Transfer of Property Act - Section 58- The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation….
first is that the intention of the parties is the determining factor- The next step is to see whether the document is covered by section 58(c) of the Transfer of Property Act, for, if it is not, then it cannot be a mortgage by conditional sale. The first point there is to see whether there is an "ostensible sale." That means a transaction which takes the outward from of a sale, for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached.
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