section 58 of the Transfer of
    Property Act, Ex.P-73-document dated 28.07.1967 is
    to be held as a mortgage by conditional sale?
    (ii) Whether the clause in Ex.P-73-document that in case
    of non-payment of the amount within the stipulated
    period of five years, the sale will become permanent
    and the transferee will have an absolute right are not
    consistent with the intention of the parties of making
    the transaction a conditional sale with an option to
    repurchase?
  9. Section 58(c) of the Transfer of Property Act contains the
    definition of “mortgage by conditional sale”. In a “mortgage by
    conditional sale”, the transfer is made as a security to a loan
    taken by the mortgagor-owner; whereas in a “sale with a condition
    to repurchase”, the sale is made by the vendor-owner reserving
    with himself a right to repurchase it within a stipulated time. A
    7
    sale with a condition of retransfer is not a mortgage since the
    relationship of debtor and creditor does not exist and there is no
    debt for which the transfer is made as a security. Whether the
    document is a “mortgage by conditional sale” or “sale with a
    condition to repurchase” is to be ascertained from the intention of
    the parties. It is trite law that the intention of the parties should be
    gathered from the recitals of the document itself.
  10. Section 58(c) of the Transfer of Property Act deals with
    “mortgage by conditional sale” which reads as under:-
    “58. …….
    (c) Mortgage by conditional sale.—Where the mortgagor ostensibly
    sells the mortgaged property—
    on a condition that on default of payment of the mortgagemoney 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 a 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:
    Provided that no such transaction shall be deemed to be a
    mortgage, unless the condition is embodied in the document
    which effects or purports to effect the sale.”
    (emphasis added)
  11. Proviso to Section 58(c) was added by Act 20 of 1929. Prior
    to the amendment, there was a conflict of decisions on the
    8
    question whether the condition contained in a separate deed
    could be taken into account in ascertaining whether a mortgage
    was intended by the principal deed. The conflict was resolved by
    adding proviso to Section 58(c). Considering the scope of
    proviso to Section 58(c) which was added by Act 20 of 1929 and
    elaborating upon the distinction between “mortgage by conditional
    sale” and “sale with agreement to repurchase”, in Bhaskar
    Waman Joshi (deceased) v. Shri Narayan Rambilas Agarwal
    (deceased) (1960) 2 SCR 117 : AIR 1960 SC 301, it was
    held as under:-
    “6. The proviso to this clause was added by Act 20 of 1929. Prior to
    the amendment there was a conflict of decisions on the question
    whether the condition contained in a separate deed could be taken
    into account in ascertaining whether a mortgage was intended by the
    principal deed. The Legislature resolved this conflict by enacting that a
    transaction shall not be deemed to be a mortgage unless the condition
    referred to in the clause is embodied in the document which effects or
    purports to effect the sale. But it does not follow that if the condition is
    incorporated in the deed effecting or purporting to effect a sale a
    mortgage transaction must of necessity have been intended. The
    question whether by the incorporation of such a condition a transaction
    ostensibly of sale may be regarded as a mortgage is one of intention
    of the parties to be gathered from the language of the deed interpreted
    in the light of the surrounding circumstances. The circumstance that
    the condition is incorporated in the sale deed must undoubtedly be
    taken into account, but the value to be attached thereto must vary with
    the degree of formality attending upon the transaction. The definition
    of a mortgage by conditional sale postulates the creation by the
    9
    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.
    What distinguishes 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 definition of a mortgage
    by conditional sale itself contemplates an ostensible sale of the
    property. ……”
  12. As per proviso to Section 58(c), if the sale and agreement to
    repurchase are embodied in the separate documents then the
    transaction cannot be a “mortgage by conditional sale”
    irrespective of whether the documents are contemporaneously
    executed; but the converse does not hold good. Observing that
    the mere fact that there is only one document, it does not
    necessarily mean that it must be a mortgage and cannot be a
    sale, in Chunchun Jha v. Ebadat Ali and another AIR 1954 SC
    345, it was held as under:-
    “6. The first is that the intention of the parties is the determining factor:
    see Balkishen Das v. Legge 27 IA 58. But there is nothing special
    about that in this class of cases and here, as in every other case
    where a document has to be construed, the intention must be
    gathered, in the first place, from the document itself. If the words are
    express and clear, effect must be given to them and any extraneous
    enquiry into what was thought or intended is ruled out. The real
    question in such a case is not what the parties intended or meant but
    what is the legal effect of the words which they used. If, however, there
    is ambiguity in the language employed, then it is permissible to look to
    10
    the surrounding circumstances to determine what was intended. As
    Lord Cranworth said in Alderson v. White 44 ER 294 at 928:
    “The rule of law on this subject is one dictated by
    commonsense; that prima facie an absolute conveyance,
    containing nothing to show that the relation of debtor and
    creditor is to exist between the parties, does not cease to be an
    absolute conveyance and become a mortgage merely because
    the vendor stipulates that he shall have a right to repurchase….
    In every such case the question is, what, upon a fair
    construction, is the meaning of the instruments?”
  13. Their Lordships of the Privy Council applied this rule to India in
    Bhagwan Sahai v. Bhagwan Din 17 IA 98 at 102 and in Jhanda Singh
    v. Wahid-ud-din 43 IA 284 at 293.
  14. The converse also holds good and if, on the face of it, an instrument
    clearly purports to be a mortgage it cannot be turned into a sale by
    reference to a host of extraneous and irrelevant considerations.
    Difficulty only arises in the border line cases where there is ambiguity.
    Unfortunately, they form the bulk of this kind of transaction.
  15. Because of the welter of confusion caused by a multitude of
    conflicting decisions the legislature stepped in and amended Section
    58(c) of the Transfer of Property Act. Unfortunately that brought in its
    train a further conflict of authority. But this much is now clear. If the
    sale and agreement to repurchase are embodied in separate
    documents, then the transaction cannot be a mortgage whether the
    documents are contemporaneously executed or not. But the converse
    does not hold good, that is to say, the mere fact that there is only one
    document does not necessarily mean that it must be a mortgage and
    cannot be a sale. If the condition of repurchase is embodied in the
    document that effects or purports to effect the sale, then it is a matter
    for construction which was meant. The legislature has made a clear
    cut classification and excluded transactions embodied in more than
    one document from the category of mortgages, therefore it is
    reasonable to suppose that persons who, after the amendment,
    choose not to use two documents, do not intend the transaction to be
    a sale, unless they displace that presumption by clear and express
    11
    words; and if the conditions of Section 58(c) are fulfilled, then we are
    of opinion that the deed should be construed as a mortgage.
    (emphasis added)
    In Chunchun Jha, after considering the recitals in the document
    thereon and the surrounding circumstances thereon, the Supreme
    Court held that there was a relationship of debtor and creditor
    between the parties existing at the time of the suit transaction.
  16. The question in each case is the determination of the real
    character of the transaction to be ascertained from the provisions
    of the deed viewed in the light of the surrounding circumstances.
    If the words are plain and unambiguous then in the light of the
    evidence of the surrounding circumstances, it must be given their
    true legal effect. If there is any ambiguity in the language
    employed, the intention is to be ascertained from the contents of
    the deed and the language of the deed is to be taken into
    consideration to ascertain the intention of the parties. Evidence of
    contemporaneous conduct of the parties is to be taken into
    consideration as the surrounding circumstances.
  17. After referring to number of judgments and the essentials of
    agreement to qualify as a “mortgage by conditional sale”, in
    12
    Vithal Tukaram Kadam and another v. Vamanrao Sawalaram
    Bhosale and others (2018) 11 SCC 172, it was held as under:-
    “14. The essentials of an agreement to qualify as a mortgage by
    conditional sale can succinctly be broadly summarised. An ostensible
    sale with transfer of possession and ownership, but containing a
    clause for reconveyance in accordance with Section 58(c) of the Act,
    will clothe the agreement as a mortgage by conditional sale. The
    execution of a separate agreement for reconveyance, either
    contemporaneously or subsequently, shall militate against the
    agreement being mortgage by conditional sale. There must exist a
    debtor and creditor relationship. The valuation of the property and the
    transaction value along with the duration of time for reconveyance are
    important considerations to decide the nature of the agreement. There
    will have to be a cumulative consideration of these factors along with
    the recitals in the agreement, intention of the parties, coupled with
    other attendant circumstances, considered in a holistic manner.”
    In the light of the consistent view taken in various decisions, let us
    consider whether Ex.P-73 is a “mortgage by conditional sale” or
    a “sale with condition for reconveyance” and whether there exists
    any debtor and creditor relationship.
  18. Intention of the parties as seen from the recitals of
    Ex.P-73:- By perusal of Ex.P-73, it is clear that eight days prior to
    Ex.P-73, Shripad Joshi has borrowed orally a sum of Rs.700/- for
    the purpose of marriage of his daughter. At the time of execution
    of Ex.P-73 (28.07.1967), Shirpad Joshi required more money for
    the same reason and he executed Ex.P-73-document titled as
    13
    “mortgage by conditional sale” for a consideration of Rs.2500/-
    and on the date of execution of the said document, Shripad Joshi
    received only a sum of Rs.1800/-. The earlier borrowed amount
    of Rs.700/- was thus adjusted from the sale consideration of
    Rs.2500/-. The intention of the parties in putting an end to the
    debtor-creditor relationship with respect to the sum of Rs.700/- is
    clear from the recitals of the document i.e. adjustment of Rs.700/-
    from the total consideration of Rs.2500/- and parties intending to
    create a relationship of vendor and vendee by transfer of the suit
    property for a consideration of Rs.2500/-. Period of five years
    was fixed in Ex.P-73 within which Shirpad Joshi-father of the
    respondents-plaintiffs was to repay the said amount. On the date
    of execution of the document (Ex.P-73), the possession of the
    property was handed over to the appellants-defendants for
    cultivation. Further, recitals are to the effect that if the
    consideration amount is paid within five years, Shripad Joshiexecutant will get the mortgage redeemed. In case, the amount
    is not paid within the stipulated period of five years, the mortgage
    shall be treated as an absolute sale and thereafter Shankar
    Shinde to pay the land revenue to the government and all other
    charges for which executant will have no complaint. The recitals
    14
    of the document make clear the intention of the parties that if the
    amount is not repaid within the stipulated period of five years, the
    transferee will have absolute right and the mortgage will be
    treated as an absolute sale and the transferee to pay the land
    revenue and the other charges. These clauses in Ex.P-73, in our
    view, are consistent with the intention of the parties making the
    transaction a conditional sale with an option to repurchase.
  19. Admittedly, executant of Ex.P-73, Shripad Joshi expired in
    the year 1973 and till his life time, he never took any action or
    step to get the property reconveyed. After death of Shripad Joshi
    in the year 1973, no immediate action was taken by his
    successor. Obviously, all the legal action were started in the year
    1980 by the present plaintiffs based upon a receipt-Ex.P-69 dated
    26.07.1972 under which an amount of Rs.800/- is said to have
    been paid to Shankar Shinde. Much emphasis has been placed
    by the respondents-plaintiffs on Ex.P-69-receipt which we would
    refer a little later. When being confronted with the recitals in
    Ex.P-73, in his cross-examination, PW-1-Rajaram Joshi admitted
    that “the transaction was that of sale with the condition of
    repurchase” and “neither parties are described therein as
    mortgagor or mortgagee”. Admission of PW-1 is a formidable
    15
    evidence indicating the intention of the parties. Having not paid
    the amount within the stipulated period of five years, the plaintiffs
    have lost their right to repurchase.
  20. Mention of “borrowed a sum of Rs.700/-“ in the document is
    incidental. Mere incorporation of the word “borrowed” and
    “mortgage by conditional sale” cannot by itself establish that there
    is a debtor-creditor relationship. In fact, as pointed out earlier, the
    recitals of the document make it clear that the parties expressed
    their intention to put an end to the debtor-creditor relationship with
    respect to the sum of Rs.700/- that existed prior to the execution
    of Ex.P-73 and creating a relationship of vendor and vendee by
    transfer of the suit property for consideration of Rs.2500/-. As
    rightly observed by the trial court, in Ex.P-73, there is no mention
    of the rate of interest, right of foreclosure that are essential in a
    deed of mortgage.
  21. The contention of the respondents is that in view of the
    mandatory provisions of the proviso to clause (c) of Section 58 of
    the Act, since the sale and the agreement to repurchase are
    embodied in the same document (Ex.P-73), the transaction is to
    be taken as a mortgage and the conditions enumerated in proviso
    to Section 58(c) of the Transfer of Property Act have been
    16
    satisfied in the present case. On behalf of the respondents, it
    was submitted that the existence of creditor-debtor relationship
    can be derived from the recital in the document “I have
    borrowed”. As pointed out earlier, there are no recitals in the
    document to establish creditor-debtor relationship; nor does it
    contain the right of foreclosure, payment of interest etc. which are
    essential requirements in a deed of mortgage.
  22. As per Section 58(a) of the Transfer of Property Act, the
    mortgage is the transfer of an interest in specific immovable
    property as security for the repayment of the debt; but such
    interest itself is immovable property. In the case in hand, nonmention of the mortgage amount for which the interest in the
    immovable property was created as security, indicate that the
    parties have never intended to create a mortgage deed. If really
    the parties have intended the transaction to be a mortgage, while
    handing over possession of the property to Shankar Shinde for
    cultivation, the parties would have stated that the cultivation and
    enjoyment of usufructs are in lieu of the interest payable by
    Shripad Joshi on the amount. But that was not to be so. The
    transfer of possession and right to cultivate the suit land could be
    conceived as the intention of the executant to transfer the right,
    17
    title and interest in the property which are essentials in any
    transaction of a sale.
  23. Moreover, as per the clauses in Ex.P-73-document, the
    possession of the suit property was also handed over to Shankar
    Shinde-father of the appellants. Though, it is stated that the
    transferee-Shankar Shinde was to pay the revenue to the
    government after five years, according to the appellants, ever
    since 1967, land revenue was paid by the father of the appellants.
    In his evidence, PW-1 admitted that revenue cess of the suit
    property has been paid by Shankar Shinde from 1967 and after
    his demise, by his legal heirs. Likewise, a mutation was also
    effected in the name of Shankar Shinde even in the year 1967.
    During his life time, father of the respondents-Shripad Joshi has
    not raised any objection to the mutation nor for the payment of the
    revenue cess by Shankar Shinde. Considering the
    contemporaneous conduct of the parties, it is clear that Shankar
    Shinde and thereafter the appellants were dealing with the suit
    property as if they were the owners of the land. The clause in
    Ex.P-73 that if the amount is not paid within a period of five years,
    the transaction will become a permanent sale deed and
    thereafter, the transferee will have the absolute right over the
    18
    property are consistent with the express intention of parties
    making the transaction a conditional sale with option to
    repurchase.
  24. The respondents-plaintiffs contended that the market value
    of the suit property was higher than the transaction value and
    therefore, Ex.P-73 is to be construed as a mortgage. In support
    of their contention, reliance was placed upon the judgment in
    Vithal Tukaram. The facts in Vithal Tukaram are clearly
    distinguishable with the facts and evidence on record in the
    present case. In that case, the value of the land was Rs.3500/-
    far in excess of the amount of Rs.700/- mentioned in the
    document. Considering the evidence of the respondentdefendant thereon and the facts of the said case, the Supreme
    Court held that the value of the land was far in excess of Rs.700/-
    mentioned in the agreement. Further, in the said case, the
    defendant thereon did not take any step for mutation of the land
    for three long years and the plaintiff thereon specifically objected
    to mutation in the name of respondent-defendant. The case in
    hand is clearly distinguishable on facts.
  25. In the present case, there are no averments in the plaint as
    to the market value of the property and as to the inadequacy of
    19
    the consideration. In his evidence, PW-1 has stated that the
    transaction of absolute sale could have been worth Rs.60,000-
    70,000/- in the year 1967; but the respondents-plaintiffs have not
    produced the certificate of valuation of the land or the circle rate
    of the property at the time when Ex.P-73 was executed. The
    appellants contended that the suit property was sold for a proper
    consideration and relied upon the transaction that took place in
    the village in the year 1957 to establish that the sale
    consideration is appropriate. The trial court while deciding issue
    No.4 has held that the respondents-plaintiffs have failed to
    adduce any evidence to show that the market value of the suit
    property in the year 1967 was much more than what was paid by
    the appellants-defendants.
  26. The respondents-plaintiffs have placed much reliance upon
    Ex.P-69-receipt to show that Shripad Joshi paid an amount of
    Rs.800/- to Shankar Shinde who in turn executed the receipt
    dated 26.07.1972 in favour of his father and at that time, PW-1
    was also present. The appellants-defendants contend that Ex.P69-receipt is forged. Admittedly, neither parties to Ex.P-69-receipt
    nor the scribe who wrote the receipt are alive. In the light of
    defence plea questioning the correctness of Ex.P-69, the burden
    20
    of proof is on the respondents-plaintiffs to adduce the best
    possible evidence to prove Ex.P-69-receipt. The respondentsplaintiffs examined PW-2-Prabhakar, son of the scribe-Gopal
    Tukaram Shivade to identify the handwriting and signature of the
    scribe of Ex.P-69. In his evidence, PW-2 stated that he is
    acquainted with the handwriting and signature of his father and
    that Ex.P-69-receipt was written by his father.
  27. Gopal Tukaram Shivade-scribe, father of PW-2, was a
    Police Patil of Kudal for ten years and he expired in the year
  28. Ex.P-69-receipt was of the year 1972 and PW-2 was
    examined in the year 1994. After perusal of Ex.P-69-receipt, the
    trial court held that there are glaring defects in the said receipt i.e.
    faded and incomplete thumb impression of Shankar Shinde on
    the revenue stamp. The trial court has observed that except the
    evidence of PW-2, no other evidence has been adduced by the
    respondents-plaintiffs to prove Ex.P-69-receipt. Since the scribe
    was a Police Patil of Kudal, it was very much possible for the
    respondents-plaintiffs to prove the execution of the document by
    producing the admitted handwriting of the scribe so as to
    compare them with the questioned writing in the receipt. The trial
    court also pointed out that though PW-1-Rajaram Joshi claims
    21
    that he was present at the time of execution of Ex.P-69, PW-1
    had not signed in it nor attested it, so PW-1’s evidence is of no
    help to prove the execution of the receipt. Be it noted that though
    Ex.P-69-receipt was of the year 1972, during his life time, based
    on Ex.P-69-receipt, Shripad Joshi had not taken any step to
    redeem the property. Even after death of Shripad Joshi in 1973,
    Ex.P-69-receipt did not see the light of the day till 1980 when the
    notice was said to have been issued by the respondents-plaintiffs.
    In these factual circumstances, it cannot be said that the plaintiffs
    have discharged the burden in proving Ex.P-69-receipt as
    genuine to hold that the parties had intended that Ex.P-73-
    document is only a “mortgage by conditional sale” and not a sale
    with condition to repurchase. The receipt Ex.P-69 cannot be
    relied upon as corroborative piece of evidence to hold that part
    payment was made by Shripad Joshi and that the parties treated
    Ex.P-73 as a “mortgage by conditional sale”.
  29. When Ex.P-73 is clear and unambiguous, the first Appellate
    Court erred in relying upon Ex.P-69-receipt to draw inference as
    to the intention of the parties. The first Appellate Court did not
    keep in view that the appellants-defendants have denied Ex.P-69-
    receipt, hence, burden lies upon the plaintiffs to prove the
    22
    contents of Ex.P-69 to bring in the intention of the parties that the
    transaction between the parties was only a “mortgage by
    conditional sale”. When the recitals in Ex.P-73-document is
    sufficient to gather the intention of the parties, the first Appellate
    Court erred in placing reliance on Ex.P-69-receipt to ascertain the
    intention of the parties to upset the findings of fact recorded by
    the trial court. The findings of the first Appellate Court and the
    High Court in placing reliance upon Ex.P-69-receipt to conclude
    that the transaction was a mortgage and not a sale are erroneous
    and the same cannot be sustained.
  30. Though the transaction and condition to repurchase are
    embodied in one document, having regard to the intention of the
    parties and the surrounding circumstances, in our considered
    view, Ex.P-73 does not fall within the proviso to Section 58(c) of
    the Transfer of Property Act. Ex.P-73 a registered document, in
    our considered view, is not a mortgage but a transaction of sale
    with condition to repurchase. The High Court and the first
    Appellate Court did not properly appreciate the recitals in Ex.P-73
    and that it does not create expressly or by implication the
    relationship of debtor and creditor. The High Court failed to note
    that since Shripad Joshi failed to pay the amount within the
    23
    stipulated period of five years, the respondents-plaintiffs have lost
    their right to repurchase the property. When the findings of the
    first Appellate Court and the High Court though concurrent, whey
    they are shown to be perverse, this Court would certainly interfere
    with the findings of fact recorded by the courts below. The High
    Court has not properly appreciated the evidence and Ex.P-73 in
    the light of the surrounding circumstances and the impugned
    judgment is liable to be set aside.
  31. In the result, the impugned judgment of the High Court in
    Second Appeal No.887 of 2003 dated 15.11.2006 is set aside and
    these appeals are allowed. The Suit No.100/89 filed by the
    respondents-plaintiffs is dismissed and the judgment of the trial
    court shall stand restored. No order as to cost.
    ..………………………….J.
    [R. BANUMATHI]
    …………………………….J.
    [R. SUBHASH REDDY]
    New Delhi;
    April 23, 2019.
    24