MUSHIR MOHAMMED KHAN (DEAD) BY LRS. versus SMT. SAJEDA BANO AND ORS.

MUSHIR MOHAMMED KHAN (DEAD) BY LRS. versus SMT. SAJEDA BANO AND ORS.

The three documents—the sale deed, agreement of reconveyance, and rent note—executed contemporaneously do not constitute a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act, as the condition of repurchase is not contained in the sale deed. Nor do they create a usufructuary mortgage, as an agreement of reconveyance is not part of such a transaction. The High Court erred in characterizing the transaction as a mortgage.

Parties
Appellant: Mushir Mohammed Khan (Dead) by LRs.; Respondents: Smt. Sajeda Bano and Ors.
Jurisdiction
India
Judgment Date
02 March 2000
Procedural Posture
Civil Appeal / Appeal From Judgment and Order Dated 27.8.87 of Madhya Pradesh High Court in Second Appeal No. 107 of 1983
Outcome
Appeal disposed
Legal Topics
Mortgage by Conditional Sale, Usufructuary Mortgage, Transfer of Property Act, Section 58(c) and (d), Nature of Transaction Under Property Transfer
Property Law Mortgage by Conditional Sale Usufructuary Mortgage Transfer of Property Act, Section 58(c) and (d) Nature of Transaction Under Property Transfer

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 10 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Mushir Mohammed Khan (Dead) by LRs.

Appellant

Smt. Sajeda Bano and Ors.

Respondents

Procedural Posture

Civil Appeal / Appeal From Judgment and Order Dated 27.8.87 of Madhya Pradesh High Court in Second Appeal No. 107 of 1983

Legal Issues

  1. 1 Whether the transaction constituted a mortgage by conditional sale or a usufructuary mortgage or an outright sale under the Transfer of Property Act
  2. 2 Whether condition of reconveyance not contained in the sale deed prevents the transaction from being treated as a mortgage by conditional sale

Ratio Decidendi

The three documents—the sale deed, agreement of reconveyance, and rent note—executed contemporaneously do not constitute a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act, as the condition of repurchase is not contained in the sale deed. Nor do they create a usufructuary mortgage, as an agreement of reconveyance is not part of such a transaction. The High Court erred in characterizing the transaction as a mortgage.

Court Disposition

Appeal disposed

Orders

  • If the defendant pays Rs. 2 lakhs (forgoing arrears of rent up-to-date) within three months from the date of judgment, the High Court judgment is set aside and those of the trial and lower appellate court are restored.
  • If the amount is not paid within three months, the appeal stands dismissed with costs.