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Allahabad High Court · body

2001 DIGILAW 253 (ALL)

ROOP LAL AND SHRIPAL v. BRIJNATH SINGH

2001-03-16

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE suit for specific performance of contract of sale was filed by the respondent against the appellants which was dismissed by the trial court. The respondent filed first appeal No. 5 of 1975 which have been allowed by the Judgment and order dated 12. 3. 1976 by Civil Judge. Etawah and the suit for specific performance of contract of sale has been decreed. Aggrieved by it, the present appeal has been preferred. ( 2 ) THE facts of the case are very simple and the dispute lies in a very small compass- The plaintiff-respondent was bhumidhar of plot Nos. 106-A and 106-B of Village Zhaipur district etawah. He sold those plots by deed dated 29. 4. 1971 for a consideration of Rs. 1,500 and also delivered possession. There was a condition in the deed regarding reconveyance of the property in favour of the plaintiff within two years on payment of same consideration. It was alleged by the plaintiff-respondent that he was ready and willing to perform his part of the contract, but the appellants refused to reconvey the property and hence the suit was filed. ( 3 ) THE suit was contested by the appellants. Their case is that the suit for specific performance of contract of sale is not maintainable as there was no agreement to sale. That the deed is mortgage with conditional sale. ( 4 ) THE Trial court dismissed the suit. However, the first appellate court has allowed the appeal and decreed the suit for specific performance of contract of sale on the finding that the deed is a sale deed with agreement for reconveyance. Aggrieved by it, the present appeal has been preferred. ( 5 ) I have heard Sri Ashutosh Srivastava, learned counsel for the appellants and Sri Prakash krishna, learned counsel for the respondent and have perused the entire documents. ( 6 ) THE execution of the deed is admitted. In this case from the arguments of the learned counsel for the parties, the only that arises for decision in this appeal is whether the deed dated 29. 4. 1971 which is a registered deed is sale deed with an agreement of reconveyance or is a mortgage by conditional sale. ( 6 ) THE execution of the deed is admitted. In this case from the arguments of the learned counsel for the parties, the only that arises for decision in this appeal is whether the deed dated 29. 4. 1971 which is a registered deed is sale deed with an agreement of reconveyance or is a mortgage by conditional sale. ( 7 ) THE argument of the learned counsel for the appellants is that the condition of repurchase has been mentioned in the deed itself and, therefore, in accordance with the proviso to Section 58 (c)of Transfer of Property Act this deed is mortgage deed. ( 8 ) LEARNED counsel for the appellant has placed reliance on a Full Bench decision of this Court on this point in Debi Singh and others v. Jagdish Saran Singh and others, AIR 1952 All 716 . It was observed that if the sale deed contains one of the conditions mentioned in Section 58 (c), the transfer unnecessarily amounts to mortgage by a conditional sale in all cases irrespective of intention of parties. It was further observed that the Legislature intended to lay down a statutory test by which intention is to be gathered in order to suppress the prevailing mischief. In the amendment, two negatives are used. They have not merely the negative effect of declaring that if the condition is embodied in a separate document, the transaction is not a mortgage by conditional sale, but also have the positive effect of saying by necessary implication that a transaction shall be a mortgage by conditional sale if the condition is embodied in the same document. ( 9 ) CERTAIN other decisions of the Honble Supreme Court has also been referred to : First case is p. L. Bapuswami v. Pattav Gounder, AIR 1966 SC 902 . In the cited case, the condition of transfer was embodied in the document itself. After considering this fact and certain other circumstances, the Apex Court has held that it is mortgage by conditional sale and not a sale with condition of retransfer. The other decision of the Apex Court referred to is in the case of vidhyadhar v. Manikrao and another, 1999 (3) SCC 573 . It was observed that whether transaction was an out and out sale or a mortgage, the intention of the parties to the deed is a real test. The other decision of the Apex Court referred to is in the case of vidhyadhar v. Manikrao and another, 1999 (3) SCC 573 . It was observed that whether transaction was an out and out sale or a mortgage, the intention of the parties to the deed is a real test. In this case, the deed was executed for Rs. 1,500 with stipulation therein that if the entire amount of Rs. 1,500 is returned to defendant No. 1 before the specified date, the property would be reconveyed. It was held that the deed must be treated as a mortgage by a conditional sale. The other case referred to by the learned counsel is Mushir Mohammed Khan v. Sajeda Bano and others, 2000 (3) SCC 536 . In this case, there were two separate documents a sale deed and agreement of reconveyance. It was observed that reading together would not constitute a mortgage as the proviso enjoins that the document which purports to effect the sale must itself contain the condition of reconveyance in order to constitute mortgage by conditional sale. Hence, the plaintiffs suit for redemption was liable to be dismissed. ( 10 ) AS against this, learned counsel for the respondents has referred to the decision of Apex court in Tamboli Ramanlal Motilal v. Ghanchhi Chimanlal Keshavlal, AIR 1992 SC 1236 . In this case, the condition of reconveyance was mentioned in the document itself. The contents of the deed were considered in detail and it was found that the clauses of the deed are consistent with the express intention of making the transaction a conditional sale with option to repurchase. It was held that the document is not a mortgage by conditional sale. ( 11 ) IT was observed that "having regard to the nice distinction between a mortgage by conditional sale and a sale with an option to repurchase, one should be guided by the terms of the document alone without much help from the case law. Of course, cases could be referred for the purposes of interpreting a particular clause to gather the intention. It is also settled law that nomenclature of the document is, hardly conclusive and much importance cannot be attached to the nomenclature alone since it is the real intention which requires to be gathered. " ( 12 ) I have gone through the above decisions. It is also settled law that nomenclature of the document is, hardly conclusive and much importance cannot be attached to the nomenclature alone since it is the real intention which requires to be gathered. " ( 12 ) I have gone through the above decisions. The Full Bench of this Court in the case of Debi singh (supra) has clearly held that if the condition is embodied in the document itself, the deed is a mortgage deed. However, the thrust of the decisions of the Apex Court is that the intention of the parties is to be gathered from the contents and clauses of the deed. After considering the clauses of the deed in the case of Tamboli Ramanlal Motilal v. Ghanchhi Chimanlal Keshavlal (supra), the deed was not held to be a mortgage deed though the condition of repurchase was embodied in the deed itself. As against this in the cases referred to by the learned counsel for the appellant, the intention of the parties was considered and in all cases where the condition was embodied in the deed itself, the document was held to be a mortgage with conditional sale. ( 13 ) IN the case of Tamboli Ramanlal Motilal v. Ghanchhi Chimanlal Keshavlal (supra), the clauses of the deed have been mentioned in extenso by the Apex Court. All these conditions does not exist in the present deed. ( 14 ) LEARNED counsel for the respondents has also referred to the present deed and contended that the real intention of the parties was to execute a sale deed with a condition of repurchase. It is contended that the possession was also delivered and the entire rights were transferred. Right of mutation was also given and the only condition is the repayment of the sale consideration of Rs. 1,500 within a period of two years. That it is also mentioned that the market value of the property is Rs. 1,500 and, therefore, it appears that the deed was not for securing loan but the deed is out and out sale with condition of repurchase. That therefore, the suit has rightly been decreed. ( 15 ) IT appears that the Apex Court in the case of Tamboli Ramanlal Motilal v. Ghanchhi chimanlal Keshavlal (supra) has held that the deed is a sale deed with condition of reconveyance on the facts of that case. That therefore, the suit has rightly been decreed. ( 15 ) IT appears that the Apex Court in the case of Tamboli Ramanlal Motilal v. Ghanchhi chimanlal Keshavlal (supra) has held that the deed is a sale deed with condition of reconveyance on the facts of that case. However, on the basis of the clauses of the deed in question, it cannot be held to be a sale deed with condition of reconveyance. The cases referred to by the learned counsel for the appellant are more approximate to the facts of the present case. On consideration of the contents of the documents and the provision of Section 58 (c ). Transfer of Property Act, I am of the view that the deed is mortgage with conditional sale. If it is so, the suit for reconveyance is not maintainable. ( 16 ) THE appeal is accordingly allowed and the judgment of the first appellate court is quashed and that of trial court is restored. The suit of the plaintiff-respondent shall stand dismissed. However, in the circumstances of the case I direct the parties to bear their own costs of all the courts. .