Dulari v. Chooramani — 1996 DIGILAW 621 (MP)

JUDGMENT R.S. Garg, J. 1. The plaintiff who was successful in the trial Court was non-suited in the appeal, therefore has preferred this appeal u/s 100 C.P.C. 2. The appeal was admitted on 10.2.87 on the following substantial question of law :- Whether the sale-deed Ex. P-1 dated 27.4.74 passes a valid title to the appellant. 3. The brief facts which are almost not in dispute are that defendant Choormani executed a sale-deed Ex. P-1 on 27.4.74 and thereunder transferred the suit house well described in plaint para 1 after receiving Rs. 2000/- and the same day i.e. 27.4.74 the plaintiff Dularibai executed an agreement for reconveyance in favour of the defendant that if the amount of Rs. 3500/- with interest in paid to the plaintiff within the period of one year thenshe would transfer the property in favour of the defendant. Agreement Ex D-1 states that the house has been purchased for a sum of Rs. 2000/- and the defendant has taken a loan of Rs. 1500/- on 17.4.74. The total amount of Rs. 3500/- with interest of 3% p.m. if was paid by the defendant to the plaintiff within the period of one year then the plaintiff would reconvey the house in favour of the defendant and if the said amount is not paid then the plaintiff would be entitled to have the possession of the property. The plaintiff came with the case that under the agreement the possession of the property was not immediately delivered but the defendant assured that he would deliver the possession within one month after making some alternative arrangements. As the defendant did not deliver the possession the plaintiff filed the suit. The appellant in his written statement contended that under Ex. P-l he did not sell the house but in fact had executed the sale-deed as an assurance and security for the loan amount. The plaintiff filed the said sale-deed as Ex. P-1 in support of his contention while the defendant filed and relied upon Ex. D-l in support of his contention. The plaintiff examined herself as P.W. 1 and also examined Subhashchandra Gupta (PW 2), Kewal Jain (PW 3) and on the other hand the defendant examined himself as D.W. 1 and also examined Gopiram Patwa as D.W. 2. P-1 in support of his contention while the defendant filed and relied upon Ex. D-l in support of his contention. The plaintiff examined herself as P.W. 1 and also examined Subhashchandra Gupta (PW 2), Kewal Jain (PW 3) and on the other hand the defendant examined himself as D.W. 1 and also examined Gopiram Patwa as D.W. 2. After hearing the parties the learned trial Court by its judgment and decree dated 4.2.83 decided the issue No. 1 in favour of the plaintiff and held that the document Ex. P-1 conveys title in favour of the plaintiff. It also held that the plaintiff did not get the possession of the house. It also held that the defendant did not execute the sale-deed as a security for the loan. According to the trial Court the defendant did not repay the amount and he was entitled to reconveyance in his favour only after making the payment. On these findings the learned trial court decreed the suit and also swaared mesne profits in favour of the plaintiff. Being aggrieved by the said judgment and decree the defendant preferred the first appeal u/s 96 C.P.C. and as the said appeal was allowed and the plaintiff was non-suited he has come up in second appeal. 4. The first appellate court held that the court is entitled to see the intention of the parties and the bar contained u/s 91 and 92 would not be attracted. Holding that the burden to prove that the document was genuine was on the plaintiff it found that the intention of the parties was not to sell the suit property under Ex. P-1 but it was executed as a colateral security for the loan and Ex. D-1 clearly recites that it was a loan transaction. On these findings the learned first court found that the plaintiff had failed to prove his case and is not entitled to any decree. 5. Ku. Kholiya learned counsel for the appellant contended that when the condition of recoveyance is not embodied in the document of sale it cannot be held that the document Ex. P-1 was in fact a mortgage. She further submits that to prove that the document was sham and bogus the party which asserts must prove it. 5. Ku. Kholiya learned counsel for the appellant contended that when the condition of recoveyance is not embodied in the document of sale it cannot be held that the document Ex. P-1 was in fact a mortgage. She further submits that to prove that the document was sham and bogus the party which asserts must prove it. She also submits that the evidence to prove that the document was in fact not to be acted upon as the intention of the parties was different is not in admissible in evidence but the burden is very heavy on the party who asserts that the document was not to be acted upon. Relying upon Simirathmull v. Nanjalingish A.I.R. 1963 S.C. 1182 she submitted that when there were two documents which were separate and distinct, the court below could not hold that there was mortgage of the property. 6. On the other hand Shri Pandey, counsel for the respondent relying upon Indira Kaur v. Sheolal Kapoor A.I.R. 1988 S.C. 1074 submitted that when there was a contempordneous agreement to resale the property and some fixed period is stipulated for claiming resale, the transaction in reality is a mortgage. He also submitted that the sale-deed and contemporaneous agreement to reasale the property for the same sum if is executed between the parties, it must be held that the transaction was not sale but in fact was a mortage and the sale-deed was executed as a colateral security. He further submits that the appeal court after appreciating the evidence had recorded a finding of fact that the transaction in fact was not a sale then this court should not interfere. 7. In the matter of Gangabai v. Chhabubai A.I.R. 1982 S.C. 20 the Supreme Court has held as under :- The bar imposed by sub-sec. (1) of S.92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement of statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement of statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never in ended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document was entered into between the parties. 8. It is clear from the law laid down by the Supreme Court that the bar contained u/s 92 (1) of the Evidence Act is not applicable when a party asserts that a document is sham. In a situation like that what is recorded in the document become immaterial because a party is free to prove by leading evidence that the document executed was never intended to operate but some other agreement not recorded in the document was entered between the parties. It is cardinal principle of law that the party which asserts a fact has to prove his assertion. In the instant case the plaintiff stated that under Ex. P-1 the property was sold to the plaintiff. Execution of Ex. P-1 is not denied by the defendant. It is also not in dispute that the document was registered and was in possession of the plaintiff. The plaintiff has successfully proved that Ex. P-1 was executed by the defendant and therefore unless it is proved contrary to what is embodied in Ex P-1 by leading oral evidence that term contained in Ex. P-1 shall be binding on the parties. The learned trial court was not wrong in holding that as there are contemporaneous document the intention of the parties must be gathered after reading both the documents jointly. In the case of Indira Kaur (supra) the sale-deed was for a certain sum. P-1 shall be binding on the parties. The learned trial court was not wrong in holding that as there are contemporaneous document the intention of the parties must be gathered after reading both the documents jointly. In the case of Indira Kaur (supra) the sale-deed was for a certain sum. The agreement entered into between the parties could be enforced at any time within 10 years for the identical sum. The Supreme Court in the said case further held that if the purchaser wanted to purchase the immovable property he would never agree to convey the very same property for the same amount even after 10 years. According to the Supreme Court the stipulated period for conveying the property was a very long period of ten years. The very length of the period according to the Supreme Court was suggestive of a transaction of mortgage and not a transaction of absolute sale with a stipulation to reconvey the property in such paculiar circumstances. The Supreme Court also found that if the purchaser purchased the property for his personal occupation he would not have allowed the defendant to continue in possession. The Supreme Court on the particular facts of the case same to the conclusion that the document in effect was a mortgage and was designed to curtail the period of limitation of 30 years which is available for redemption. According to this judgment the court shall be entitled to consider the true intent of the document and the real intention of the parties behind the document. 9. The first appellate court so far as it appreciated the legal position regarding admissibility of the evidence was right but erred in holding that even if the defendant takes the defence that the document was sham the burden is not upon him to prove the same. In my opinion the appeal court committed a illegality in holding that the burden would not be upon the defendant. Under the provisions of the Evidence Act the burden is always upon the party which asserts the fact. In my opinion the appeal court committed a illegality in holding that the burden would not be upon the defendant. Under the provisions of the Evidence Act the burden is always upon the party which asserts the fact. If the defendant fails to prove his contention that the document was sham or bogus then the court would have no option but to grant a decree in favour of the purchaser in view of the admission made by the defendant because the moment the document is challenged as sham or is challenged that behind the execution of the agreement the parties had some different intention, the execution of the document is never under challenge. In the opinion of this court the learned first appellate court was wrong in holding that Ex. P-1 was not sale but in fact and effect it was a loan transaction. Ex. D-1 is the contemporaneous document of the even date. D-l states that the property has been sold for a sum of Rs. 2000/- andprior to the date of the sale-deed the defendant had taken a loan of Rs. 1500/- If the defendant repaid the amount of Rs. 3500/- with interest then the property would be sold back for Rs. 2000/-, in favour of the defendant. The principle laid down by their lordships of the Supreme Court in the case of Indira Kaur (supra) would not be applicable in this case. There the period for reconveyance was 10 years but in the instant case the period was one year. There the property was to be reconveyed for same price after 10 years but in the instant case though the property was to be conveyed for Rs. 2000/- but the additional burden of another loan amount was also made a condition precedent for seeking the relief of recoveyance from the plaintiff. It is not the case that for sum of Rs. 2000/- only the property would be reconveyed. The property was to be reconveyed for Rs. 2000/- but the defendant was obliged to pay Rs. 1500/- and 3% interest on that amount within the period of one year. The first appellate court was not justified in holding that because the amount of Rs. 3500/- included the amount of loan therefore Ex. P-1 was not a sale-deed but was a colateral security for the loan amount. The property was sold on 27.4.74. 1500/- and 3% interest on that amount within the period of one year. The first appellate court was not justified in holding that because the amount of Rs. 3500/- included the amount of loan therefore Ex. P-1 was not a sale-deed but was a colateral security for the loan amount. The property was sold on 27.4.74. The plaintiff moved an application for mutation of his name in the year 1975. The order dated 24,2.76 which is taken on record as additional evidence is passed by the Asstt. Supdt. Land Records (Nazool) in which he has mentioned that seller Churamani (defendant) has admitted the sale and his signatures on the sale-deed. On 24.2.76 itself the property was ordered to be mutated in the name of the plaintiff. In the case of Indira Kaur (supra) the Supreme Court held that the transaction was a mortgage or of loan because for long years the purchaser did not move for mutation. In the instant case the purchaser had moved an application for mutation in the years 1975 itself and on no objection from the seller his name was ordered to be mutated under order dated 24.2.76. The authority relied upon by Shri Pandey does not apply to the facts of this case. 10. The learned appellate court also held that if this was a real sale then immediately after expirty of one year the plaintiff should have filed the suit for possession but as the suit for possession has been filed in the year 1979 and he did not obtain the possession immediately after execution of the sale-deed it must be presumed that the transaction was loan transaction. I am unable to agree with the findings recorded by the appellate court. The sale-deed was executed on 27.2.74. The period for reconveyance was one year which would expire on 27.4.75. The plaintiff, who was not in possession, on the strength of his title should always filed a suit within 12 years from the date of execution of the sale-deed or from the date when the document for recoveyance become in operative because of its own terms. Filing of the suit after 4 years from the date of the period mentioned in Ex. D-1 would not come in the way of the plaintiff. P.W. 1 has clearly stated that the defendant did not take the loan of Rs. Filing of the suit after 4 years from the date of the period mentioned in Ex. D-1 would not come in the way of the plaintiff. P.W. 1 has clearly stated that the defendant did not take the loan of Rs. 1000/-nor did he execute the sale-deed in view of the loan of Rs. 1000/-. It was suggested to her that the defendant had repaid the entire amount of loan but the plaintiff categorically denied it. Subhashchander (PW 2) is a witness to Ex. P-1 His statement is not material about Ex. P-1 and D-1 because there is no dispute between the parties but one thing emerges from his statement that it was never suggested to him that Ex. P-1 was executed as a colateral security in view of the loan. Kewalchander (PW 3) in his statement has clearly stated that sum of Rs. 2000/- was paid to the defendant Churamani in his presence. He had stated that sale was for Rs. 2000/- and Ex. D-1 was executed between the parties. He had clearly denied that there was no sale of the property. Churamani (DW 1) in his statement has stated that he had mortgaged the property for a sum of Rs. 1000/-and he had repaid that amount in 16 monthly instalment of Rs. 85/- each. According to him when he asked for a registered document he was assured that in view of the possession being with him he does not need a registered document. In para 7 he clearly states that he did not pay the amount of Rs. 3500/- to the plaintiff but only paid the above said 16 instalments. From his statement it does not appear that the transaction was of loan. The fact that he had taken loan of Rs. 1000/- only is contrary to the statements contained in Ex. P-1 executed by the defendant and in Ex D-1 received by the defendant. Each of these documents clearly recite that the sale consideration was Rs. 2000/-. In the written statement the defendant has stated that he had taken the loan of Rs. 1000/- and the said amount has been paid by him to the plaintiff. He has clearly admitted in his statement that immediately after the repayment of the amount no notice was given by him to the plaintiff. 2000/-. In the written statement the defendant has stated that he had taken the loan of Rs. 1000/- and the said amount has been paid by him to the plaintiff. He has clearly admitted in his statement that immediately after the repayment of the amount no notice was given by him to the plaintiff. Gopiram Patwa (DW 2) has supported the case of the defendant but it is in relation to the payment of the instalments. No suggestion has been given to PW 1 Dularibai that there was certain talks about the execution of the reconveyance document and Gopiram Patwa (DW 2) was present. No suggestion of Rs. 1000/- or payment of the amount in instalments has been given to the plaintiff. In absence of such a suggestion to the plaintiff, the evidence of the defendant or his witnesses cannot be relied upon. The learned first appellate court was not justified in holding that Ex. P-1 and D-1 if read together would lead to the only conclusion that the transaction between the parties was of loan. In my opinion the transaction between the patties was of sale and Ex. P-l conveyed full titled to the plaintiff. As the plaintiff on the date of the suit and even today continuous to be the owner of the property he is entitled to possession of the property. 11. The judgment and decree passed by the first appellate court are set aside and that of learned trial court are reatored. It is directed that the plaintiff is entitled to possession of the property well described in para 1 of the plaint. He shall also be entitled to a sum of Rs. 2160/- as the mesne profits prior to the date of the suit and would also be entitled to the mesne profits (xd Rs. 60/- p.m. from the date of the suit till delivery of possession. The plaintiff shall also be entitled to the costs throughout. A decree be drawn accordingly.