JUDGMENT - R.M. KANTAWALA, J.:---Defendant No. 1 has filed this appeal against a decree passed by the learned District Judge, Kolhapur, holding that a particular transaction dated January 5, 1955, between the plaintiffs, since deceased, and the defendant No. 1 is a mortgage by conditional sale. Plaintiff filed a suit for redemption of mortgage on the ground that on January 5, 1955, he mortgaged the suit property viz. his 2/5th share in Survey No. 180/1, and Survey No. 44 situate at village Kadalage. His contention is that under this mortgage it was open to the plaintiff to pay Rs. 6,000/- which comparised of Rs. 4,000/- due under a mortgage dated June 14, 1946 and Rs. 2,000/- which were paid on January 5, 1955 and the defendant No. 1 was under an obligation to re-sell the said land to the plaintiff. On November 18, 1970, the present suit was filed by the plaintiff for redemption of this mortgage. As he died during the pendency of the suit, his heirs and legal representatives were brought on record. The suit was dismissed by the trial Court inter alia holding that the transaction dated January 5, 1955, was not in the nature of a mortgage by conditional sale. In an appeal preferred by the heirs of the plaintiff, the learned District Judge held that the transaction was a mortgage by conditional sale and the heirs of the plaintiffs were entitled to a preliminary decree for redemption of the mortgage. It is against this decree passed by the learned District Judge that defendant No. 1 has filed the present appeal. 2. Mr. Joshi on behalf of defendant No. 1 submitted that the learned District Judge was in error in taking the view that the transaction was a mortgage by conditional sale. He submitted that there was already a mortgage effected in the year 1946 and what was dealt with by the transaction of January 5, 1955, was to sell the 2/5th share in the equity of redemption in favour of the mortgage. Such a transaction can never be regarded as a mortgage by conditional sale even though it contained a clause for repurchase of the property on payment of Rs. 6000/-. He urged that when the transaction of the year 1955 was entered into Rs. 2,000/- were paid, while under the earlier mortgage a sum of Rs. 4000/- was already due. Such a transaction can never be regarded as a mortgage by conditional sale even though it contained a clause for repurchase of the property on payment of Rs. 6000/-. He urged that when the transaction of the year 1955 was entered into Rs. 2,000/- were paid, while under the earlier mortgage a sum of Rs. 4000/- was already due. Thus, when the deed provides a convenent to reconvey on payment of Rs. 6000/-, the transaction was nothing but to reconvey the property in the manner provided in the deed. Mr. Mhamane, on the other hand, on behalf of respondent No. 4 defendant No. 2 submitted than the learned District Judge was right in taking the view that the transaction of January 5, 1955, was a mortgage by conditional sale and the heirs of the plaintiffs were entitled to preliminary decree for redemption. 3. If regard be had to the earlier transaction between the parties, it is quite clear that the view that has been taken by the learned District Judge is unsupportable. It is common ground that there was already a registered deed of mortgage executed on June 14, 1946, whereunder the plaintiff and one Bandu borrowed a sum of Rs. 4000/-. Thus when the transaction of January 5, 1955, was entered into, it was nothing else but a sale of 2/5th share of the equity of redemption. By this transaction 2/5th share in the two survey numbers which in reality was merely an equity of redemption was transferred to the mortgage for the sum of Rs. 2000/-. The sale-deed further provided that if the plaintiff repaid the sum of Rs. 6000/- within a period of five years from Shake 1877, then defendant No. 1 will be under an obligation to re-sell the lands to the plaintiff. The document further provides that in case the plaintiff failed to pay the amount within the time prescribed, then the right to re-purchase would be extinguished and the lands will continue to be under the absolute purchase right with defendant No. 1. 4. Question whether such a transaction amounts to a mortgage by conditional sale will only arise if there was no subsisting mortgage. 4. Question whether such a transaction amounts to a mortgage by conditional sale will only arise if there was no subsisting mortgage. In the present case, it is common ground, as indicated in the deed itself, that the properties were already mortgaged by the plaintiff and one Bandu, under a deed of mortgage dated June 14, 1946, to secure a sum of Rs. 4,000/- that was borrowed. Thus, what was subsisting interest was merely his share in the equity of redemption. As the sale-deed shows, he had sold his 2/5th share in the lands. When he conveyed the same under the deed, such a transfer cannot be said to be a mortgage by conditional sale because the only interest that was subsisting with him was a mere share in the equity of redemption. Even otherwise, in January 1955, the amount that has been received by Ramchandra is only Rs. 2000/- while the document provides that the reconveyance is to be effected on payment of Rs. 6000/- within a period of five years from Shake 1877. Thus it is quite evident from the nature of the transaction that by entering into the transaction dated January 5, 1955, what Ramchandra did was he sold away his 2/5th share in the equity of redemption in favour of the mortgagee but reserved his right thereunder to re-purchase the entire two pieces of land on payment of Rs. 6000/- within a period of five years from Shake 1877. Out of caution, the document further provides, that if within the time prescribed the amount was not paid, then the right to repurchase shall be extinguished. Such a transaction can never amount to a mortgage by conditional sale for more than one reason. In January 1955, what was merely vested with Ramchandra was 2/5th share in equity of redemption. He was not the absolute owner even of this share since it was already subjected to mortgage effected in the year 1946. When one of the mortgagors transfers his share in the equity of redemption to the mortgagee, there is no question of mortgage by conditional sale of that share because a mortgage by conditional sale pre-supposes that equity of redemption still subsists with the transferor. Such a concept is impossible when what is transferred is the equity of redemption itself. When one of the mortgagors transfers his share in the equity of redemption to the mortgagee, there is no question of mortgage by conditional sale of that share because a mortgage by conditional sale pre-supposes that equity of redemption still subsists with the transferor. Such a concept is impossible when what is transferred is the equity of redemption itself. Thus, the learned District Judge was in error when he took the view that the transaction dated January 5, 1955, was a mortgage by conditional sale. It was an out right sale with a right to re-purchase the property in case the sum of Rs. 6000/- was paid within five years from Shake 1877. Ramchandra failed to pay the amount within the time stipulated and, therefore, his right to re-purchase the same became extinguished as provided in the deed. It should not be overlooked that the suit out of which the present appeal arises was filed in the year 1970 and at that time there was no subsisting right in Ramchandra which could be enforceable in a Court of law. Since the transaction was not a mortgage by conditional sale, decree for redemption cannot be passed. 5. Accordingly, the appeal is allowed. The decree passed by the learned District Judge is set aside and the decree passed by the trial Court dismissing the suit is confirmed with costs throughout. -----