JUDGMENT : 1. The present appeal has been filed for challenging the decision of the 3rd Joint Civil Judge (Junior Division) in Civil Suit No.361 of 1978 decided on 03.03.1984 as confirmed by the Assistant Judge, Dist.Surat in Regular Civil Appeal No.198 of 1984 dated 13.10.1995. 2. The original plaintiffs have preferred this suit and the facts of the case are that the property bearing Ward No.7, Nondh No.4075 situated in Surat, admeasuring 40 sq.yard is owned by the plaintiffs. The original defendants Nos.1 to 3 and their father Chhotalal Chunilal had paid Rs.2000/- and a document of mortgage was executed by the plaintiffs on 28.05.1955. The document is mortgaged with conditional sale and as per the conditions, the defendant No.3 and his father had to reconvey the property, after the amount is paid to them and for the security of the amount, a part of the ground floor is kept in possession of Chhotalal and the rest of the entire portion was rented to the plaintiffs. Deceased Chhotalal Chunilal died in 1964 and thereafter, the defendants, who are the heirs of deceased Chhotalal, came in possession of this shop. As per the agreement between the parties, deceased Chhotalal had to reconvey the document and handover the portion of the ground floor, which was in his possession, to the plaintiffs at the time of reconveyance of the document. The time for reconveyance is fixed for seven(7) years. Thereafter, a second document is executed on 28.10.1955 for Rs.2500/- and on the same day, an agreement of reconveyance is also executed. Thereafter, after a period of seven(7) years, a new document dated 17.09.1962 was executed and the document was executed in favour of the plaintiffs on the same day, stating that, whenever the plaintiffs pay Rs.2500/-, with 6% interest, the defendants have to reconvey the property in the name of the plaintiffs and a period is fixed at seven(7) years. 2.1 The defendant No.1 had executed a rentnote for the 3/4 part of the ground floor in favour of the plaintiffs, accepting them as the owners of the property and that rentnote is in lieu of the interest. It is the case of the plaintiffs that the transactions between the parties are of a nature of a mortgage. The defendants were served with a notice on 20.03.1978, calling upon the document and to take the amount. It is the case of the plaintiffs that the transactions between the parties are of a nature of a mortgage. The defendants were served with a notice on 20.03.1978, calling upon the document and to take the amount. Defendants had filed the reply of the notice on 31.03.1978 and they had denied the redemption of the property. Hence, the plaintiffs instituted the suit for redemption of the property; in the alternative prayer was also made for a specific performance of the contract entered into between the parties. The possession of the 3/4 portion of the ground floor was also claimed. 2.2 The defendants contested the suit of the plaintiffs’ and submitted that the same is not maintainable in the present form. It was the case of the defendant that the property situated in Surat, Yard No.7, Nondh No.4075, is not owned by the plaintiffs; but, it was owned and occupied by the present defendants. It was categorically stated that the transactions between the parties were not the mortgage transaction but, a sale. If it is a sale with a condition to reconvey, then the condition of reconveyance must be embodied in the document itself. There is no such condition embodied in the document. Therefore, the suit is bad and barred under Section 58(c) of the Transfer of Property Act, 1882. It was further contended that even if it is presumed that the agreement is executed by the defendants in favour of the plaintiffs, then, in that case, a condition was given for a reconveyance, for a period of seven(7) years and if within seven(7) years, the plaintiffs are not able to pay the amount, then they are not entitled to ask for the reconveyance. Thus, it was contended that the suit of the plaintiffs is time barred. The plaintiffs have asked for the accounts; but, there is no such evidence is adduced by the plaintiffs. The defendants have to pay the rent to the plaintiffs, after the recoveyance of the document and till that date, they have not to pay any amount. 2.3 It was further submitted that the agreement to reconvey the document must be a registered one; if the property was conveyed by a sale-deed, it is a registered document; then the agreement to reconvey the document must be a registered one. 2.3 It was further submitted that the agreement to reconvey the document must be a registered one; if the property was conveyed by a sale-deed, it is a registered document; then the agreement to reconvey the document must be a registered one. Looking to the above pleading of the parties, the learned Judge was pleased to frame the issues at Exh.21. After recording the evidence of the both the parties and after hearing the arguments of learned advocate advocates for the parties, the Judge was pleased to dismiss the suit of the plaintiffs. 2.4 Thereafter, the appellant-plaintiffs challenged the aforesaid judgment before the Assistant Judge, Dist.Surat in Regular Civil Appeal No.198 of 1984 dated 13.10.1995 confirming the decision of the trial court. 3. Learned advocate Mr.S.A.Desai appearing for the appellants-original plaintiffs has placed reliance on the judgments of the Apex Court in the case of Smt.Indiara Kaur and Ors. Vs. Shri.Sheo Lal Kapoor, AIR 1988 SC 1074 . He has also placed reliance on the judgment of the Apex Court in the case of Santakumari and Ors. Vs. Lakshmi Amma Janaki Amma by L.Rs and Ors., AIR 2000 SC 3009 . He has submitted that the intention of the parties was to create a mortgage and not a sale as per the document of 17.9.1962, hence the defendants were liable to reconvey the property. 4. The trial court in the Regular Civil Suit No.361 of 1978 framed various issues. The relevant issues Nos.1, 2, 3 and 4 which are answered in negative are reproduced as under: (1) Whether the plaintiff proves that they are the owners of the property bearing nondh No.4075 of ward no.7 at Surat? (2) Whether the plaintiff proves that the property bearing Nondh No.4075 of ward no.7 at Surat was mortgage with conditional sale on 28.5.1955? (3) Whether the plaintiff proves that deceased Chottalal Chunilal agreed to reconvey this suit property on payment of debt? (4) Whether the plaintiff proves that the agreement of sale dated 28.10.1955 was not effective and the agreement of reconveyance was continued? (5) After considering the documentary evidence and depositions of the witnesses the trial court dismissed the suit vide judgment and order dated 31.3.1994. The same was also confirmed in appeal. (4) Whether the plaintiff proves that the agreement of sale dated 28.10.1955 was not effective and the agreement of reconveyance was continued? (5) After considering the documentary evidence and depositions of the witnesses the trial court dismissed the suit vide judgment and order dated 31.3.1994. The same was also confirmed in appeal. (6) While admitting the present second appeal, following substantial question of law was framed: “Whether, on the brief facts of the case are as under: and in the circumstances of the case, the Trial Court as well as the first Appellate Court have substantially erred in law in holding that the transaction in question in reality was not a mortgage but sale and therefore, the suit for redemption of mortgage was not maintainable.” 7. However, there will be an additional question of law which requires to be reframed: “(A) Whether both the Courts below are justified in holding that the suit is time barred by holding that the time was essence of contract? 8. The controversy in the instant case rests on the documents viz. a. Exh.60, dated 14.05.1955, b. Exh.76, dated 28.05.1955, c. Exh.28, dated 28.05.1955, d. Exh.58, dated 28.10.1955, e. Exh.51, dated 17.09.1962. 9. The dispute pertains to property of Ward No.7, Nondh No.4075, admeasuring 40 sq.mtrs. situated at Lal Darwaja Bazaar, Surat City, Taluka Choryasi, Dist. Surat (for short 'the property in question'). Earlier, for the property in question, Sanand was issued in favour of one Nathubhai Fakirbai Ghanchi. After death of Nathubhai Fakirbai Ghanchi, the property in question was inherited by his legal heirs Thakoredas Nathubhai Ghanchi, Hiralal Nathubhai and Parvatiben widow of Nathubhai Fakirbhai Ghanchi. 10. On 11.05.1955, as Thakoredas Nathubhai Ghanchi and two others, had right to dispose of/sell the property in question, an agreement to sell (banakhat) was executed by the vendors-Thakoredas Nathubhai Ghanchi and two others in favour of the vendee-Chhotalal Chunilal Shalvi at a consideration of Rs.2,000/-, out of which, a sum of Rs.500/-, in cash, was paid by the vendee to the vendors towards token amount. 11. On 14.05.1955(Exh.60), a sale-deed of Rs.2,000/- was executed between the purchaser-Chhotalal Chunilal Shalvi and the sellers-Thakoredas Nathubhai Ghanchi and two others and the remaining sale consideration of Rs.1,500/-in cash was also paid to the sellers and accordingly possession of the property in question was handed over to the purchaser. 12. 11. On 14.05.1955(Exh.60), a sale-deed of Rs.2,000/- was executed between the purchaser-Chhotalal Chunilal Shalvi and the sellers-Thakoredas Nathubhai Ghanchi and two others and the remaining sale consideration of Rs.1,500/-in cash was also paid to the sellers and accordingly possession of the property in question was handed over to the purchaser. 12. As mentioned in the sale-deed, part of the property i.e. the shop situated at the ground floor was in possession of the purchaser (Chhotalal Chunilal Shalvi) and the remaining portion (except the ground floor) was given on rent by the purchaser to the sellers-Thakoredas Nathubhai Ghanchi and others. On 28.05.1955(Exh.28), an agreement was executed between the aforesaid Thakoredas Nathubhai Ghanchi and Chhotalal Chunilal Shalvi, wherein it was agreed between the parties that the possession of the ground floor is with Chhotalal Chunilal Shalvi (the owner of the property in question) and the remaining portion is given on rent to Thakoredas Nathubhai Ghanchi and two others, however, if those (three) persons pay Rs.2,000/- (in other documents Exh.51 and Exh.58 it is mentioned as Rs.2,500/-) within a period of seven years to Chhotalal along with interest, names of Thakoredas Nathubhai Ghanchi and others will be entered for the property and the amount of rent paid by them will be adjusted/set off with the sale consideration. After the entire amount is paid by Thakoredas Nathubhai Ghanchi and others, possession of the entire property, including the ground floor, will be handed over to Thakoredas Nathubhai Ghanchi and others. 13. On 28.10.1955(Exh.58), a rentnote (of Rs.12.80) was executed by the owner of the property in question Chhotalal in favour of tenants Thakoredas Nathubhai Ghanchi and two others, wherein it was specifically mentioned that the entire property in question was taken on rent from the owner Chhotalal at a monthly rent of Rs.12.80/- and the said property was sold by the owner to the tenants at Rs.2,500/-. It was mentioned in the rentnote that all the ancillary expenses for the said property were to be borne by the tenants. 14. On 17.09.1962(Exh.51), an agreement was executed between Thakoredas Nathubhai Ganchi and two others and Chhotalal Shalvi, wherein it was mentioned that on 28.10.1955 the property in question was sold in favour of the aforesaid three persons and a registered sale-deed was executed to that effect. 14. On 17.09.1962(Exh.51), an agreement was executed between Thakoredas Nathubhai Ganchi and two others and Chhotalal Shalvi, wherein it was mentioned that on 28.10.1955 the property in question was sold in favour of the aforesaid three persons and a registered sale-deed was executed to that effect. In the said agreement, it was specifically mentioned that as per the understanding arrived at between the parties of the agreement, Thakoredas Nathubhai Ganchi and two others will have to pay Rs.2,500/-for consideration of the property in question within a period of seven years. That Thakoredas Nathubhai Ganchi and two others were the tenants of the entire property at a monthly rent of Rs.12.80/and on payment of the aforesaid sale consideration of Rs.2,500/, their names are to be entered in the record and the aggregate amount of rent is to be adjusted/given set off in the sale consideration. 15. From the perusal of Exh.60 it emerges that the plaintiffs had sold the suit property to Chhotalal Chunilal vide registered sale-deed on 14.05.1955, Exh.60 for sum of Rs.2500/-. The same is also registered before the Sub-Registrar on 28.05.1955. On 28.10.1955, a contract, Exh.76 was entered between the respective parties. It is stated in the same that the property in question is given on rent for Rs.2500/-. 16. It is not in dispute that in the present case the property was already mutated in the name of the defendants and the defendants have asked for the permission for construction of the toilets in the premises and tax is also paid by the defendants. The rent was fixed at Rs.2000/- and the interest is fixed at the rate of 6% and hence, the same would come to Rs. 10.50/- per month. The document executed at Exh.60, which is of the year 1955 is the agreement and it is categorically stated that on 11.05.1955, that they have also executed one agreement of sale in favour of the purchaser and Rs. 500/- is received as an earnest money and the remaining Rs.1500/- was received on that day and hence, Rs.2000/- for the consideration for the sale by such document. Thus, it is clear that they have entered into the agreement of sale, prior to the execution of the document and the plaintiffs have also paid Rs.500/- as the earnest money at the time of execution of agreement of sale on 11.05.1955. Thus, it is clear that they have entered into the agreement of sale, prior to the execution of the document and the plaintiffs have also paid Rs.500/- as the earnest money at the time of execution of agreement of sale on 11.05.1955. Furthermore, it is categorically mentioned that they are entitled to mutate the name in City Survey Office and Municipality Office and for that purpose, if any signature or consent is required, then they are ready to do the same before the authority. Both the Courts below, after examination of all the documentary evidence, have concluded that the property was mutated in the name of defendants and the property card was also produced at Exh.70, which clearly shows that in the year 1959, the property was mutated in the name of Chhotalal Chunilal-original purchaser and the same is also mutated in the name of the plaintiffs. The Courts below have concluded that prior to the permission of constructing the toilets in the year 1959, the property was mutated in the name of the defendants as they were the owners of the property. The plaintiffs have categorically admitted in the deposition that they have executed the sale-deed in favour of Chhotalal Chunilal for Rs.2000/-. The plaintiffs have sublet the premise to one Ishwarlal Chhotalal and it is clearly stated that in the deposition that the first floor and the second floor is in his possession and he is paying rent of Rs.12.50/- per month. In the crossexamination, it is elicited that the agreement of repurchase condition is embodied in the agreement and except that, there is no other condition/order arrived at between the parties in the year 1963-64. They have asked the defendants for reconveyance of the property for the first time in the year 1972-73. The appellate Court below has considered the judgment cited by the learned advocate Mr.S.A.Desai in the case of Smt.Indira Kaur and Ors.(supra) and has observed that the same will not apply since in the instant case the property was mutated in the name of the defendants. After considering the relevant documentary evidence such as agreement, rentnote etc. both the courts below have concluded that the same were handed over to the defendants by the plaintiff in lieu of the purchase of the property. The plaintiff has given consent for mutating the property in the name of the purchaser. After considering the relevant documentary evidence such as agreement, rentnote etc. both the courts below have concluded that the same were handed over to the defendants by the plaintiff in lieu of the purchase of the property. The plaintiff has given consent for mutating the property in the name of the purchaser. Exh.70, the property card clearly shows that in 1959, the property was mutated in the name of Chhotalal Chunilal, the original purchaser. Thereafter, Exh.72 shows that he has sought permission to construct flush and toilet. 17. From the aforesaid documents, it is revealed that the defendants opponents are the owners of the suit property. Exh.60, the sale-deed dated 14.04.1955 reveals that they have entered into agreement to sale on 11.05.1955 and the possession was also handed over to the defendants. Hence, the document at Exh.60 can be said to be an out and out sale in favour of the defendants. 18. Section 58 of the Transfer of Property Act, 1882 provides for different types of mortgages as under: SECTION 58 : "Mortgage", "mortgagor", "mortgagee", "mortgage money", and "mortgage deed" defined “(a) A mortgage is the transfer of an interest is 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 transferor 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. (b) Simple mortgage. Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. (c) Mortgage by conditional sale. (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. (d) Usufructuary mortgage. Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. English mortgage (e) Where the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgage money as agreed, the transaction is called an English mortgage. Mortgage by deposit of title deeds. (f) Where a person in any of the following towns, namely, the towns of Calcutta, Madras and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title deeds. Anomalous mortgage. Anomalous mortgage. (g) A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title deeds within the meaning of this section is called an anomalous mortgage.” 18.1 In the instant case, the aforesaid agreement Exh.28 and Exh.58 cannot be construed as mortgage with conditional sale. The sale-deed dated Exh.60, conveys that the property was sold by the appellants plaintiffs to the defendants. Hence, initially, the appellants-plaintiffs can be said to be owners of the property, but the same is sold to the defendants. The agreement at Exh.51, dated 17.09.1962 evidently spells out that the property was sold in favour of Chhotalal Chunilal on 28.10.1955 and a registered sale-deed was executed in favour of them and the plaintiffs had to pay a some of Rs.2500/- as sale consideration to the defendants within a period of seven years and the plaintiffs were tenants of the entire property and they have to pay the rent as fixed therein. Thus, the plaintiffs had to pray for specific performance of contract, but it is an admitted fact that the plaintiffs-appellants had no sufficient funds to pay the amount as specified in the agreement till 1972-73 i.e beyond the period of seven years as fixed in the agreement. Thus, the conspectus of the aforesaid documents reveal that the transaction was an out and out sale and not a transaction of mortgage. Hence, the suit for redemption of mortgage was not maintainable. The substantial question of law is answered accordingly. 19. It is also borne out from the record that the plaintiffs had no sufficient fund for reconveyance of the property and no documentary evidence is emerging to show that they have asked the defendants for reconveyance of the documents in the year 197273. It is further revealed that for the first time, the defendants have issued the notice in 1978 and before that, no documentary evidence is shown that they have asked for reconveyance of the document. Both the Courts below have arrived at the conclusion, after reading and analyzing all the documentary evidence that the plaintiffs have instituted the suit for reconveyance after seven(7) years since the same were executed in the year 1962. 20. Both the Courts below have arrived at the conclusion, after reading and analyzing all the documentary evidence that the plaintiffs have instituted the suit for reconveyance after seven(7) years since the same were executed in the year 1962. 20. At this stage, it will be apposite to incorporate the observations made by the Apex Court in the case of Suraj Narain Kapoor and ors vs Pradeep Kumar and ors, AIR 2017 SC 5046 : “5. The true nature of the document therefore has to be determined in the facts of each case, dependent on the nature of the recitals in the document, intention of the parties, coupled with other attendant surrounding circumstances. There can be no hard and fast rule for determining the nature of the document, devoid of these circumstances. Precedents, in abundance, will not suffice alone, as observed in Pandit Chunchun Jha vs. Sheikh Ebadat Ali and another, 1955 SCR 174 , as follows: "There are numerous decisions on the point and much industry has been expended in some of the High Courts in collating and analyzing them. We think that it is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each case must be decided on its own facts." 6. In the facts of the instant case, considering that the suit had been decreed by two courts, it was considered prudent to reexamine the deed document in its original vernacular version, rather than to rely upon the meaning assigned to the recitals according to the unofficial translators understanding. 7. A bare reading of the original document reveals that it is styled as a sale-deed. The vendor specifically recites that he had purchased the property for a sum of Rs.1500/-by sale-deed dated 22.6.1948, from its original owners. That he was the exclusive owner of the property, which was not encumbered in any manner and that he had absolute title and authority singularly, to deal with the same to the exclusion of his brothers, from whom he had separated long ago. He was selling the shop for a sum of Rs.4000/-because he had purchased a motor vehicle, which he wanted to run on hire. He was selling the shop for a sum of Rs.4000/-because he had purchased a motor vehicle, which he wanted to run on hire. On receipt of the consideration money he was voluntarily transferring all right, title and interest in the property to the vendee and his legal heirs for all times to come. If the property was found to be encumbered in any manner, the vendee could approach the court, for return of the sale amount, including against the immovable property of the vendor. If the amount was returned within a period of 5 years, either in installments or in lumpsum, the purchaser would execute the sale-deed in his favour. 8. The recitals reveal no reference to any loan taken or mortgage created with regard to any immovable property as security for such loan, much less to discharge any debt. It does not evince the creation of a debtor and creditor relationship. On the contrary, the recitals are specific that the vendor was in need of money to run the vehicle purchased by him on hire, and was selling the shop to raise money for the purpose. The suit for redemption was also filed beyond the period of 5 years. Significantly, the first appellate court observed that the recitals indicated that it was a sale-deed deed, but concluded that it was a mortgage by conditional sale, only because the right to redemption was incorporated in the same document, which was but only one of the factors amongst others, to determine the true nature of the document.” 21. Though, there cannot be any cavil on the proposition of law that the limitation provided under Section 61(a) of the Limitation Act, provides a limitation of 30 years when the right to redeem or to recover possession accrues to the mortgagor. However, as held in the foregoing observations, the suit is not held as suit for redemption, hence the same will not attract the provisions of Section 61(a) of the Limitation Act. Assuming, that the suit is held for redemption of property, then also it can be said to be time barred since the plaintiffs did not pay the amount within seven years as specified in the agreement dated 17.09.1962, Exh.51. In the instance case, time of seven(7) years has lapsed in the year 1969, if the same is counted from the year 1962. In the instance case, time of seven(7) years has lapsed in the year 1969, if the same is counted from the year 1962. The documents executed also portray that upto the year 1972, the original plaintiffs/appellants have not asked for the specific performance of the contract and they have categorically admitted that they have no money and sufficient fund for reconveyance of the document in the year 1972-73. 22. This Court is of the considered opinion that the Appellate Court below has rightly held that the time of seven(7) years was the essence of the contract in the agreement of purchase the property and, therefore, it is rightly held by the Trial Court below that the suit was held to be time barred. The judgment relied upon by the learned advocate Ms.Desai in the case of Santakumari and Ors.(supra) would not apply in the present case since indisputably the suit is time barred as rightly held by both the Courts below that the same is not instituted within a period of seven(7) years as per the document, which was executed in the year 1962 and have also considered that they have no sufficient fund for reconveying the document in year 1972-73. Thus, the question of law at “A” is answered accordingly. 23. Under the circumstances, this Court is of the considered opinion that no case is made out to disturb the concurrent findings of the Court below since it cannot be held that both the Court have committed any error. Substantial question of law is answered accordingly in favour of the defendants. The present appeal stands dismissed. Notice is discharged. It is directed that six(6) months’ time is granted to the appellants to vacate the premise in question if the same is not vacated.