Judgment : 1) The appeal is filed against the judgment and decree of Regular Civil Suit No.118/1996 and Regular Civil Appeal No.128/2001. The Civil Judge, Junior Division, Kopargaon, District Ahmednagar, dismissed the suit filed by the present appellants for redemption of mortgage and this decision is confirmed by the first Appellate Court. Both the sides are heard. 2) The suit was filed in respect of three properties like House property Gram Panchayat House No.974, Gram Panchayat House No.275 and Gram Panchayat House No. 976. These properties were subsequently given municipal numbers when the Village Panchayat was converted into Nagar Palika and corresponding numbers are given in the plaint. 3) It is the case of the plaintiffs that father of the plaintiff No.1 namely Punamchand was owner of these properties and under a deed of mortgage dated 23-4-1970 he gave the property to defendant No.1, one cooperative society. It is contended that amount of Rs.25,000/- was taken by Punamchand from defendant No.1 for giving the property by way of mortgage and the period fixed was 10 years. Plaintiff No.2 is widow of deceased Punamchand Punamchand died on 31-5-1984. 4) The first two properties are in possession of defendant Nos.2 and 3 on rent basis and so they were made parties to the suit. It is contended that the plaintiff had requested to accept the amount and redeem the property and such notice was given on 6-4-1995. It is contended that defendant No.1 gave false reply and so plaintiffs were constrained to file the suit. 5) Defendant No.1 contested the suit. The society contended that the property was sold to the society though right of repurchase was given to the vendor within 10 years from the date of transaction. It is contended that after expiry of 10 years no rights remained with the plaintiffs to repurchase the property and relief of redemption cannot be given. It is contended that the suit is barred by limitation. It is also contended by the society that more amount of Rs.5000/- was given by way of cheque to Punamchand on 27-11-1976 and this circumstance is admitted by the counsel of the plaintiffs who had given notice to the society. The other defendants also filed written statement and disputed the rights of the plaintiffs. 6) Issues were framed on the basis of the aforesaid pleadings. Both the sides gave evidence. The other defendants also filed written statement and disputed the rights of the plaintiffs. 6) Issues were framed on the basis of the aforesaid pleadings. Both the sides gave evidence. The trial Court held that it was sale transaction but right was given to the vendor to repurchase it within 10 years from the date of transaction. The trial Court held that suit was within limitation. 7) The First Appellate Court has held that it was mortgage by conditional sale. However, the First Appellate Court has refused to give relief by holding that within ten years, the plaintiffs ought to have repurchased the property and as that is not done the suit was not within limitation. 8) While admitting present appeal this Court has formulated following substantial question of law:- “whether the First Appellate Court has committed error in holding that the suit is barred by law of limitation?” 9) Both the sides were allowed to argue on other points like nature of transaction also. 10) When there is dispute over the nature of transaction, the Court is expected to construe the document itself first. The construction of document needs to be made on the basis of the contents of the document itself if there is no ambiguity. Only if there is ambiguity, the surrounding circumstances can be considered by the Court. This is settled law and on that point both sides have cited many reported cases. The title of the document is “HINDI” (conditional sale). This word is used many times in the document. Amount of Rs.15,000/- was given by the society to the predecessor of the plaintiffs prior to execution of the document and that was for redemption of mortgage of the property from third party. The document shows that additional amount of Rs. 10,000/- was shown to be credited in the account of the predecessor of the plaintiffs and thus total amount of Rs. 25,000/- was given. The property was described as ancestral property. Right was given to the society to collect the rent from some tenants as aforesaid amount was taken. Some portion was already in possession of the society as tenant. There is specific mention in the document like “HINDI” (the first party will return the amount of Rs.25000/- within 10 years, at the end of any of these 10 years, and get redeemed the property). Some portion was already in possession of the society as tenant. There is specific mention in the document like “HINDI” (the first party will return the amount of Rs.25000/- within 10 years, at the end of any of these 10 years, and get redeemed the property). The word “HINDI” is used in this area for redemption. If it was not mortgage transaction, there was no need to use such word. This word indicates that amount was taken by way of loan. Further it needs to be kept in mind that no amount was actually handed over before the Sub Registrar and whatever amount was shown to be given on that date was shown to be credited in the account of the party No.1. At the end, a condition is imposed that no loan was to be taken on this property by the society when it was in its possession. The document shows that only after expiry of the period of 10 years the document was to be treated as sale deed and after that party No.2 was entitled to enjoy and dispose of the property as owner. 11) The learned counsel for the appellants placed reliance on the case reported as AIR 1954 SC 345 (Chunchun Jha v. Ebadat Ali) in which interpretation of provision of Section 53(c) of the Transfer of Property Act is done. In this case the Apex Court has laid down that in view of section 8 of the said Act where a document has to be construed, the intention must be gathered, in the first place, from the document itself. It is further observed that if the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. It is observed that, real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. It is made clear that, if there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. It is observed that, real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. It is made clear that, if there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. 12) In the case cited supra the Apex Court has observed that, in view of proviso to section 58(c) of the Transfer of Property Act, if the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But the converse does not hold good, that is to say, the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. It is observed that if the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. At para 8 following observations are made:- “8. . . . . . The legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore, it is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words; and if the conditions of Section 58(a) are fulfilled, then we are of opinion that the deed should be constructed as a mortgage.” 13) Learned counsel for the respondents placed reliance on the cases reported as (1) 2013(4) Bom.C.R. 491 (Vanchalabai Raghunath Ithape v. Shankarrao Baburao Bhilare), (2) 1982 Mh.L.J. 538 (Nana Tukaram Jaikar v. Sonabai Madhav Saindate); and (3) 2006 (1) Mh.L.J. 867 (Vamanrao v. Vithal). In view of the facts of the case, in the first case (supra) the Supreme Court held that it was the sale transaction and not mortgage transaction. In the second case and third case (supra) it is observed by this Court that, it is necessary to show that amount was advanced by way of loan. It is already observed that interpretation needs to be made on the basis of contents of the document itself. In the second case and third case (supra) it is observed by this Court that, it is necessary to show that amount was advanced by way of loan. It is already observed that interpretation needs to be made on the basis of contents of the document itself. 14) The case of the defendant-society that amount of Rs.5000/- was subsequently given in the year 1976 in addition to the amount of Rs.25,000/- cannot help anyway to prove that it was sale transaction. When the document is there, and should be there, oral evidence, in view of Sections 91 and 92 of Evidence Act, cannot be used. In any case, there is no convincing record with the society which needs to be shown to prove that additional amount of Rs.5000/- was given as purchase price. The Courts below have also held that amount of Rs.25,000/- was accepted for giving the property under the said transaction. 15) There is oral evidence of the plaintiff No.1 which is as per the aforesaid pleadings. It is suggested to plaintiff No.1 that he was minor at the relevant time and he had no personal knowledge about the nature of transaction. Here only it needs to be kept in kind that in the document it is mentioned that it was ancestral property of father of plaintiff No.1. The evidence of the plaintiff is of no help to the defendants to prove that it was the sale transaction. One Dnyaneshwar Karle, who was Chairman of the defendant-society from 1965-1972 is examined as a witness and his evidence shows that in the past property was mortgaged with one Bhatkute and by using the amount of Rs.15,000/- the property was got redeemed by Punamchand. The contents of the written statement show that Punamchand was not in need of more money and remaining money was kept in his account. Thus he wanted to get redeemed the property and so there was no reason for him to sell the property. The witness, previous Chairman, has specifically stated that it was not a transaction of out and out sale. It is suggested to him that due to local politics he has given false evidence but he has denied this suggestion. The suggestion shows that he is not in power since 1972. Further, the evidence that he was Chairman of the society till 1972 is not disputed by the defendants. It is suggested to him that due to local politics he has given false evidence but he has denied this suggestion. The suggestion shows that he is not in power since 1972. Further, the evidence that he was Chairman of the society till 1972 is not disputed by the defendants. This important evidence of person, who signed document, which is on intention cannot be ignored. 16) On the other hand, one Dadasaheb is examined for the society. His evidence shows that Dnyaneshwar Karle was the Chairman at the relevant time. He has tried to say that it was sale transaction though right was given to the vendor to repurchase it within ten years. He has stated that at the relevant time price of the property was between rupees 25000/- and 35000/-. His evidence shows that he has no personal knowledge regarding the transaction. His has given evidence that Punamchand had taken loan from society and some amount was due to the Society from Punamchand. In the evidence of Padmakar, Advocate, who had given notice on behalf of the plaintiffs, to the defendant No.1 society, he has admitted that there was mention in the notice of amount of Rs.30,000/- for which the property was given by way of possessory mortgage and it was titled as conditional sale. This evidence cannot help the defendants to prove the nature of transaction of out and out sale. Evidence is given by one Suryabhan Dange to prove that amount of Rs.5000/- was subsequently given by cheque dated 27-11-1976. But only due to this evidence it cannot be inferred that the transaction which was mortgage became sale. 17) Aforesaid evidence creates probability that there was outstanding loan and so no amount was given in hand of Punamchand by society though document was created. It got security. Long period of 10 years of repayment is indicative of mortgage. The right given to collect rent and to continue possession over some portion under the document is indicative of mortgage. In lieu of interest, it can be said that right was given to collect rent and enjoy remaining property. The circumstances also show that a price below true value was mentioned and that again is indicative of mortgage. 18) The aforesaid discussion shows that there are other surrounding circumstances supporting the case of the plaintiffs. In lieu of interest, it can be said that right was given to collect rent and enjoy remaining property. The circumstances also show that a price below true value was mentioned and that again is indicative of mortgage. 18) The aforesaid discussion shows that there are other surrounding circumstances supporting the case of the plaintiffs. Surprisingly the First Appellate Court after appreciating the aforesaid evidence came to the conclusion that it is mortgage but it refused to give the relief by holding that it is not within limitation. There was period of 30 years for redemption as per Article 61 of the Limitation Act and the said provision is not even refereed by the First Appellate Court. This Court holds that the First Appellate Court has committed error in refusing the relief. In the result, the point is answered in favour of the appellants-plaintiffs and the following order is made:- 19) The appeal is allowed with no order as to cost. i) The judgment and decree delivered in Regular Civil Suit No.118/1996 and Regular Civil Appeal No.128/2001 are hereby set aside. The suit is decreed with no order as to costs. Decree of redemption of mortgage is given in the following terms:- (a) The plaintiffs are to deposit an amount of Rs.25000/-in the trial Court within 30 days from the date of this order. If the amount is already deposited there is no need to deposit the amount. (b) If the amount is already deposited, the plaintiffs are entitled to recover mense profits from the date of this decision and it will be ascertained in a separate proceeding. (c) Time of eight (8) weeks is given to the defendants to hand over possession of the mortgage property and deliver the documents, if any, in possession of the defendant-society, and if required transfer the property to the plaintiffs at the cost of the plaintiffs free from all encumbrances if any created by the defendant-society already. This is to be done only if amount is deposited. If the amount is not deposited within the period fixed, the plaintiffs shall be debarred from all rights of redemption of the property and in that case the defendant-society will be entitled to apply for final decree in that regard. (d) Preliminary decree be drawn accordingly.