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Property lawyer: if the payment of interest is not deciphered, then, transaction was held not to be mortgage, but sale with condition to repurchase; SC.

Supreme Court of India

Justice R Banumathi

In the case titled as "Ramji Shankar Shinde and others Versus Rajaram Shripad Joshi through LRs and others", the Supreme Court has held that when the payment of interest is not deciphered from the document then it cannot be transaction for mortgage.

In the said case, the transaction and condition to repurchase were embedded in one document; but as from the document it was not deciphered that the money was given as loan, and payment of interest etc.  It was held that transaction was not of a mortgage but sale with condition to repurchase within 5 years. The orders of first appellate court and High Court were set aside. The order of the trial court was restored.

In the said case it was also observed by the Supreme Court of India that mutation and land revenue were also paid/ done by the purchaser after the transaction in question. It was held that the receipt relied upon by the seller was stated to be forged by the purchaser,  therefore, the burden is upon the propounder of the document, that is, the defendant to prove the same, which it failed to discharge in the present case.



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