JUDGMENT : Rajeev Kumar Shrivastava, J. 1. This second appeal has been filed under Section 100 of CPC against the impugned judgment and decree dated 03.08.2001 passed by Ninth Additional District Judge, Gwalior in Civil Appeal No. 77A/1999, which was filed challenging the judgment and decree dated 12.10.1999 passed by Eleventh Civil Judge Class-2, Gwalior in Civil Suit No. 180A/1994. 2. The facts of the case in brief are that the deceased Keshavrao Jadhav (whose legal representatives are the present appellants) filed a suit for redemption of the suit property against the defendants-respondents alleging that the suit house No. 5/270, new number is 29/275 situated at Sheikh Ki Bagiya, Nai Sadak, Lashkar, Gwalior, was purchased by the plaintiff from Ghassa S/o. Mangal on 14.11.1956 and after purchasing the property, the plaintiff got his name mutated in the record of Municipal Corporation, Gwalior. The plaintiff alleged that he mortgaged the suit house for his personal need with Mahant Keshavdas, who was the Guru of defendant No. 1-Mahant Kamaldas for Rs. 4000/- on 30.11.1961 and executed a conditional sale deed mentioning the fact that the plaintiff will be entitled to redeem the property by 30.11.1964 after payment of the mortgage amount. When the plaintiff tried to redeem the property by making payment, the defendant No. 1 was not ready to redeem the property and restore the possession, hence the suit was filed. 3. It was further pleaded in the plaint that when the plaintiff applied for correction of the name in Municipal Corporation record, the defendant No. 2 filed objection that he entered into an agreement with Mahant Keshavdas to purchase the property and got a decree on the basis of the agreement for specific performance of the contract and was declared himself as Bhumiswami of the suit house. The plaintiff alleged that since the property was mortgaged with defendant No. 1, the defendant No. 1 had no right to transfer the property to defendant No. 2 as per usufructuary mortgage and no interest was payable in the shape of rent. It was further alleged that in Civil Suit No. 126A/1979 filed by defendant No. 2 against the Guru of defendant No. 1, the plaintiff was not made party and the decree was collusive and not binding on the plaintiff. It was further alleged that in Civil Suit No. 126A/1979 filed by defendant No. 2 against the Guru of defendant No. 1, the plaintiff was not made party and the decree was collusive and not binding on the plaintiff. As the defendant No. 1 was simply a mortgagee, he had no right to transfer the suit property to defendant No. 2 and the plaintiff is entitled to get possession from the defendants. Since Keshavdas died and defendant No. 1 Mahant Kamaldas is in possession of the property, the relief of decree for possession was also prayed for. The plaintiff alleged that he being an unskilled labourer and having income of less than Rs. 6000/- per annum, was entitled to get the benefit of notification issued by State of M.P. dated 1.4.1983 and was exempted from payment of the court fee. 4. The defendant No. 1 admitted the claim of the plaintiff while defendant No. 2 contested the suit. The allegation that the suit property was mortgaged for Rs. 4000/- was denied. It was further denied that the document dated 30.11.1961 was the conditional sale and the period of redemption was agreed to be 30.11.1964. It was alleged that the property was sold to Mahant Keshavdas and the condition of resale by 30.11.1964 was only an agreement for resale of the property and it could not amount to mortgage. It was further denied that the plaintiff was willing to pay the mortgage money but as it was the absolute sale, the question of payment of mortgage money and redemption of the property does not arise. It was further alleged that he agreed to purchase the property from Mehant Keshavdas and on that basis, he got the decree for specific performance of the contract and the plaintiff was not the necessary party to be impleaded as defendant in Civil Suit No. 126A/1979, hence he was not impleaded as party to the suit as it was the absolute sale of the property and the plaintiff is not entitled to get any relief. The death of Mahant Keshavdas was admitted. It was alleged that the condition mentioned in the sale deed was a condition to resale which does not amount to mortgage, hence the suit as filed by dismissed. 5. The death of Mahant Keshavdas was admitted. It was alleged that the condition mentioned in the sale deed was a condition to resale which does not amount to mortgage, hence the suit as filed by dismissed. 5. On the basis of aforesaid pleadings of the parties issues were framed and trial Court after hearing the parties and appreciating the evidence available on record, granted the decree in favour of plaintiff holding that the conditional sale deed dated 30.11.1961 executed in favour of the defendant No. 1 was the mortgage transaction and since it was a conditional sale, the plaintiff is entitled to redemption of the property and the decree passed in Civil Suit No. 126A/1979 is not binding on the plaintiff and the plaintiff is entitled to the benefit of exemption from court fee in view of the notification dated 1.4.1983. 6. Against the judgment and decree passed by the trial Court, defendant No. 2-Lakhanlal Bhargava filed an appeal, which was allowed and the suit of the plaintiff was dismissed holding that Ex. P/1 was not a mortgage deed and it was a conditional sale. It has also been held that it was not proved that the valuation of the property at the time of transaction was more than Rs. 4000/- and the plaintiff has not produced any evidence to show that his income is less than Rs. 6000/-, hence he is not entitled to any benefit of the said notification. Thus, the findings of the trial Court were reversed by the First Appellate Court directing the plaintiff to pay court fee within 15 days. Hence, this second appeal by the plaintiff. 7. Learned counsel for the appellant-plaintiff has submitted that the findings arrived at by the First Appellate Court with regard to income are wrong and perverse. The First Appellate Court has committed error in holding that the transaction (Ex. P/1) was the transaction of sale while it was the mortgage. In absence of any rebuttal to the averment that the value of the property was more than Rs. 10000/-, the First Appellate Court committed error in holding otherwise. It is further submitted that the approach of the lower appellate court in holding that there was no condition of payment of interest and there was no relationship of debtor and creditor between the parties, is illegal and contrary to the terms of the document itself. 10000/-, the First Appellate Court committed error in holding otherwise. It is further submitted that the approach of the lower appellate court in holding that there was no condition of payment of interest and there was no relationship of debtor and creditor between the parties, is illegal and contrary to the terms of the document itself. Hence, learned counsel for the appellant-plaintiff prays that present second appeal be allowed and the suit of the plaintiff be allowed. In alternative, it is prayed that in case it is held that the plaintiff was not entitled to benefit of exemption from payment of court fee, then an opportunity be given to the plaintiff to pay the court fee accordingly. 8. Per Contra, learned counsel for the respondent-defendant has opposed the second appeal and submitted that no error has been committed by lower appellate court, therefore, no interference is warranted by this Court and prayed to dismiss the second appeal. 9. Heard learned counsel for the parties and perused the record. 10. This second appeal wad admitted for hearing vide order dated 28.11.2008 on the following substantial questions of law:- "1. Whether, as per document (Ex. P/1) dated 30.10.1961, the transaction between the parties was a mortgage and not an absolute sale of the property, the Lower Appellate Court committed error in holding that the transaction was an absolute sale and erred in reversing the judgment and decree of the trial Court? 2. Whether, on the basis of the evidence on record, can it be said that the income of the plaintiff is above Rs. 6000/- per annum and not entitled for exemption from payment of court fees, the Lower Appellate Court without granting any liberty to pay the Court fees erred in holding that the sufficient court fees was not paid by the appellant?" 11. On the anvil of the afore-formulated substantial questions, in the present appeal it has to be seen whether as per document (Ex. P/1) dated 30.10.1961, the transaction between the parties was a mortgage and not an absolute sale of the property? 12. Section 54 of Transfer of Property Act, 1882 defines "sale" as under:- "54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made. P/1) dated 30.10.1961, the transaction between the parties was a mortgage and not an absolute sale of the property? 12. Section 54 of Transfer of Property Act, 1882 defines "sale" as under:- "54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made. - Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale. - A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property." 13. "Mortgage" is defined under Section 58 of Transfer of Property Act, 1882, which runs as under:- "58. "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage-deed" defined.- (a) A mortgage is the transfer of an interest in specific immoveable 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.- 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 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 authorises 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. (e) English mortgage.-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 re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage. (f) Mortgage by deposit of title-deeds. -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 immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds. (g) Anomalous mortgage.-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." 14. (g) Anomalous mortgage.-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." 14. On perusal of record it is apparent that the trial Court decreed the suit filed by Rama Bai and Anand Rao, legal representatives of Late Keshav Rao Jadhav and observed that the defendant will redeem the disputed property in favour of plaintiff by getting consideration Rs. 4000/-. The First Appellate Court has observed that Ex. P/1 was not a pledged deed, rather it was a conditional sale. In the present case the presumption is displaced by clear and express word and fulfills Section 58(c) of Transfer of Property Act and does not cover under the proviso to Section 58(c) of the Act. 15. In para 20 of the impugned judgment the First Appellate Court has observed that on perusal of Ex. P/1 it is apparent that Keshav Rao was the owner and possession holder of disputed house and was in need of money Rs. 4000/-. He executed conditional sale deed on 30.10.1964 with the condition that on payment of Rs. 4000/- Keshav Rao will be entitled to get re-executed the sale deed in his favour, but merely by considering the fact that legal representatives of Keshav Rao had not produced any evidence, the documentary evidence on record cannot be discarded. As Ex. P/1 is the documentary evidence, therefore also it cannot be discarded only on the basis of oral evidence. The trial Court has specifically observed in its judgment that plaintiffs Ramabai and Anand Rao had pledged the house in dispute against pledged amount Rs. 4000/- and accordingly the relevant issues were decided in favour of the plaintiff. In support of aforesaid, the trial Court based its judgment on following reliance:- AIR 1973 MP 15 (Amirchand Meghraj vs. Devidas Bhogaram): "When a condition of repurchase is embodied in the document which effects or purports to effect a sale, it is always a matter for construction whether a sale was meant or a mortgage. In such a case, the presumption is that it is a mortgage. That presumption can be displaced by clear and express words. In such a case, the presumption is that it is a mortgage. That presumption can be displaced by clear and express words. If the condition of Section 58(c) of the Transfer of Property Act are fulfilled, the deed should be construed as a mortgage." 1981 (2) MPWN 180 (Naseeh Jahan v. Inamulla Khan): "(1) Transfer of Property Act, 1882 - S. 58(d) - Usufructuary mortgage - what is - deed clearly reciting handing over possession under mortgage - even if mortgage in possession prior to execution of deed his possession becomes that of mortgagee after execution of deed." AIR 1974 GUJARAT 19 (Asmal Bagas Abharam v. Raj Mahijibhai Parbhatsing): "In a registered sale deed containing a condition to reconvey the land, the ostensible sale itself is a consideration for the agreement to reconvey the land; because, the vendor would not have sold the land if the vendee had not agreed to reconvey it. The agreement to reconvey the land is therefore valid and when other requirements of Section 58(c) are satisfied the deed must be held as a mortgage by conditional sale and not an outright sale." 16. In the light of the above discussion, I do not find that this appeal involves any substantial question of law. The second appeal is accordingly dismissed being devoid of merit and the judgment and decree passed by the trial Court is hereby affirmed.