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2007 DIGILAW 2587 (ALL)

ABDUL SAMI QURASHI v. SARDAR KULDEEP SINGH

2007-10-10

DILIP GUPTA

body2007
JUDGMENT Hon’ble Dilip Gupta, J.—The plaintiffs have filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge, Agra by which the Civil Appeal that had been filed by them was dismissed. 2. The plea that had been taken in the Original Suit was the usual plea that has time and again engaged the attention of the Courts. It was alleged that the deed dated 12th July, 1956 (Ext. 2, Paper No. 31-C) was an ostensible sale deed that had been executed by Haji Abdul Sattar in favour of Bhorey Ram Lal only for the purposes of securing the loan of Rs. 30,000/- that he had taken from Bhorey Ram Lal and that Bhorey Ram Lal had also executed a separate agreement dated 12th July, 1956 (Ext. 1, Paper No. l4-C) to reconvey the said property in favour of Haji Abdul Sattar within 20 years on certain terms and conditions; that Haji Abdul Sattar died on 29th October, 1958 leaving behind the plaintiffs and proforma defendants as the legal heirs and representatives who were entitled to get the suit property reconveyed in their favour but after the death of Bhorey Ram Lal, his heirs executed a sale deed in December, 1958 in favour of Sardar Kuldeep Singh and Gurdeep Singh (defendant Nos. 1 and 2); that the plaintiffs and the proforma defendants had been requesting defendant Nos. 1 and 2 to reconvey the property in their favour but that was not done and in fact defendant Nos. 1 and 2 even filed suits for cancellation of the reconveyance deed which were ultimately dismissed and that the plaintiffs and the proforma defendants had always been and were ready and willing to perform their part of the contract but defendant Nos. 1 and 2 were not ready to perform their part of the contract. Ultimately, after serving the registered notice dated 13th October, 1977 upon defendant Nos. 1 and 2, the suit was filed for specific performance of the reconveyance contract executed on dated 12th July, 1956 by Bhorey Ram Lal in favour of Haji Abdul Sattar. 3. In the written statement filed by Kuldeep Singh (defendant No. 2), the plea of ostensible sale to secure the loan was denied and it was stated that Haji Abdul Sattar had sold the property for a consideration of Rs. 3. In the written statement filed by Kuldeep Singh (defendant No. 2), the plea of ostensible sale to secure the loan was denied and it was stated that Haji Abdul Sattar had sold the property for a consideration of Rs. 30,000/- to Bhorey Ram Lal through the registered deed to pay his debts and to meet his other requirements. It was also stated that the subsequent deed executed by Bhorey Ram Lal on 12th July, 1956 for reconveyance of the property on payment of Rs. 30,000/- within a period of 20 years contained a specific clause that Haji Abdul Sattar or his successors in interest shall regularly pay Rs. 120/- per annum to Bhorey Ram Lal or his successors in interest towards the repairs of the property and if there was a default in such payment for a continuous period of five years, then the right to get the property reconveyed would stand extinguished and the agreement would also stand repudiated. It was stated that as the said payment was not made, the reconveyance agreement stood repudiated and even otherwise the plaintiffs and the proforma defendants were never ready and willing to perform their part of the contract as even the notice to execute the sale deed was given by them after the expiry of the period of 20 years stipulated in the reconveyance deed. 4. On the pleadings of the parties, the Trial Court framed following issues : “(1) Whether Haji Abdul Sattar borrowed Rs. 30,000/- from Bhorey Ram Lal and executed the sale deed dated 12.7.1956 in his favour to secure the amount? (2) Whether there was an agreement to reconvey the property? If so what was the amount which was payable under the agreement of reconveyance by Shri Abdul Sattar to Bhorey Ram Lal? (3) Whether the plaintiffs or their predecessor in interest have fulfilled the terms of the agreement of reconveyance? If so, is there any breach? (4) What is the effect of the non-payment of Rs. 120/- per annum by the plaintiffs or their predecessor in interest to Bhorey Ram Lal or the contesting defendants? (5) Whether the condition to pay Rs. 120/- is void? (6) Whether the plaintiffs are liable to pay only Rs. 3000/- as the amount of sale consideration? (7) Whether there is any subsisting agreement between the parties? If so, whether the plaintiffs are entitled to get it specifically enforced? (5) Whether the condition to pay Rs. 120/- is void? (6) Whether the plaintiffs are liable to pay only Rs. 3000/- as the amount of sale consideration? (7) Whether there is any subsisting agreement between the parties? If so, whether the plaintiffs are entitled to get it specifically enforced? (8) Whether the plaintiffs had or have been ready and willing to perform their part of the contract? If not its effect? (9) Whether the plaintiffs are entitled to claim any damages from the contesting defendants? (10) To what relief, if any, are the plaintiffs entitled?” 5. The Trial Court recorded a finding that the sale deed that had been executed by Haji Abdul Sattar in favour of Bhorey Ram Lal for a consideration of Rs. 30,000/- was not for securing the alleged loan; that the reconveyance deed had been executed for Rs. 30,000/- and not Rs. 3000/-; that the term of the agreement of reconveyance under which Abdul Sattar was required to pay Rs. 120/- per annum continuously to Bhorey Ram Lal towards the repairs of the property had not been complied with; that the condition of payment of Rs. 120/- per annum towards repairs was not void and that the plaintiffs had neither been and nor were ready and willing to perform their part of the contract and that the notice dated 13th October, 1977 was given by the plaintiffs for execution of the reconveyance deed after the expiry of 20 years period stipulated in the agreement. The plaintiffs were, therefore, held not entitled to any relief of specific performance of contract and the suit was dismissed. 6. The plaintiffs filed a Civil Appeal. The lower appellate Court framed the following four points for consideration : “(1) Whether the sale deed dated 12th July, 1956 and the reconveyance deed dated 12th July, 1956 constituted mortgage by conditional sale? (2) Whether time was the essence of the contract under the reconveyance deed? (3) Whether Haji Abdul Sattar abdicated the clause in the reconveyance deed that required him to pay Rs. 120/- per annum to Bhorey Ram Lal towards repairs of the property or whether the said clause in the reconveyance deed was penal in nature? (4) Whether the plaintiffs had and were ready and willing to perform their part of the contract under the reconveyance deed?” 7. 120/- per annum to Bhorey Ram Lal towards repairs of the property or whether the said clause in the reconveyance deed was penal in nature? (4) Whether the plaintiffs had and were ready and willing to perform their part of the contract under the reconveyance deed?” 7. The lower appellate Court found that the two deeds dated 12th July, 1956 did not constitute a mortgage by conditional sale; that time was the essence of the contract under the reconveyance deed; that the payment of Rs. 120/- per annum was not penal in nature; that the plaintiffs and the proforma defendants had never been and were not ready and willing to perform their part of the contract. The Civil Appeal was accordingly dismissed. 8. At the time of admission of this Second Appeal the following substantial question of law was framed : “Whether the plaintiff was entitled to a decree or specific performance on the basis of the agreement dated 12th July, 1956 (Paper No. 31-C and 14-C)?” 9. I have heard Sri Swapnil Kumar, learned counsel for the appellants and Sri M.D. Singh Shekhar, learned Senior Counsel assisted by learned counsel Sri M.K. Gupta, for respondent Nos. 1 and 2. 10. Learned Counsel for the appellants submitted that two deeds dated 12th July, 1956 actually constitute a mortgage by conditional sale in view of the decisions of the Supreme Court in Santakumari & Ors. v. Lakshmi Amma Janaki Amma (D) by LRs. & Ors., AIR 2000 SC 3009 ; Ramlal & Anr. v. Phagua & Ors., (2006) 1 SCC 168 and Tulsi & Ors. v. Chandrika Prasad & Ors., 2006 AIR SCW 4905; that the clause contained in the reconveyance deed that the contract shall stand repudiated if Haji Abdul Sattar fails to pay Rs. 120/- per annum to Bhorey Ram Lal continuously for five years was required to be ignored as it was penal in nature in view of the decision of the Supreme Court in K.P. Subbarama Sastri & Ors. v. K.S. Raghavan and another, AIR 1987 SC 1257 ; that the claim set up by defendant Nos. 120/- per annum to Bhorey Ram Lal continuously for five years was required to be ignored as it was penal in nature in view of the decision of the Supreme Court in K.P. Subbarama Sastri & Ors. v. K.S. Raghavan and another, AIR 1987 SC 1257 ; that the claim set up by defendant Nos. 1 and 2 was barred by the principles of res judicata as the First Appeal that had been filed in the High Court by Gurdeep Singh against the judgment and decree dismissing the suit filed for cancellation of the reconveyance deed was dismissed as not pressed; that under the reconveyance deed dated 12th July, 1956 time was not the essence of the contract and that the plaintiffs had throughout been ready and willing to perform their part of the contract and the delay in making good the deficiency in Court fees could not have been made a ground to refuse this relief in view of the decision of the Supreme Court in Surya Narain Upadhyaya v. Ram Roop Pandey & Ors., 1995 Supp (4) SCC 542. 11. Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri M.K. Gupta, learned counsel appearing for respondent Nos. 1 and 2, however, submitted that the sale deed and the agreement to repurchase did not constitute a mortgage by a conditional sale in view of the recitals contained in the deeds and in view of the specific prohibition contained in proviso 58 (c) of the Transfer of Property Act; that the agreement of reconveyance was in the nature of a concession and privilege granted by Bhorey Ram Lal to Haji Abdul Sattar which could be exercised only upon strict fulfilment of the conditions contained therein; that the condition of payment of Rs. 120/- per annum towards repairs was not penal in nature in view of the decision of the Supreme Court in K. Simrathmull v. Nanjalingiah Gowder, AIR 1963 SC 1182 ; that time was the essence of the contract under the reconveyance deed but still notice was given for enforcement of the right to repurchase after the stipulated period of 20 years and even otherwise there was no evidence of continuous readiness and willingness on the part of the plaintiffs or their predecessor-in-interest to repurchase the property from 1956 to the date of institution of the suit. 12. 12. The foremost dispute that arises for consideration in this Second Appeal is about the character of the two deeds dated 12th July, 1956 which are Ext. 2 and Ext. 1. The contention of the learned counsel for the appellants is that actually Haji Abdul Sattar had taken a loan of Rs. 30,000/- from Bhorey Ram Lal and the sale deed had been executed ostensibly for securing the said loan and in view of the reconveyance deed executed on the same date, the two deeds together would constitute a mortgage by conditional sale. It is clear that the plaintiff-appellants wanted that the two deeds together should constitute ‘a mortgage by conditional sale’ and not a ‘sale with a condition of repurchase’ as different considerations would arise in a suit for redemption of mortgage but it must also be immediately pointed out that the suit had been filed for specific performance of contract and not for redemption of the mortgage. The contention of the learned Senior Counsel for the contesting respondents, however, is that two deeds together constitute a sale deed with a condition of repurchase and cannot be said to be mortgage by conditional sale. 13. The question whether a document is a mortgage or an out and out sale has to be determined mainly with reference to the terms of the documents itself. This is what Lord Davey said while giving the judgment of their Lordships of Judicial Committee of the Privy Council in Ram Kishen Das v. Legge, (1899) 22 All 149 and the relevant observation is : “The case must, therefore be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts.” 14. A word of caution was also sounded by the Supreme Court in Tamboli Ramanlal Motilal (D) by LRs. v. Ghanchi Chimanlal Keshavlal (D) by Lrs. & Anr., 1993 Supp (1) SCC 295 : “............... Having regard to the nice distinctions between a mortgage by conditional sale and a sale with an option to repurchase, one should be guided by the terms of the document alone without much help from the case law. Of course, cases could be referred for the purpose of interpreting a particular clause to gather the intention. Having regard to the nice distinctions between a mortgage by conditional sale and a sale with an option to repurchase, one should be guided by the terms of the document alone without much help from the case law. Of course, cases could be referred for the purpose of interpreting a particular clause to gather the intention. Then again, it is also settled law that nomenclature of the document is hardly conclusive and much importance cannot be attached to the nomenclature alone since it is the real intention which requires to be gathered. It is from this angle we propose to analyse the document. No doubt the document is styled as a deed of conditional sale, but as we have just now observed, that it not conclusive of the matter.” (emphasis supplied) 15. It would, therefore, be necessary to reproduce the two deeds to find out the real intention of the parties. 16. The English translation of the sale deed dated 12th July, 1956 (Ext. 2 Paper No. 31-C) as has been supplied by the learned counsel for the parties, is as follows: “I, Abdul Haji Sattar, son of Sheikh Nasruddin, Caste Sheikh Musalman, resident of Ghatia Mamu Bhanja, Agra is owner and in possession of a building described below by virtue of a mutual partition deed : One building with a gate Old No. 1219 and 1219/1-2 and thereafter No. 1379 and 1479/1-2 and new present No. 1580 and 1580/1-2 alongwith two shops. Except me no one is co-sharer or co-owner of the said property and I had taken a loan of Rs. 5000/- by executing a mortgage deed dated 17.6.1941 registered at Book No. 1, Volume 992 Page 346/348 and document No. 1348 dated 2.7.41 and another sum of Rs. Except me no one is co-sharer or co-owner of the said property and I had taken a loan of Rs. 5000/- by executing a mortgage deed dated 17.6.1941 registered at Book No. 1, Volume 992 Page 346/348 and document No. 1348 dated 2.7.41 and another sum of Rs. 20,000/- executing second mortgage deed dated 11.10.47 registered at Book No. 1, Volume 1137 Page 393/394 Document No. 3924 dated 5.11.47 from Bhorey Ram Lal son of Bhorey Baxi Ram by two separate deeds and Bhorey Ram Lal is exerting pressure and threatening to file a suit for realization of the said amount which may cause loss of reputation and expenditure in defending the suit and I have got no other source for liquidating the dues and for the treatment of my father Abdul Jabbar and, therefore, I agree to sell my property for which I am getting good price and there is no chance of getting a better price and, therefore, in all my senses and free will and after consulting my relatives, I transfer for Rs. 30,000/- half of which is Rs. 15,000/- in favour of Bhorey Ram Lal son of Bhorey Baxi Ram Ji Caste Vaish Maheshwari, resident of Maithan, Agra and total sale consideration in cash as per details given below have been received by me and nothing is left to be paid by the purchaser and actual possession has been delivered to him and he has become its absolute owner. I have assured him that the property is free from all encumbrances and a good title is being conveyed to the transferee. In case some one claims the said property or any part of it as his own and the transferee looses title over it, then I and my heirs will be responsible to reimburse the transferee to the extent of expenses and interest at the rate of 12 Anas per month and it could be recovered from me and from my property and I nor my heirs will have any objection to it. Tax up till date has been paid and henceforth the payment of taxes will be liability of the purchaser. After registration of the sale deed I will get the name of the purchaser mutated in the Municipality, failing which he will have a right to get his name mutated. Tax up till date has been paid and henceforth the payment of taxes will be liability of the purchaser. After registration of the sale deed I will get the name of the purchaser mutated in the Municipality, failing which he will have a right to get his name mutated. Whereas Sardar Basant Singh and Vidhi Ram are tenant in the said property and, therefore, the purchaser will have a right to institute a suit for their ejectment and to realise rent. Details of paymenti : Received Rs. 5500/- and Rs. 22,000/- in full and final satisfaction of mortgage dated 7.6.1941 and 11.10.1947. Received Rs. 2500/- in cash at home prior to registration of the sale deed. Thus a total sum of Rs. 30,000/- has been received. Accordingly, this sale deed has been executed acknowledging these facts and may be used when required. Description of property :................” 17. The English translation of the separate reconveyance deed (Ext. 1 Paper No. 14-C) executed on the same date i.e. 12th July, 1956 by Bhorey Ram Lal in favour of Haji Abdul Sattar, as has been supplied by learned counsel for the parties, is as follows : “Whereas Second Party had executed a sale deed dated 12.7.1956 in favour of First Party with regard to a building for a sale consideration of Rs. 30,000/- and Second Party has shown his intentions to re-purchase the said property within a period of 20 years and had made a request in this regard to me the First Party and I the First Party had conceded to the said request of the Second Party on the following conditions : 1. The Second party or his heirs will pay a sum of Rs. 120/- per annum towards repairs of the building to the First Party or his heirs and in that case the First Party will reconvey the property to the Second Party by executing a sale deed on a sale consideration of Rs. 30,000/- + expenses. 2. In case, the Second Party or his heirs continues to pay Rs. 120/- per annum towards repairs of the building and the First Party refuses to get the deed registered on payment of Rs. 3000/- then in that case the Second Party and his heirs will have a right to get a deed of reconveyance executed with regard to the building through the process of Court. 3. 120/- per annum towards repairs of the building and the First Party refuses to get the deed registered on payment of Rs. 3000/- then in that case the Second Party and his heirs will have a right to get a deed of reconveyance executed with regard to the building through the process of Court. 3. In case, the Second Party or his heirs fails to pay Rs. 120/- per annum towards repairs from year to year and such default continues for 5 years, then in that case the Second Party and his heirs will have no right to get the property reconveyed and this agreement will stand repudiated and ineffective and the parties will not be bound by this agreement.” 18. In view of the contentions advanced by learned counsel for the parties, it would also be necessary to find out the meaning of ‘mortgage.’ and ‘mortgage by conditional sale’. 19. A ‘mortgage’ has been defined under Section 58(a) of the Transfer of Property Act as follows : “58(a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt; or the performance of an engagement which may give rise to a pecuniary liability. The transfer is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any), by which the transfer is effected is called a mortgage-deed.” 20. Thus, a mortgage is the transfer of an interest in specific immovable property as security for the repayment of a debt. The characteristic feature of a mortgage is that the right in the property created by transfer is accessory to the right to recover the debt. The debt subsists in a mortgage, while a transaction by which the debt is extinguished is not a mortgage but a sale. A sale with a condition of retransfer is not a mortgage, for the relationship of debtor and creditor does not subsist as there is no debt for which the transfer is a security and that it is not a partial transfer, but a transfer of all rights in the properties reserving only a personal right of repurchase which is lost if not exercised within the stipulated time. 21. 21. A ‘mortgage by conditional sale’ has been defined under Section 58(c) of the Transfer of Property Act as follows : “58. (c) Mortgage by conditional sale.—Where, the mortgagor ostensibly sells the mortgaged property— on condition that on default of payment of the mortgage money 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 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.” 22. It would, thus, be seen that a ‘mortgage by conditional sale’ must be evidenced by one document by which the mortgagor ostensibly sells the mortgaged property on certain conditions. In Pandit Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345 , the Supreme Court clarified that if the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage even if the documents are contemporaneously executed. 23. The Courts have, from time to time, drawn conclusions from the recitals contained in the deeds as to whether they constitute a mortgage by conditional sale or a sale with a condition of repurchase and it would be useful to refer to some of the decisions. 24. Lord Cranthworth, L.C. in Alderson v. White, (1858) 2 DEG & J 97 made the following observations : “What is there to show that it (that is to say the document then under consideration) was intended to be a mere mortgage? I think that the Court, after a lapse of 30 years, ought to require cogent evidence to induce it to hold that an instrument is not what it purports to be, and I see but little evidence to that effect here................ 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. 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 instrument?” (emphasis supplied) 25. This passage was quoted with approval in Bhagwan Sahai v. Bhagwan Din, (1890) 12 All 387 and Jhanda Singh v. Wahiduddin, AIR 1916 PC 49. 26. The facts of Bhagwan Sahai (supra), resemble that of the present case very closely. There the two documents, the deed of sale and the contract for repurchase were both executed on 20th February, 1835. By the first deed Alam Singh purported to sell his entire property to Ganga Din for Rs. 4,000 and by the second it was provided, as a matter of favour, much kindness and indulgence, that if the vendor paid Rs. 4000/- within the period of ten years from the date of the deed, the vendee would accept the same and cancel the sale. It further provided that during the term of ten years the vendee should remain in possession, collect the rent, enjoy the profits and be liable for loss, the vendors having no concern whatever. Sir Barnes Peacock, while delivering judgment, cited and relied upon the judgment of Lord Cranthworth in Alderson v. White and concluded that it was clear that the case was not one of mortgagor and mortgagee, but one of absolute sale with a right to repurchase within a period of ten years. 27. In Jhanda Singh (supra) the question for decision was whether the two instruments dated 29th August, 1852 and 5th September, 1852 together constituted mortgage by conditional sale or an out and out sale of the property with a contract for repurchase. The deed dated 29th August, 1852, set forth that the vendors have sold to the vendees the entire property with all the rights and interest appertaining thereto for a sum of Rs. 5,500, and that the vendees have purchased this property from the vendors in consideration of that amount; that the sale is valid, legal and enforceable; that the vendors have received the consideration for the. 5,500, and that the vendees have purchased this property from the vendors in consideration of that amount; that the sale is valid, legal and enforceable; that the vendors have received the consideration for the. sale and have put the vendees into possession and enjoyment of the property and that they, the vendors, have no longer, as against the vendees, any right, title or claim to the property. The agreement dated 5th September, 1852 provided that if the vendors after the lapse of nine to ten years from the date of the execution of the deed pay to the executants the purchase money mentioned in the sale deed, i.e., the sum of Rs. 5,500, the executants shall forthwith execute a resale deed on receipt of this sum of Rs. 5,500. The Privy Council observed that the deed dated 29th August, 1852 upon its face purports to be an absolute deed of sale and does not disclose any intention whatever to treat the disposal of the property mentioned in it as anything other than an absolute sale for a certain definite sum and, therefore, held that it was a sale with a condition of repurchase. 28. In Tamboli Ramanlal Motilal (supra) the Supreme Court, on almost similar facts, also observed that the transaction was a conditional sale with a condition of repurchase and not a mortgage : “The learned counsel for the respondents would urge that there is nothing to indicate by reading the document that there is any relationship of debtor and creditor. What the executant of the document did was in discharge of the prior debts he sold the property for a sum of Rs. 5,000. The fact that there was a previous relationship of debtor and creditor will have no bearing in constructing the document. …………………………………….. What does the executant do under the document? He takes a sum of Rs. 5,000 in cash. The particulars are (a) Rs. 2,499 i.e. Rs. 899 by mortgage of his house on January 27, 1944 and (b) Rs. 1,600 by a further mortgage on May 31, 1947 totalling to Rs. 2,499. Thereafter, an amount ofRs.2,501 in case was taken from the transferee. The purpose was to repay miscellaneous debts and domestic expenses and business. It has to be carefully noted that this amount of Rs. 5,000 was not taken as a loan at all. 1,600 by a further mortgage on May 31, 1947 totalling to Rs. 2,499. Thereafter, an amount ofRs.2,501 in case was taken from the transferee. The purpose was to repay miscellaneous debts and domestic expenses and business. It has to be carefully noted that this amount of Rs. 5,000 was not taken as a loan at all. As rightly observed by the High Court, by executing this document the executant discharges all the prior debts and outstandings. Where, therefore, for a consideration of a sum of Rs. 5,000 the conditional sale is executed, we are unable to see how the relationship of debtor and creditor can be forged in. In other words, by reading the documents as a whole, we are unable to conclude that there is a debt and the relationship between the parties is that of a debtor and a creditor. This is a vital point to determine the nature of the transaction. The property is sold conditionally for a period of five years and possession is handed over. At the same time, the document proceeds to state “Therefore, you and your heirs and legal representatives are hereafter entitled to use, enjoy and lease the said houses under the ownership right.” ……………………………….. The further clause in the document is to the effect that the executant shall repay the amount within a period of five years and in case he fails to repay neither he nor his heirs or legal representatives will have any right to take back the said properties. Here only the right of the transferor is emphasised, while the right of the transferee to foreclose the mortgage is not spoken to. That would be so, if the document were to be a mortgage by conditional sale. Only in such a case the first condition spoken to under Section 58(c) will come into play................. The last important clause is after the period of five years the transferee will have a right to get the municipal record mutated in his name and pay tax. Thereafter, the transferee will have an absolute right to mortgage, sell, or gift the suit property. Neither executant nor any one else could dispute the title. All the above clauses are clearly consistent with the express intention of making the transaction a conditional sale with an option to repurchase. ..............” (emphasis supplied) 29. Thereafter, the transferee will have an absolute right to mortgage, sell, or gift the suit property. Neither executant nor any one else could dispute the title. All the above clauses are clearly consistent with the express intention of making the transaction a conditional sale with an option to repurchase. ..............” (emphasis supplied) 29. In Bishwanath Prasad Singh v. Rajendra Prasad and another, (2006) 4 SCC 432, the Supreme Court after noticing that the sale deed had been executed by the transferors as they had incurred debts, concluded that the transfer was complete. It was observed : “A deed as is well known must be construed having regard to the language used therein. We have noticed hereinbefore that by reason of the said deed of sale, the right, title and interest of the respondents herein was conveyed absolutely in favour of the appellant. The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondents which was entered into by and between the parties. In fact, the recitals made in the sale deed categorically show that the respondents expressed their intention to convey the property to the appellant herein as they had incurred debts by taking loans from various other creditors. ……………………….. In the instant case, as noticed hereinbefore, the transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property. Not only that, the appellant was put in possession of the land, his name was also mutated.” (emphasis supplied) 30. In Umabai and another v. Nilkanth Dhondiba Chavan (Dead) by LRs. and another, (2005) 6 SCC 243 , the Supreme Court pointed out the distinction between mortgage by conditional sale and sale with a condition of repurchase : “In this case, admittedly, two documents were executed on the same day. In view of the express provisions contained in Section 58(c) of the Transfer of Property Act, indisputably the transaction in question was not a mortgage by way of conditional sale. There exists a distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with a condition of repurchase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with a condition of repurchase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon. Proviso appended to Section 58(c), however, states that if the condition for retransfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. (See Pandit Chunchun Jha v. Sk. Ebadat Ali, AIR 1954 SC 345 ; Bhaskar Waman Joshi v. Narayan Rambilas Agarwal, AIR 1960 SC 301 ; K. Simrathmull v. S. Nanjalingiah Gowder, AIR 1963 SC 1182 ; Mushir Mohammed Khan, (2000) 3 SCC 536 and Tamboli Ramanlal Motilal, 1993 Supp (1) SCC 295.” 31. The decisions referred to above, clearly emphasise that the terms of the documents determine whether the transaction is a ‘mortgage’ or an out and out sale. A document that prima facie shows that it is an absolute conveyance 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. A previous relationship of debtor and creditor has no bearing in the construction of the document. The transaction will not be of a loan if by execution of the document, the prior debts are discharged. A deed which conveys absolutely the right, title and interest of the transferor is an out and out sale and if by execution of another document, the transferee expresses an intention to reconvey the property to the transferor, then it would be a sale with a condition of repurchase. 32. It is in the light of the aforesaid principles that the two deeds have to be examined. To constitute a mortgage it has first to be determined whether the deed dated 12th July, 1956 (Ext. 2) was an ostensible deed to secure the loan because only in such circumstances it can be said to be a mortgage deed. For this purpose, the recitals contained in the deed dated 12th July, 1956 (Ext. To constitute a mortgage it has first to be determined whether the deed dated 12th July, 1956 (Ext. 2) was an ostensible deed to secure the loan because only in such circumstances it can be said to be a mortgage deed. For this purpose, the recitals contained in the deed dated 12th July, 1956 (Ext. 2) have to be looked into and the following facts emerge from this deed : (1) Haji Abdul Sattar was the sole owner of the disputed property. (2) Haji Abdul Sattar had taken two separate loans of Rs. 5000/- and Rs. 20,000/- from Bhorey Ram Lal for which he had executed two simple mortgage deeds dated 17th June, 1941 and 11th October, 1947 respectively. (3) Bhorey Ram Lal was exerting pressure upon Haji Abdul Sattar to repay the loan and had even threatened to file a suit for realisation of the aforesaid loan amount. (4) Haji Abdul Sattar executed the sale deed dated 12th July, 1956 in favour of Bhorey Ram Lal for a consideration of Rs. 30,000/- as he required money for liquidating the aforesaid debts and for the treatment of his father. (5) The entire sale consideration of Rs. 30,000/- had been received in the following manner and nothing was left to be paid : (a) Rs. 5500/- and Rs. 22,000/- in full and final satisfaction of the mortgage dated 17th June, 1941 and 11th October, 1947. (b) Rs. 2500/- in cash at home. (6) The actual possession of the property sold was delivered to Bhorey Ram Lal who became the absolute owner of the property free from all encumbrances. (7) After the registration of the sale deed Haji Abdul Sattar was to get the name of Bhorey Ram Lal mutated in the Municipal records failing which Bhorey Ram Lal would have the right to get his name mutated. (8) Bhorey Ram Lal was given the right to receive the rent from the tenants Vidhi Ram and Sardar Basant Singh and he was also given the right to institute a suit for ejectment and realisation of rent. (9) Good title was conveyed to Bhorey Ram Lal and in case any person claimed title over the said property and the transferee lost the title then Haji Abdul Sattar and his heirs would be responsible to reimburse the transferee to the extent of the expenses and interest at the rate of Rs. (9) Good title was conveyed to Bhorey Ram Lal and in case any person claimed title over the said property and the transferee lost the title then Haji Abdul Sattar and his heirs would be responsible to reimburse the transferee to the extent of the expenses and interest at the rate of Rs. 12 anas per month. 33. The terms stipulated in the aforesaid deed dated 12th July, 1956 (Ext. 2) leave no manner of doubt that the nature of the transaction was a sale out and out. Haji Abdul Sattar had not taken Rs. 30,000/- by way of loan from Bhorey Ram Lal and in fact by executing the document, he discharged all the prior debts and outstandings to the extent of Rs. 27,500/- and received the balance amount of Rs. 2500/- by cash. Thus, in view of the decision of the Supreme Court in Tamboli Ramanlal Motilal (supra), it cannot be said that the relationship of debtor and creditor existed. A perusal of the sale deed also indicates that possession of the property was delivered to Bhorey Ram Lal who became the absolute owner of the property free from all encumbrances. The sale deed further provided that good title was being conveyed to Bhorey Ram Lal and in case any person claimed better title over the property and Bhorey Ram Lal lost title, then Haji Abdul Sattar and his heirs would be responsible for reimbursing the transferee. After the registration of the sale deed Haji Abdul Sattar was also obliged to get the name of Bhorey Ram Lal mutated in the Municipal records. It is, therefore, clear that the right, title and interest of Haji Abdul Sattar was conveyed absolutely in favour of Bhorey Ram Lal as was observed by the Supreme Court in Bishwanath Prasad Singh (supra). What has further to be noticed is that the suit was filed after more than 23 years from the execution of the deed on 12th July, 1956. In such circumstances, as pointed out in Andersan v. White (supra), there has to be cogent reason before the Court to induce it to hold that even where the document prima facie shows that it conveys the property absolutely, yet there is a relationship of debtor and creditor. In such circumstances, as pointed out in Andersan v. White (supra), there has to be cogent reason before the Court to induce it to hold that even where the document prima facie shows that it conveys the property absolutely, yet there is a relationship of debtor and creditor. A perusal of the subsequent deed dated 12th July, 1956 (Ext.-1) further shows that Haji Abdul Sattar could repurchase the property within 20 years on certain terms and conditions. This deed together with the sale deed (Ext. -2) would constitute a sale deed with a condition to repurchase as pointed out by the Supreme Court in Tamboli Ramanlal Motilal (supra) and Uma Bai (supra). 34. The decisions relied upon by the learned counsel for the appellants do not help the appellants. In Santakumari (supra), the Transfer of Property Act was not applicable to the State of Travancore and, therefore, Section 58(c) of the Act was not applicable. In Ramlal (supra) the Supreme Court found that the deed had been executed for securing the loan as the document did not pass any right, title or interest. In Tulsi (supra) the Supreme Court found that it was a mortgage by conditional sale as the transaction had been evidenced by one document. 35. The inevitable conclusion that follows is that the two transactions dated 12th July, 1956 (Ext. 1 and Ext. 2) constitute a sale with a condition of repurchase. 36. In view of the aforesaid finding, the transaction under the deeds dated 12th July, 1956 (Ext. 1 and 2) cannot constitute a ‘mortgage by conditional sale’. However, even otherwise, as pointed out by the Supreme Court in Umabai (supra), the transaction would also not be a ‘mortgage by conditional sale’ as the condition of retransfer was not embodied in the same document. 37. The next question that arises for consideration is whether the condition imposed in the reconveyance deed that Haji Abdul Sattar shall pay Rs. 120 per annum to Bhorey Ram Lal year to year and in the event this was not paid continuously for five years, the deed would stand repudiated, was penal in nature and what would be the effect of breach of the said condition. 38. 120 per annum to Bhorey Ram Lal year to year and in the event this was not paid continuously for five years, the deed would stand repudiated, was penal in nature and what would be the effect of breach of the said condition. 38. To appreciate this issue it needs to be mentioned that the Courts have repeatedly emphasised that an agreement for reconveyance of the property is in the nature of a concession or a privilege and it can be exercised only upon strict fulfilment of the conditions contained in the contract. 39. In V. Pechimuthu v. Gowrammal, (2001) 7 SCC 617 , the Supreme Court observed : “..................An option to purchase or repurchase has been held to be such a privilege or concession. .......................This is because an option by its very nature is dependent entirely on the volition of the person granted the option. He may or may not exercise it. Its exercise cannot be compelled by the person granting the option. It is because of this one-sidedness or “unilaterality”, as it were, that the right is strictly construed............. An agreement for sale and purchase simpliciter, on the other hand, is a reciprocal arrangement imposing obligations and benefits on both parties and is enforceable at the instance of either. The interpretation of such a contract would be governed by the laws of contract relating to the performance of reciprocal promises. Whether an agreement is an option to purchase or an “ordinary” agreement would depend on the interpretation of its provisions. Sometimes the option is expressly and in terms granted. In others, the right may be implicit. Thus when an agreement provides that the right to obtain a sale is subject to the fulfilment of certain conditions by the purchaser, the agreement would in effect be an option to purchase, as the right to purchase would only accrue upon the voluntary performance of the conditions specified by the owner. The vendor cannot compel the performance of the conditions by the purchaser and then ask for the contract to be specifically performed.” 40. The vendor cannot compel the performance of the conditions by the purchaser and then ask for the contract to be specifically performed.” 40. In K. Simrathmull (supra) the Supreme Court observed : “Where under an agreement an option to a vendor is reserved for repurchasing the property sold by him the option is in the nature of a concession or privilege and may be exercised on strict fulfilment of the conditions on the fulfilment of which it is made exercisable.” 41. The first contention of the learned counsel for the appellants that the aforesaid condition in the reconveyance deed for payment of Rs. 120 per month is penal in nature and has to be ignored, cannot be accepted in view of the decision of the Supreme Court in K. Simrathmull (supra). In the said case, there was a similar condition in the reconveyance deed. The exercise of the right of reconveyance was subject to two conditions namely that the right must be exercised within two years and that rent should not be in arrears for more than six months at any time. The Supreme Court pointed out that the option to a vendor for repurchase the property sold by him is in the nature of a concession or a privilege and can be exercised only on strict fulfilment of the conditions and concluded that the term contained in the contract that failure to abide by the conditions would result in repudiation of the contract does not amount to enforcement of a penalty. The relevant observations of the Supreme Court are quoted below : “The plaintiff had sold his property to the defendant. There is now no dispute that though the sale deed was for Rs. 700/-, it was in satisfaction of the loan borrowed on 18.2.1948 for Rs. 1500/- that the sale deed was executed. By the deed Ex. A-1 the defendant gave to the plaintiff a concession: he agreed to reconvey the house, but the exercise of the right of demanding reconveyance by the plaintiff was subject to two conditions (1) that the right must be exercised within two years, and (2) that the rent payable under Ex. B-1 should not be in arrears for more than six months at any time. When the plaintiff demanded specific performance of the agreement of reconveyance, the first condition was fulfilled but the second was not. B-1 should not be in arrears for more than six months at any time. When the plaintiff demanded specific performance of the agreement of reconveyance, the first condition was fulfilled but the second was not. It is true that equity relieves against penalties when the intention of the penalty is to secure payment of a sum of money or attainment of some other object, and when the event upon which the penalty is made payable can be adequately compensated by payment of interest or otherwise. Thus relief is granted in equity against the penalty in a money bond, and also against penal sums made payable on breach of bonds, covenants and agreements for payment of money by instalments, or for doing or omitting to do a particular act. ............ But there is a well recognised exception to this rule which is enunciated in Halsbury’s Laws of England Vol. 14, 3rd Edn., p. 622, para 1151, as follows: “Where under a contract, conveyance, or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner, or at a stated time, the act must be performed accordingly in order to obtain the enjoyment of the right, and in the absence of fraud, accident or surprise, equity will not relieve against a breach of the terms. “The Federal Court in Shaumugam Pillai v. Annalakhshmi Ammal, AIR 1950 FC 38 held by a majority of three to two that where under an agreement an option to a vendor is reversed for repurchasing the property sold by him the option is in the nature of a concession or privilege and may be exercised on strict fulfilment of the conditions on the fulfilment of which it is made exercisable. If the original vendor fails to act punctually according to the terms of the contract, the right to repurchase will be lost and cannot be specifically enforced. Refusal to enforce the terms specifically for failure to abide by the conditions does not amount to enforcement of a penalty and the Court has no power to afford relief against the forfeiture arising as a result of breach of such a condition. A majority of the Judges of the Court in that case followed the principle set out in Davis v. Thorns, (1930) 39 ER 38. We accept the view of the majority enunciated in Shanmugam Pillai case. A majority of the Judges of the Court in that case followed the principle set out in Davis v. Thorns, (1930) 39 ER 38. We accept the view of the majority enunciated in Shanmugam Pillai case. The decree passed by the High Court must therefore be set aside and the decree passed by the trial Court restored.” (emphasis supplied) 42. Learned counsel for the appellants has placed reliance upon the decision of the Supreme Court in K.P. Subbarama Sastri (supra) in support of his contention that such a condition was penal in nature and should be ignored. The said decision does not help the appellants. In fact the said decision approved the decision of the Full Bench of the Kerala High Court in the case of P.K. Achuthan & Anr. v. State Bank of Travancore, Calicut, AIR 1975 Ker. 47 wherein it was observed : “...........If on a proper construction of a contract it is found that the real agreement between the parties was to the effect that the whole amount was on the date of the bond a debt due but the creditor for the convenience of the debtor allowed it to be paid by instalments intimating that if default should be made in the payment of any instalment he would withdraw the concession, then the stipulation as to the whole amount of the balance becoming payable would not be penal; if, on the other hand, on a proper consideration of the terms of the contract the Court comes to conclusion that the debt itself arises or becomes due and payable by the debtor only on the respective dates fixed for the instalments the stipulation that on default being made in the payment of any instalment the whole of the balance should become due and payable would be in the nature of a penalty.” 43. In the present case, as observed by the Supreme Court, the option to a vendor to repurchase the property sold by him is in the nature of a concession or a privilege and, therefore, in view of the aforesaid Full Bench decision of the Kerala High Court in P.K. Achuthan (supra), it cannot be said that the condition contained in the reconveyance deed requiring Haji Abdul Sattar to pay Rs. 120 per annum to Bhorey Ram Lal year to year and in the event this was not paid continuously for five years the deed would stand repudiated, is penal in nature. 44. The effect of non compliance of the conditions laid down in the reconveyance deed has now to be examined. 45. A perusal of the reconveyance deed dated 12th July, 1956 (Ext. 1) shows that Haji Abdul Sattar had executed the sale deed dated 12th July, 1956 (Ext. 2) in favour of Bhorey Ram Lal and Haji Abdul Sattar had shown an intention of re-purchasing the said property within 20 years and made a request to Bhorey Ram Lal who had conceded to the request on the following conditions: 1. That Haji Abdul Sattar or his heirs will pay a sum of Rs. 120 per annum towards repairs of the building to Bhorey Ram Lal or his heirs and in that case Bhorey Ram Lal will reconvey the property to Haji Abdul Sattar by executing a sale deed on a consideration of Rs. 30,000. 2. That in case Haji Abdul Sattar or his heirs continued to pay the aforesaid amount and Bhorey Ram Lal refuses to get the deed registered on payment of Rs. 3000/-, then in that case Haji Abdul Sattar or his heirs will have a right to get the deed of reconveyance executed through Court. 3. That in case Haji Abdul Sattar or his heirs failed to pay Rs. 120 per annum towards repairs year to year and such default continued for five years, then in that case Haji Abdul Sattar and his heirs will be divested of their right to get the property reconveyed and the agreement will stand repudiated and the parties will not be bound to the agreement. 46. It is not in dispute that Haji Abdul Sattar or his heirs did not pay Rs. 120 per annum to Bhore Ram Lal or his heirs year to year for a continuous period of five years. In view of the decisions of the Supreme Court referred to above, the option to repurchase the property can be exercised by the vendor only on strict fulfilment of the conditions stipulated in the reconveyance deed. The conditions were not satisfied. This apart, Clause (3) of the reconveyance deed specifically provided that failure to pay Rs. In view of the decisions of the Supreme Court referred to above, the option to repurchase the property can be exercised by the vendor only on strict fulfilment of the conditions stipulated in the reconveyance deed. The conditions were not satisfied. This apart, Clause (3) of the reconveyance deed specifically provided that failure to pay Rs. 120 per annum year to year continuously for five years would result in repudiation of the deed and Haji Abdul Sattar and his heirs would be divested of the right to get the property reconveyed. 47. In Shanmugam Pillai v. Annalakshmi, AIR 1950 FC 30, it was not in dispute that not only the purchaser had failed to pay the instalments under the lease but had also allowed the time to lapse. The terms of the agreement provided that the vendor would resell the land to the owner subject to certain conditions including the condition that the owner should pay the instalments under the lease punctually failing which the agreement for reconveyance would cancel. It is in this context that the Court observed: “It is well settled that, when a person stipulates for a right in the nature of a concession or privilege on fulfilment of certain conditions, with a proviso that in case of default the stipulation should be void, the right cannot be enforced if the conditions are not fulfilled according to the terms of the contract." 48. In Bismillah Begum (Smt.) Dead by LRs. v. Rahmatullah Khan (Dead) by L.Rs., (1998) 2 SCC 226 the Supreme Court observed : “In view of the above said decision of this Court relating to contract of reconveyance, and inasmuch as the amount was not paid within the stipulated time, the said option in favour of the plaintiff must be deemed to have “lapsed”.” 49. In this view of the matter it has to be held that the reconveyance deed stood repudiated as the condition of payment of Rs. 120/- per annum year to year was not satisfied for a continuous period of 5 years. 50. In view of the aforesaid finding, it is not necessary to examine the plea about readiness and willingness on the part of the plaintiffs but as the learned counsel for the parties have addressed the Court on this issue, it is appropriate that this be also considered. 51. 50. In view of the aforesaid finding, it is not necessary to examine the plea about readiness and willingness on the part of the plaintiffs but as the learned counsel for the parties have addressed the Court on this issue, it is appropriate that this be also considered. 51. Section 16(c) of the Specific Relief Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. 52. In N.P. Thirugnanam (D) by LRs. v. Dr. R. Jagan Mohan Rao & Ors., AIR 1996 SC116 the Supreme Court observed : “………..If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances, whether the plaintiff was ready and was always ready and willing to perform his part of contract.” 53. In Jugraj Singh & Anr. v. Labh Singh & Ors., AIR 1995 SC 945 , the Supreme Court observed : “Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. In Jugraj Singh & Anr. v. Labh Singh & Ors., AIR 1995 SC 945 , the Supreme Court observed : “Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff’s part of the contract.” 54. The Supreme Court in Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa & Ors., AIR 2003 SC 1391 also observed that the plaintiff in a suit for specific performance of contract must not only raise a plea that he had all along been and even on the date of filing the suit was ready and willing to perform his part of contract but must also prove the same. 55. In Umabai (supra), the Supreme Court observed : “It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records. ………………………. It was for the plaintiff to prove his readiness and willingness to pay the stipulated amount and it was not for the appellants to raise such question.................” 56. In matters relating to reconveyance deeds, the Courts have pointed out that time is the essence of contract. In this connection reference may be made to the decision of the Supreme Court in Bishwanath Prasad Singh (supra) wherein it was observed : “Therefore, it is clear that what was involved in this case was the sale followed by a contemporaneous agreement for reconveyance of the property. In this connection reference may be made to the decision of the Supreme Court in Bishwanath Prasad Singh (supra) wherein it was observed : “Therefore, it is clear that what was involved in this case was the sale followed by a contemporaneous agreement for reconveyance of the property. Such an agreement to reconvey is an option contract and the right has to be exercised within the period of limitation provided therefor. It has also been held that in such an agreement for reconveyance, time is of the essence of the contract. The plaintiffs not having sued within time for reconveyance, it would not be open to them to seek a declaration that the transaction of sale entered into by them construed in the light of the separate agreement for reconveyance executed by the purchaser, should be declared to be a mortgage..........” (emphasis supplied) 57. In Bismillah Begum (supra) the Supreme Court also observed : “................Therefore, in regard to contracts of reconveyance relating to immovable property the principle laid down in A.H. Mama v. Flora Sassoon— that time is not normally the essence of the contract in contracts relating to immovable property—does not apply. It is in fact, so observed in Caltex (India) Ltd. case." 58. Under the reconveyance deed dated 12th July, 1956 (Ext. 1), as pointed out above, Haji Abdul Sattar could repurchase the property within a period of 20 years. In the present case, for the first time on 13th October, 1977 notice was given by the plaintiffs for enforcing the agreement of reconveyance. This notice was, therefore, given after the expiry of the period of 20 years stipulated in the reconveyance deed dated 12th July, 1956. The suit was filed for specific performance on 9th July, 1979 with deficient Court fees which was made good only on 12th February, 1980 and the suit was then registered as Original Suit No. 48 of 1980. The Courts below have recorded a concurrent finding of fact that there was no evidence on the record to show continuous readiness and willingness on the part of the plaintiffs to repurchase the property from 1956 to the institution of the suit. The Courts below have recorded a concurrent finding of fact that there was no evidence on the record to show continuous readiness and willingness on the part of the plaintiffs to repurchase the property from 1956 to the institution of the suit. In coming to this conclusion it has been noticed that the notice was given by the plaintiffs after the expiry of 20 years and the suit was also filed on 9th July, 1979 just three days prior to the expiry of the period of limitation. There was no evidence to show that the plaintiffs ever offered the sale consideration and showed willingness to repurchase the property within 20 years. As seen above, the contract of reconveyance is in the nature of a concession and a privilege and it can be enforced within the period prescribed—in the deed and that time is always the essence of the contract. 59. It is true, as contended by the learned counsel for the appellants that mere delay in making good the deficiency in Court fees will not lead to the conclusion that the plaintiffs were not willing to perform their part of the contract as has been held by the Supreme Court in Surya Narain Upadhyay (supra) but as would be seen from the judgment, this was not the sole ground for holding that the plaintiffs were not ready and willing to perform their part of the contract. 60. The inevitable conclusion that follows is that the plaintiffs and the proforma defendants were never ready and willing to perform their part of the contract. The finding recorded by both the Courts below to this effect does not suffer from any infirmity. 61. The last contention of the learned counsel for the appellants is that the contesting defendants were barred from raising the aforesaid pleas in defence as the First Appeal filed by them in the High Court had been dismissed as withdrawn without giving any liberty to them to file a fresh suit. In this connection it may be pointed out that earlier Original Suit No. 69 of 1964 had been filed by Sardar Kuldeep Singh and Gurdeep Singh (defendant Nos. 1 and 2 in this Second Appeal), for cancellation of the reconveyance deed dated 12th July, 1956. In this connection it may be pointed out that earlier Original Suit No. 69 of 1964 had been filed by Sardar Kuldeep Singh and Gurdeep Singh (defendant Nos. 1 and 2 in this Second Appeal), for cancellation of the reconveyance deed dated 12th July, 1956. This suit was dismissed on 2nd June, 1965 under Order VII Rule 11(c) of the Code of Civil Procedure as the Court fee was not deposited. Subsequently, the said defendants filed Original Suit No. 74 of 1968 which was dismissed as barred under Order IX Rule 9 of the Code of Civil Procedure. First Appeal No. 204 of 1975 was filed by Gurdeep Singh against the said judgment and decree but it was dismissed on 27th July, 1976 as withdrawn. It is for the said reason that the learned counsel for the appellants contended that the said defendants should be barred from raising any claim on the general principles of res judicata. 62. This contention of the learned counsel for the appellants cannot be accepted as dismissal of the First Appeal could not preclude the defendants from taking defence in the subsequent Original Suit filed by the present plaintiffs. This is what was observed by the Supreme Court in Kandapazha Nadar & Ors. v. Chitraganiammal & Ors., 2007 AIR SCW 2313 : “The High Court observed that in terms of Order XXIII, Rule 1(4)(b) when a party to the suit withdraws the suit without permission to institute fresh suit, the parties shall be precluded from instituting the fresh suit in respect of such subject matter or such part of the claim. The High Court observed that the earlier suit was dismissed as the defendant had withdrawn the earlier suit at the second appellate stage without securing necessary permission to institute afresh suit. The High Court therefore, held that the general principles of res judicata get attracted and the defendant’s claim is barred in view of the orders passed in the earlier suit between the same parties. It is to be noted that the first appellate Court had observed that the withdrawal debarred the plaintiffs from filing a subsequent suit but it did not affect the defence of the defendants. …………………. The question before us is: what is the effect of order passed by the High Court in Second Appeal No. 8 of 1977 filed by Thangaraj Nadar, in the first round of litigation. …………………. The question before us is: what is the effect of order passed by the High Court in Second Appeal No. 8 of 1977 filed by Thangaraj Nadar, in the first round of litigation. That order is dated 27.7.1978. Under that order, the Madras High Court granted leave to withdraw the suit filed by the petitioners herein bearing Suit No. 298 of 1973, making it clear that the petitioners herein (plaintiffs in earlier suit) were not given liberty to file a fresh suit. Does it mean that petitioners-defendants were estopped from raising the defence regarding validity of the conveyance in their favour by Chelliah Nadar dated 8.10.1971. …………………….. In view of the above judgments, the position in law is clear that when the Court allows the suit to be withdrawn without liberty to file afresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the petitioners herein from taking the defence in the second round of litigation as held in the impugned judgment. The above judgments indicate that if the plaintiff withdraws the suit, the order of the Court allowing such withdrawal does not constitute a decree under Section 2(2) of the Code. That in any event, it will not preclude the petitioners herein (defendants in second round) from raising the plea that the sale deed executed by Chelliah Nadar on 26.2.1973 in favour of Thangaraj Nadar was not true and valid. Thus, the civil appeal needs to be allowed." 63. There is, therefore, no merit in any of the contention advanced by learned counsel for the appellants. The Second Appeal is, accordingly, dismissed with costs. ———