Case Details Prakash (Dead) by Lr. vs G. Aradhya and Ors.

Court

Supreme Court of India

Date

18 August 2023

Case No.

Civil Appeal No. 706 of 2015

Result

Dismissed

Bench

Hima Kohli, Rajesh Bindal

Citation

[2023] 12 S.C.R. 1034 : 2023 INSC 743

Issue for consideration

Transaction between the parties whether an absolute sale of the property or a mortgage.

Headnote

Transfer of Property Act, 1882 – s.58(c) – Two documents executed on same day, Sale Deed and Reconveyance Deed/agreement of buy back deed, transaction if mortgage or absolute sale of the property: Held: Proviso to sub-section (c) of s.58 provides that no transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale – In the present case, admittedly, there are two separate documents – Sale Deed was an absolute sale for a total sale consideration of ` 5,000/- required by the vendor to meet domestic expenses and to meet education expenses of his minor son (appellant) and to discharge some debts – Possession of the property was to be delivered on registration of the Sale Deed – The vendee was entitled to get the mutation entered in her name and enjoy the property by paying the taxes, if any – She would become an absolute owner thereof from generation to generation – There were no encumbrances attached to the property – Further, the agreement of buy back mentioned that after registration of the Sale Deed, the vendor had requested the vendee to resell the property within the time given – The vendee granted him five years’ time to repurchase the property in case sale consideration of ` 5000/- was paid – It was agreed that the agreement shall cease immediately after expiry of 5 years – Thus, in terms of the Sale Deed and the Reconveyance Deed, reconsidered in the light of the enunciation of law, the same cannot be held to be a transaction of mortgage of property – Sale of property initially, was absolute – By way of execution of Reconveyance Deed on the same day, the only right given to the appellants was to repurchase the property – No error in the judgment of the High Court upholding the decree of the trial Court by which the suit filed by the appellant for redemption of mortgage was dismissed.

Transfer of Property Act, 1882 – s.58(c) – Scope:

Held: The proviso was added in s.58(c) so as to put at rest the conflicting decisions on the issue – A deeming fiction was added in the negative that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale.

LIST OF CITATIONS AND OTHER REFERENCES

Bishwanath Prasad Singh v. Rajendra Prasad and another (2006) 4 SCC 432: [2006] 2 SCR 566 – relied on.

JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT RAJESH BINDAL, J. 1. The appellant has filed the present appeal before this Court impugning the judgment1 of the High Court of Karnataka at Bangalore by which the Appeal2 filed by the appellant against the judgment and decree of the trial Court was upheld. FACTS 2. The facts, as evident from the record, are that on 16.10.1963 a property measuring 30 ft. x 60 ft. was purchased by the father of the appellant, Gangaramaiah, in the name of the appellant, who was minor at that time. On 24.12.1973 the father of the appellant, Gangaramaiah sold the

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