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2000 DIGILAW 129 (GAU)

Sushil Chandra Dey v. Chitta Ranjan Dey

2000-03-24

P.C.PHUKAN

body2000
I have heard Mr. AM Lodh, learned senior counsel for the appellant in SA No.6 of 1992 and in SA No.7 of 1992 as well as Mr. D. Chakraborty, learned counsel for the respondent in SA No.6 of 1992 and in SA No.7 of 1992.1 have also considered the records. 2. Second appeals SA No. 6 of 1992 and SA No. 7 of 1992 are directed against the common judgment and decree dated 1.3.92 passed by the learned District Judge, South Tripura, Udaipur in Title Appeal Nos 9 and 10 of 1991 setting aside the common judgment and decree dated 18.7.91 passed by the learned Munsiff at Udaipur in Title Suit No.3 of 1986 and Title Suit No. 14 of 1988. 3. In TS No. 3 of 1986, the case of the plaintiff Sushil Dey, in brief, is that the defendant No.l Chitta Dey sold the suit land at Rs.3,000 to the proforma defendant No.4 Jogesh Sana by executing a registered sale deed dated 3.3.84 and handed over possession thereof to him. Jogesh Saha later sold the said land at Rs.3,000 to the proforma defendant No. 5 Binoy Deb by executing a registered sale deed dated 24.5.84 and handed over possession thereof to him. Lastly, Binoy Deb sold the said land at Rs. 5,000 to the plaintiff Sushil Dey by executing a registered sale deed dated 16.9.84, and handed over possession thereof to him. It is alleged that on 29.1.86 the defendant No. 1 Chitta Dey with his two sons, the defendant Nos 2 and 3 attempted to dispossess the plaintiff Sushil Dey from the suit land, hence the plaintiff's suit for declaration of his title, confirmation of possession and permanent injunction in respect of the suit land. 4. The defendant No. 1 Chitta Dey not only contested TS No. 3 of 1986 by filing a written statement but also instituted TS No. 14 of 1988 as plaintiff impleading the plaintiff Sushil Dey of TS No.3 of 1986 as defendant No.3 along with proforma defendant No. 4 Jogesh Saha of TS No.3 of 1986 as defendant No.l and proforma defendant No. 5 Binoy Deb of TS No.3 of 1986 as defendant No. 2. 5. 5. In TS No. 14 of 1988, the case of the plaintiff Chitta Dey, in brief, is that on 3.3.84 he borrowed Rs.3,000 from the defendant No.l Jogesh Saha by mortgaging the suit land by executing a registered sale deed dated 3.3.84 and on the same day Jogesh Saha executed a registered deed for reconveyance that on repayment of the loan amount within 30.3.84 he would return the said land to Chitta Dey. Failing to repay the loan amount in time, the plaintiff Chitta Dey borrowed Rs.3,000/- from the defendant No. 2 Binoy Deb and paid the same to the defendant No.l Jogesh Saha and asked him to execute a sale deed in respect of the suit land in favour of the defendant No. 2 Binoy Deb. Accordingly, Jogesh Saha executed registered sale deed dated 24.5.84, and Binoy Deb orally agreed to return the suit land to Chitta Dey on repayment of the loan amount. Again, , failing to repay the loan amount on demand, the plaintiff Chitta Dey borrowed Rs. 4,000/- from the defendant No.3 Sushil Dey and repaid the loan amount to the defendant No.2 Binoy Deb and asked him to execute a sale deed in respect of the suit land in favour of the defendant No.3 Sushil Dey. Accordingly, Binoy Deb executed registered sale deed dated 16.9.84, and Sushil Dey orally agreed to return the suit land to Chitta Dey on repayment of the loan amount. It is alleged that the plaintiff Chitta Dey has been ready to repay the loan amount, but the defendant No. 3 has refused to accept the same and to execute the deed of reconveyance in his favour. Instead, Sushil Dey instituted TS No.3 of 1986, obtained temporary injunction and came to illegally possess the suit land since February, 1986. Hence Chitta Dey instituted TS No. 14 of 1988 praying that the defendant No. 3 Sushil Dey be directed to execute the deed of reconveyance in respect of the suit land in his favour after accepting the loan amount from him. The defendant No. 1 Jogesh Saha and the defendant No.2 Binoy Deb filed a joint written statement supporting the case of the plaintiff. The defendant No.3 Sushil Dey contested the suit and filed a written statement denying to have orally agreed to return the suit land to the plaintiff Chitta Dey on repayment of the loan amount to him. 6. The defendant No. 1 Jogesh Saha and the defendant No.2 Binoy Deb filed a joint written statement supporting the case of the plaintiff. The defendant No.3 Sushil Dey contested the suit and filed a written statement denying to have orally agreed to return the suit land to the plaintiff Chitta Dey on repayment of the loan amount to him. 6. On consideration of the evidence on record and after hearing the learned counsel for the parties, the trial Court has held that all the transactions on 3.3.84, 24.5.84 and 16.9.84 are outright sale and not mortgage holding that no oral evidence is admissible for the purpose of contradicting or varying to the terms in view of sections 91 and 92 of the Evidence Act and that the oral agreement between Sushil Dey and Chitta Dey for reconveyance of the suit land on repayment of the loan amount is inconsistent with the terms of the sale deed dated 16.9.84 and hence evidence of such oral agreement is inadmissible. The trial Court has held that Sushil Dey is the rightful owner and possessor of the suit land and that Chitta Dey is not entitled to claim reconveyance on repayment of the loan amount. The trial Court, therefore, decreed TS 3 of 1986 instituted by Sushil Dey and dismissed TS 14 of 1988 instituted by Chitta Dey by his common judgment and decree dated 18.7.91. 7. Being aggrieved, Chitta Dey preferred Title Appeal No. 9 of 1991 in respect of TS No. 14 of 1988 and Title Appeal No. 10 of 1991 in respect of TS No.3 of 1986 before the learned District Judge, Udaipur. By the common judgment and order dated 31.3.92 the District Judge allowed both the appeals, reversed the judgment and decree in both TS No. 3 of 1986 and TS No. 14 of 1988, dismissed the former instituted by Sushil Dey and decreed the later instituted by Chitta Dey. 8. Against the above mentioned common judgment and decree dated 31.3.92, Sushil Dey preferred second appeal RSA No. 60/1992 in respect of Title Appeal No. 10 of 1991 and second appeal SA No.7 of 1992 in respect of Title Appeal No. 9 of l991. 9. 8. Against the above mentioned common judgment and decree dated 31.3.92, Sushil Dey preferred second appeal RSA No. 60/1992 in respect of Title Appeal No. 10 of 1991 and second appeal SA No.7 of 1992 in respect of Title Appeal No. 9 of l991. 9. By identical orders dated 22.2.99 passed in both RSA No.6 of 1992 and SA No.7 of 1992 this Court directed to list both the second appeals together for hearing and formulated identical substantial question of law as under : “1. Whether the oral evidence produced by defendant No.l against the contentions and terms of the sale deed dated 3.3.84 and 6.9.84 are hit by section 91 and 92 of the Evidence Act? 2. Whether the agreement can be enforced against the subsequent purchasers when the transaction of sale took place after the expiry of reconveyance? 3. Whether the transactions between the parties are sale or mortgage?” 10. The trial Court has held that the transactions on 3.3.84, 24.5.84 and 16.9.84 are outright sale and not mortgage. The first appellate Court also has held that the transactions are not mortgage, and observed: “A sale deed was executed by Chitta Ranjan Day in favour of Jogesh Saha and on the same day another agreement of reconveyance was executed by Jogesh Saha in favour of Chitta Rn Dey (Ext C), and sale and agreement to reconvey as mentioned above not embodied in the same document, thereby the transaction between Chitta Rn Dey and Jogesh Saha cannot be treated as mortgage.” 11. Similarly, the two subsequent transactions on 24.5.84 and 16.9.84 cannot be treated as mortgage inasmuch as no condition for reconvey ante on repayment of loan amount was embodied in the respective sale deeds. Section 58 (c) of the Transfer of Property Act, 1882 reads as under: “58. Similarly, the two subsequent transactions on 24.5.84 and 16.9.84 cannot be treated as mortgage inasmuch as no condition for reconvey ante on repayment of loan amount was embodied in the respective sale deeds. Section 58 (c) of the Transfer of Property Act, 1882 reads as under: “58. (c) 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 a 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.” 12. In Chunchhum Jha's case reported in AIR 1954 Supreme Court 345 (para 7), it has been held: “Under the proviso to section 58 (c), if the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not.” 13. Both the trial Court and the first appellate Court have rightly held that the transaction on 3.3.84, 24.5.84 and 16.9.84 are not mortgage by conditional sale. What is then the true nature of these transactions? Each of these transactions, the trial Court decided in issue No.5 of this judgment, is outright sale holding that except the document itself, no evidence of any oral agreement for contradicting, varying, adding to or subtracting from its terms is admissible in view of the provisions in sections 91 and 92 of the Evidence Act. The trial Court, therefore, has held that the transaction on 16.9.84 being an outright sale, Sushil Dey became absolute owner of the suit land, and the evidence adduced by Chitta Dey about separate oral agreement for reconveyance of the suit land and about his continued possession thereof is inadmissible and hence Chitta Dey is not entitled to any decree for reconveyance and for recovery of possession. The first appellate Court, however, pointed out that "the learned trial Court did not take into consideration about die agreement to reconvey the suit land executed by Jogesh Saha in favour of Chitta Dey (Ext C).” This agreement to reconvey is not an oral agreement but a registered document. The first appellate Court observed that besides this registered document Ext C for reconveyance, there had been oral agreement reached between the parties, ie, Jogesh Saha, Benoy Bhusan Dev and Sushil Dey with Chitta Ranjan Dey prior to execution of the aforesaid sale deeds that if money is paid by Chitta Ranjan Dey they would be bound to reconvey the suit land in favour of Chitta Ranjan Dey. Now, the question comes whether that oral agreement as to reconveyance contradicts the terms of the sale deeds and whether such evidence is admissible." Section 92 of the Evidence Act read with the proviso (6) thereto shows that even if oral agreement contradicts the terms of a document, evidence to prove any fact which shows in what manner the language of a document is related to existing facts is admissible. The relevant portion of section 92 reads as under: “92. When the terms of any such contract grant or other disposition of property or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradiction, varying, adding to, or subtracting from, its terms: .... .... .... Proviso (6) - Any fact may be proved which shows in what manner the language of a document is related to existing facts.” 14. in this regard the relevant portions from Nipamacha Singh's case reported in AIR 1965 Manipur 31 are extracted below: “4. In Bolumai Dharmdas's case AIR 1959 Andhra Pradesh 612 it has been held that extrinsic evidence to prove the intention of the parties for. construing an instrument will violate section 92 of the Evidence Act, and that it is not competent for a Court to look into the evidence of surrounding circumstance to find out whether a document, which purported to be an out and out sale, was intended to take effect only as a security bond. 9. construing an instrument will violate section 92 of the Evidence Act, and that it is not competent for a Court to look into the evidence of surrounding circumstance to find out whether a document, which purported to be an out and out sale, was intended to take effect only as a security bond. 9. In the decision in AIR 1959 Andhra Pradesh 612 it has been held on construction of sections 92,94,95 of the Evidence Act that it is only in cases where the terms of the document leave the question in doubt, that resort could be had to proviso 6 of section 92.1 find myself unable to agree with these observations.... Proviso 6, on the other hand, applies only to cases where the terms of a document are clear and unambiguous but where the terms have no meaning in relation to b existing facts. 10. In order that the main body section 92 should apply to prevent evidence being admitted for the purpose of contradicting, varying, adding to or subtracting from the terms of a document, two things are necessary, namely, that the language used in the document is plain in itself and that it applies accurately to existing facts. If the language is plain but it does not apply accurately to existing facts, evidence may be given to show that the language in the document was used in a peculiar sense. 11. Now coming to the matter before us, we here have a document, which is written as a sale deed. The contention of the vendor is that the language used in the document had no meaning in relation to existing facts. He pointed out that the consideration, namely, Rs. 340 shown in the document was far less than the real , value of the property which according to him was Rs. 1,300. Secondly, he pointed out that no possession of the property was given, but that it continued to be with the vendor....” 15. I am in respectful agreement with the view taken in Nipamacha Singh's case reported in AIR 1965 Manipur 31 . In the instant case also, though the language used in the documents purported to be sale deeds is plain but such language does not apply accurately to the existing facts. Ghitta Dey in para 10 of his plaint in TS 14 of 1988 said. In the instant case also, though the language used in the documents purported to be sale deeds is plain but such language does not apply accurately to the existing facts. Ghitta Dey in para 10 of his plaint in TS 14 of 1988 said. 'The plaintiff has mortgaged (Courts below held that the transactions were not mortgage) the suit land on petty sum far less than actual price thereof.” In his evidence before the Court he said that the actual price of the suit land was not less than Rs. 60,000. The price of the suit land is shown as Rs.3,000 in the sale deeds dated 3.3.84 and 24.5.84 and as Rs. 5,000 in the sale deed dated 16.9.84 in favour of Sushil Dey. Chitta Dey told the trial Court, the suit land had been in his possession. But he did not go there “after the Court issued temporary injunction.” In their evidence before the Court, Chitta Dey, Jogesh Sana and Binoy Deb said in one voice and with complete unanimity that the possession of the suit land continued to be with Chitta Dey till the trial Court issued temporary injunction and that at the time of transaction on 3.3.84 a registered agreement for reconveyance was also executed the same day and that at the time of the transactions on 24.5.84 arid 16.9.84 there had been oral agreement for reconveyance of the suit land to Chitta Dey on repayment of loan amount by him. It is not in evidence that in such oral agreement any time limit was fixed for repayment of loan amount. 16. Reverting back to the substantial question of law as formulated by this Court vide identical orders dated 22.2.99 in both the Second Appeals S'A No. 6 of 1992 and SA No. 7 of 1992 quoted in para 9 of this judgment, I am of the view that the oral evidence produced by Ghitta Dey referred to in the preceding para of this judgment is not hit by sections 91 and 92 of the Evidence Act. Although the stipulated period expired on 30.3.84 and Chitta Dey repaid the loan amount only on 24.5.84, Jogesh Saha did accept the same, and as requested by Chitta Dey executed the registered sale deed on 24.5/84 in favour of Binoy Bhusan Deb, who, in turn, again as requested by Chitta Dey, executed the registered sale deed on 16.9.84 in favour of Sushil Dey, both Binoy Deb and Sushil Dey orally agreeing to reconvey the suit land to Chitta Dey on repayment of loan amount by him. Thus in relation to 'Chitta Ranjan Dey and the suit land, Sushil Dey has stepped into the shoes of Binoy Deb, who stepped into the shoes of Jogesh Saha. It has, therefore, to be construed that ultimately it was Sushil Dey who stepped into the shoes of Jogesh Saha. Thus the oral agreement on 16.9.84 for reconveyance of the suit land to Chitta Dey on repayment of the loan amount is enforceable against the subsequent purchaser Sushil Dey. Lastly, the transaction on 3.3.84, 24.5.84 and 16.9.84 are neither mortgage nor outright sale. The substantial question of law as formulated by this Court is answered accordingly. In second appeal, this Court's jurisdiction is confined to substantial question of law only. 17. The first appellate Court held : “So from the series of transactions on record and consideration of the evidence on record and surrounding circumstances and probabilities of the events, particularly on the face of the evidence of Jogesh Saha and Binoy Bhusan Dey, it can be safely presumed that the real transaction was of a loan and document was executed as security for that loan.” 18. In the peculiar facts and circumstances of this case, I am also of the view that the documents, which purported to be out and, out sale, were in fact intended to take effect as security. Sushil Dey is, therefore, legally bound to return the suit land to Chitta Dey on repayment of the loan amount by him. The First appellate Court rightly decreed TS No. 14 of 1988 instituted by Chitta Dey and dismissed TS No.3 of 1986 instituted by Sushil Dey. 19. In the result, the Second Appeals SA No. 6 of 1992 and SA No.7 of 1992 preferred by Sushil Dey are dismissed. 20. In the facts and circumstances of the case, the parties are left to bear their own costs.