Chuttu v. Abdul Jabbar — 1956 DIGILAW 28 (MP)

JUDGMENT : This is a second appeal by Shiekh Chuttu, Defendant, against the judgment of the second Additional District Judge, Bhopal allowing the appeal of Abdul Jabbar, plaintiff, and thereby decreeing his suit for possession of the disputed house and for mesne profits amounting to Rs. 248/8/-. The plaintiff had also claimed future mesne profits till the date of recovery of possession. The first appellate Court has not passed any order on this relief, with the result that Abdul Jabbar has filed a cross-objection for ordering an enquiry with regard to the said relief under O. 20 R. 12(1)(c), Civil P.C. 2. The facts of the case are very simple. On 4-2-1948 Shiekh Chuttu, defendant, executed a sale-deed in respect of the house in dispute in favour of Abdul Jabbar, plaintiff, for a consideration of Rs. 1000/- and the sale deed was registered in. accordance with the law. On the same date the plaintiff executed an unregistered agreement whereby he undertook to return the property, if at any time the sale-consideration of Rs. 1000/- was repaid. 3. Prom the written-statement it appears that the parties are near relations. The son of the defendant-appellant is married to the daughter of the plaintiff-respondent. The dispute arose on the rent payable by the defendant. Abdul Jabbar was claiming rent at Rs. 12/- per month on the basis of a Qabuliat said to have been executed by the defendant but which was not admitted to have been so executed by him. Sheikh Chuttu, on the other hand, wanted to pay interest at the rate of -/12/-per cent per month on the consideration of Rs. 1000/-. Abdul Jabbar moved the Controller for permission to file a civil suit on the ground that the arrears of rent had not been paid. Sheikh Chuttu contested the proceeding, denied the tenancy and himself claimed to be the owner of the Louse. That application was dismissed and Abdul Jabbar instituted the present suit on the basis of title and claimed mesne profits at Rs. 7/8/- per month only, though he added that the house could be leased out for a monthly rent of Rs. 12/-. He not only prayed for possession and the mesne profits up to the date of the suit but also future mesne profits up to the date of delivery of possession. 4. 7/8/- per month only, though he added that the house could be leased out for a monthly rent of Rs. 12/-. He not only prayed for possession and the mesne profits up to the date of the suit but also future mesne profits up to the date of delivery of possession. 4. Sheikh Chuttu contested the suit and his defence in brief was that the transaction did not amount to a sale but was a mortgage by conditional sale. He further added that the plaintiff could realise interest at -/12/- per cent per month. The trial Court was of opinion that the transaction amounted to a mortgage by conditional sale and consequently dismissed the suit. The first appellate Court took a different opinion and decreed the suit but omitted to pass any order on the third relief for future mesne profits. 5. In the circumstances of the present case the order of the first appellate court must be upheld. Section 59, Bhopal Transfer of Property Act, which is similar to S. 59,Central Transfer of Property Act, clearly provides that a mortgage other than a mortgage by deposit of title-deeds must be by a registered instrument, signed by the mortgagor and attested by at least two witnesses, unless the principal money secured is less than Rs. 100/-. In the present case the principal money is, if the transaction is to be a mortgage by conditional sale Rs. 1000/-. Thus registration was necessary. Section 58(c), Bhopal Transfer of Property Act) does not have the proviso as in S. 58(c) of the Central Act, with the result that under the Bhopal Act a mortgage by conditional sale can be witnessed by two separate documents, one, which purports to be the sale-deed and the other a deed of agreement for the re-transfer, etc., of the property. Where a mortgage by conditional sale is witnessed by two documents, both of them would relate to the same transaction and would together constitute a deed of mortgage. When both the documents amount to a deed of mortgage, the registration of both would be necessary under S. 59. Also see Harikisandas Bhagwandas v. Bai Dhanu, AIR 1926 Bom 497 (FB) (A) and Rajjulal v. Jalal-uddin, AIR 1950 Hyd 51 (B), in which a similar view was taken. In the present case only the sale deed was registered and not the deed of agreement. Also see Harikisandas Bhagwandas v. Bai Dhanu, AIR 1926 Bom 497 (FB) (A) and Rajjulal v. Jalal-uddin, AIR 1950 Hyd 51 (B), in which a similar view was taken. In the present case only the sale deed was registered and not the deed of agreement. Consequently the deed of agreement would be inadmissible, In evidence, if the transaction is treated to be a mortgage by conditional sale. But the registration of an ordinary agreement is not necessary and consequently, if the transaction amounts to a sale out and out the agreement, even if unregistered, can be enforced and would be permissible under the law as a separate contract between the parties. Thus the fact that the agreement was not registered can be used to infer that the transaction was not a mortgage by conditional sale. 6. The present transaction cannot also be said to be a mortgage by conditional sale in view of the definition of such mortgage as contained in S. 58(c). It contemplates a certain date by which the payment of the mortgage money has to be made. In the present case no date had been specified for the payment of the mortgage money. An option was given to the defendant to repay the sum of Rs. 1000/- at any time when he liked. In other words, the present transaction does not come within the four corners of a mortgage by conditional sale as defined in S. 58(c). 7. Even on merits, the transaction would be deemed to be a complete sale. The parties to the litigation are, as mentioned above, near relations. In fact, Abdul Jabbar, plaintiff, is placed in a weaker position. Such a person is likely to show leniency to the other, and as a matter of grace to permit re-transfer of the property if the ether repaid the consideration of Rs. 1000/- at any time that he liked. This would show that the unregistered agreement, though executed on the same day, did not form part of the main transaction of sale but was a separate agreement whereunder the plaintiff agreed to re-transfer the property if the consideration money was repaid. The wordings of the sale-deed further clearly show that the defendant was transferring all the interest that he had in the property and not that he was retaining certain interest in that property. 8. The wordings of the sale-deed further clearly show that the defendant was transferring all the interest that he had in the property and not that he was retaining certain interest in that property. 8. The question whether a particular transaction amounts to a transfer by sale or a mortgage by conditional sale was considered by me in another case Jangoolal v. Jivanlal, Second Appeal No. 14 of 1955, (Bhopal) (C) and consequently it is not necessary to refer to the case-law on the subject in this Judgment also. But it may briefly be mentioned that in determining the nature of the transaction the Courts can look into the two documents alleged to constitute the same transaction and can also take into consideration the circumstances of the case. But the parties cannot be permitted to lead oral evidence on the intention of the parties at the time of the transaction, as such evidence would be barred under S. 92, Evidence Act. In the present case there is virtually no circumstance in favour of the defendant. The fact that no period was specified in the agreement will go more against him than in his favour. A period is generally specified when the parties treat the transaction to be a mortgage and it is when the re-conveyance of the property is permitted in order to show favour to the original vendor that no period is specified so that he may at any time, when he can arrange for money, pay back the sale-consideration and recover the property. The agreement was not registered as it should have been if it was a part of the mortgage deed; the value of the house appears to be the came as entered in the sale-deed. It is true that when a question was put to the defendant by the Court he deposed that the house was worth Rs. 3000/-. But no such point was raised in the written-statement. Nor was the plaintiff cross-examined on the value of house. The defendant himself did not make such a statement by himself. Consequently a casual statement made at the end of the deposition cannot be accepted to be correct. Thus the house was sold for an amount it was worth. 8. To sum up, the transaction is one of complete sale and not of a mortgage by conditional sale. The defendant himself did not make such a statement by himself. Consequently a casual statement made at the end of the deposition cannot be accepted to be correct. Thus the house was sold for an amount it was worth. 8. To sum up, the transaction is one of complete sale and not of a mortgage by conditional sale. The plaintiff being the owner is entitled to recover possession from the defendant without serving any notice under the Transfer of Property Act, when the admitted case of the parties is that the status of the defendant is not of a tenant or a lessee. The present suit would, therefore, be deemed to have been based on title and the status of the defendant would be like that of a trespasser liable to ejectment at the sweet will of the owner, the defendant himself offered to pay Rs. 7/8/- per month. Consequently the appellate Court was right in decreeing the suit for possession and for mesne profits at Rs. 7/8/- per month. 10. Order 20, Rule 12(1)(c), Civil P.C., gives power to the court to pass a decree directing an enquiry as to mesne profits from the institution of the suit until the delivery of possession to the decree-holder. The appellate Court did not pass such a decree. At the same time it may be observed that this aspect of the case was not at all considered by that Court. In the plaint there was a definite prayer for the grant of future mesne profits on the plaintiff paying the necessary court-fee. This prayer should not have been overlooked, specially when it is apparent that a part of the claim for "future mesne profits would be barred by limitation. The implied order of the first appellate Court refusing to pass a decree for future mesne profits would thus be deemed to be against the law and can be set aside in Second Appeal. 11. For reasons given above, the appeal is hereby dismissed with costs, while the cross-objection is allowed. Costs of the cross-objection would be on the parties. The respondent is being deprived of the costs of the cross-objection, as he could easily have the decree of the appellate Court amended by moving a review application, but he did not take such steps. For reasons given above, the appeal is hereby dismissed with costs, while the cross-objection is allowed. Costs of the cross-objection would be on the parties. The respondent is being deprived of the costs of the cross-objection, as he could easily have the decree of the appellate Court amended by moving a review application, but he did not take such steps. It is further ordered that the plaintiff's suit be and is hereby decreed with costs, except for the costs of the cross-objection, for possession and for mesne profits amounting to Rs. 248/8/-, and it is further ordered that an enquiry be held as to the mesne profits due to the plaintiff from the institution of the suit until the delivery of the possession to him. The decree for future mesne profits will be capable of execution only after the payment of the necessary court-fee. Order accordingly.