LAW FOR ALL

specific performance of an agreement of re-conveyance of the suit land. is not maintainable =The District Court also held that Ex-18, the alleged agreement of re-conveyance did not mention that there was a loan transaction between the parties and that Ex-19, the sale deed was not to be acted upon. It did not mention the date and period within which the suit land was to be re-conveyed after payment of the loan amount. Therefore, the case that Ex-19 was a nominal sale deed cannot be accepted. = Ex-19 is a genuine sale deed. It clearly speaks of an out and out sale. We have stated that Ex-18 is not an agreement to re- convey the land on repayment of loan. The sale deed [Ex-19] is clearly worded leaving no scope of ambiguity. So far as Ex-18 is concerned, it is so worded as not to establish any link with Ex-19. It does not speak of any loan transaction at all. Though there is no ambiguity in Ex-19 and we are certain that the transaction in question is a genuine sale transaction, to lend support to our conclusion we may touch upon the surrounding circumstances. If Ex-18 was to be an agreement for re-conveyance, it would not have been titled as 'Receipt'. It would have been signed by the original plaintiff and the defendant. It is pertinent to note that it is signed only by the defendant. It is executed on a simple paper. It does not state within what time the amount was to be repaid and the agreement of repurchase was to be executed. It is also important to note that in the cross-examination, original plaintiff has clearly admitted that Ex- 18 was executed before execution of sale deed [Ex-19]. Hence, the original plaintiff's case that the defendant insisted that he would lend money to him only if he would execute nominal sale deed and, therefore, the nominal sale deed was executed and the loan was advanced, does not stand to reason. The District Court has rightly said that at the most it could be said that Ex-18 culminated into a genuine sale deed [Ex-19]. The original plaintiff's case that the transaction of sale was followed by agreement for re-transfer is not substantiated. It is also hit by Section 58(c) of the Transfer of Property Act which this Court analyzed in Chunchun Jha and stated that if sale and agreement for re-purchase are embodied in separate deeds then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. Here we clearly have two separate documents. Similar view has been taken by this Court in Raj Kishore v. Prem Singh[3]. The High Court, therefore, clearly erred in holding that there was an agreement for re-conveyance and the original plaintiff was entitled to specific performance thereof.- In the result, the appeal is allowed. The impugned order dated 20/7/2004 is set aside. The judgment and order dated 12/3/1986 passed by the District Judge, Buldana in Regular Civil Appeal No.130 of 1983 is restored.