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2004 DIGILAW 754 (JHR)

Tulsi Devi v. Chandrika Prasad

2004-07-27

VIKRAMADITYA PRASAD

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JUDGMENT Vikramaditya Prasad, J. 1. The substantial question of law to be answered in this appeal preferred by the defendants-appellants is whether the learned Courts below erred in construing the instrument dated 30.12.1968 as a mortgage as a conditional sale. Thus, Ext. B, which is the deed and has been construed by the two Courts below as a deed of mortgage with conditional sale required to be reconstrued. It is the settled principle of law that the interpretation of the document is always a substantial question of law and on this point, both the parties in this appeal have no dispute. Learned counsel for the appellants, in this connection, referred to AIR 2000 SC 3009 . 2. The question aforesaid arose out of the facts that the plaintiff- respondents had filed a suit for redemption of mortgage. The deed Ext. B was admittedly executed by the defendant No. 3, Jwala Prasad Sah, (who did not counter the suit, nor deposed in the case) on 30.12.1968 and a registered in favour of defendant No. 1 for a consideration of Rs. 4500/-. The details of the property is described in the deed itself as also in the plaint. On 30.11.1968, the said Jwala Prasad had transferred by a deed of simple mortgage the northern part of the property in Ext. B to one Balmukund Prasad Choudhary for a mortgage money of Rs. 4300/-. On 14.9.1971, the said Jwala Prasad Sah sold the entire block to the plaintiffs by a registered deed of sale for a valuable consideration of Rs. 14,000/-, which includes the transfer conveyed by Ext. B as also the transfer conveyed by simple mortgage in favour of Balmukund Prasad Choudhary absolutely to the plaintiff-respondents. The sale to plaintiff was made for repayment of antecedent debts including those of mortgage money. Then subsequently the plaintiff issued successive notices dated 5.10.1971 and 23.10.1971 through Advocates to the defendant No. 1 informing her to redeem the mortgage on payment of the mortgage money. The plaintiff No. 1, on 30.12.1971, also went to defendant No. 1 to tender mortgage money but failed to meet defendant No. 1, the plaintiff tendered the money to defendant No. 2, who is the husband of the defendant No. 1, but the defendant No. 2 refused to accept it. The plaintiff No. 1, on 30.12.1971, also went to defendant No. 1 to tender mortgage money but failed to meet defendant No. 1, the plaintiff tendered the money to defendant No. 2, who is the husband of the defendant No. 1, but the defendant No. 2 refused to accept it. Consequently, the plaintiff deposited the entire amount in the Civil Court and thereafter brought the suit for a decree for redemption as also for mesne profit for the period from 3.1.1972 till actual recovery of possession of the suit property and in alternative, a decree for specific performance of contract directing the defendant Nos. 1 and 2 to execute a deed of sale in favour of the plaintiff and on failure of the defendant Nos. 1 and 2 to do so, the Court be pleased to execute and register the sale deed in respect of the suit property in favour of the plaintiff. 3. The plaintiffs suit was contested by the defendant Nos. 1 and 2 by filing two written statements and according to them, the deed dated 30.12.1968 was a deed of sale out and out with a condition of repurchase. As the defendant No. 3 had parted with his right, title and interest in absoluteness in favour of defendant No. 1, the claim of the plaintiff that it was a deed of mortgage with conditional sale was not tenable. It was also pleaded that the consideration money being the market value of the suit land was adequate at the relevant time and sufficient consideration and there was no relationship of debtor and creditor created by that deed and there was no postponement in acquisition of the title in the disputed property by the dependent No. 3 and nomenclature of the deed in question was misconceived in view of the clear, certain and definite recitals and thus, the suit was prayed to be dismissed. The claim of the plaintiff that the defendant No. 3 had purchased the judicial stamp for executing the deed was denied. It was also pleaded that the defendant No. 1, owner was in possession through her, tenant from the date of the deed. As such on 14.9.1971, the defendant No. 3 did not convey any title or interest to the plaintiff of the suit property for the alleged consideration. It was also pleaded that the defendant No. 1, owner was in possession through her, tenant from the date of the deed. As such on 14.9.1971, the defendant No. 3 did not convey any title or interest to the plaintiff of the suit property for the alleged consideration. It was also pleaded that the covenant to obtain re-conveyance on the appointed day from the defendant No. 1 was a personal right of the defendant No. 3, as such it was inalienable in favour of third person. The claim of notice for redeeming or tendering mortgage money to defendant No. 1 or 2 was denied and it was also pleaded by the contesting defendants that the right of the defendant No. 3 extinguished after the appointed date i.e., after 30.12.1971. 4. Learned trial Court in its judgment construed the different phrases occurring in Ext, B such as Mokir, which means Seller, Mokiraley, which means purchaser, Jaidad Zere saman which means consideration amount, Jaidad Shai Mobaiya which means property to be sold, Bagair Kiya Bikari Shai Mobatya which means without selling. The property being sold, Kharidne Ko Amada Huai Aur Kharidana Manjoor Kiai which means became ready to purchase and accepted to purchase and Wasike Haza Ke becha aw Zaresamman Diya which means sold and gave the consideration amount. The document is described as Taksukh Makphula. In place of consideration amount, it is written as Zare Makphul and Zere Samman and the property to be mortgaged is written as Saimakphula. Then the learned trial Court also on the basis of oral and documentary evidence adduced before it found that scriber of the deed admitted that he had written the deed of Baibulbafa (Ext. B) and though the area through this deed was half of the area that was given to one Balmukund Prasad Choudhary by a mortgage deed but the consideration of the mortgage deed was Rs. 4300/- whereas the total consideration amount of the land, (whole Ext, B), was only Rs. B) and though the area through this deed was half of the area that was given to one Balmukund Prasad Choudhary by a mortgage deed but the consideration of the mortgage deed was Rs. 4300/- whereas the total consideration amount of the land, (whole Ext, B), was only Rs. 4500/- and these two transactions had taken place during an interval of one month and thus, the learned trial Court found that the consideration amount of this deed is much less than what could be the consideration amount of the mortgage deed in favour of Balmukund Prasad Choudhary, It also found that during the relevant period of transaction, according to PWs the valuation of the suit property would have been Rs. 14,000/- to Rs. 15000/- and that of the shop mortgaged to Balmukund Prasad Choudhary Rs. 7,000/- to 8,000/-. DW 7 had said that at the time of the relevant transfer, the valuation of the suit property was Rs. 5,000/-and considering those evidence, the trial Court found that there would not have been so much agreement in the price if actually the transaction dated 30.12.1968 would have been out and out a sale. Trial Court also found that the stamp paper was purchased by Jwala Prasad Choudhary, which is usually done in the case of mortgage. Then construing the documents and also noticing these attending circumstances, the trial Court came to a finding that the Ext. B was a deed of mortgage with conditional sale and not a sale with condition to repurchase and consequently decreed the suit. 5. The first appellate Court, in fact with some changes here and there, adopted the same manner of construing the document and other attending circumstances in reaching to the same conclusion and came to the same finding and confirmed the trial Court judgment and decree. 6. In order to find the intention of the parties from the phraseologies used in the deed Ext. B, it will be wise to examine this recital as it was scribed from its inception to its end. The sequence is that :--(i) the document is titled as Baibulbafa, (ii) the consideration amount is Rs. 6. In order to find the intention of the parties from the phraseologies used in the deed Ext. B, it will be wise to examine this recital as it was scribed from its inception to its end. The sequence is that :--(i) the document is titled as Baibulbafa, (ii) the consideration amount is Rs. 4500/- and the word used is Zere Suman, which means price of the property, (iii) the description of the property, (iv) the mariner in which the transferor got the title and possession over the property, (v) the purposes for transfer; it states that for raising capital (Baste Kerne Punji) for shop, domestic expenses (Kharch Kernjdari) and for repaying the debts to some creditors, (vi) in order to meet the aforesaid requirements, without selling (Bageir Kiya Bikri) the land, the arrangement of the money is impossible. Therefore, for the purpose of selling (Nisbat Kerne Bikari) the land, the transferor contacted some persons including the transferee, (vii) The transferee has his cloth shop in the land under transfer from before and he, became ready to purchase the land for Rs. 4500/-, (viii) This amount is reasonable at the relevant time (Wajib Hain) and no one else was ready to give such consideration (Zere Saman), (ix) Consequently, in his complete sense without any influence or duress, (x) two portions of the shop (Kiwtap) along with the land Chabar bandi right Haquiwat and all the rights, Haquiwat Murifer that will accrue in future is sold (becha) and received the price (Zere Saman) in cash and nothing is left unpaid of the Zere Saman. Now in the capacity of purchaser (Khariddar) (xi) he was given possession and the purchaser (Khariddar) himself or his heirs (Barisam) may have possession or may rent it out and the deed of any such Kadulbad land came into existence and no deed is required for recovery of Zere Saman and (xii) after completion of the period (Maiyad) and that too till sale having become absolute (Mustahakam) the land should be kept in its existing condition (Muzada Halat Me Rakhe) (Hayeya) demolish it and reconstruct it then the vendor will have no objection (xiii) The transferor has also requested that one time be given (Ek Wakt Diya Jaiye), if he pays the entire Zere Saman to the purchaser in one installment, then the purchaser will execute a sale deed in favour of the transferor and the vendee will accept it and the time fixed is 31st December, 1971 and he will remove his possession (Dekhal Kobjha) from that land and if by that date Zere Saman is not repaid, then in that event this deed, Ext. B, shall become absolute for ever (xiv) In the margin of the deed, on its the first page, the transferor writes in his own pen that he has executed a deed of Baibulbafa in respect of two parts of the shop, (xv) The stamp of the deed has been purchased by the transferor, (xvi) in presence of the husband of the transferee, the amount has been received by the transferor. 7. Now I proceed to analyze the meaning of all these to probe the intention behind the deed, (i) Title of the deed--the title of the deed is not decisive for determination of the question, but nevertheless as it is a part of the document, it has its own bearing and it has to be seen whether the recitals in the deed conform to the title of deed. If they do so, this title will itself an additional circumstance to show the intention of the parties; if not, then the matter will be otherwise. If they do so, this title will itself an additional circumstance to show the intention of the parties; if not, then the matter will be otherwise. Baibulbafa was a device introduced by Mahomedan lawyers to evade the precepts of their religions against lending money at interest and in grab of sale the purchaser enjoys usufruct in lieu of interest 1911 ILR (33) 585, (ii) The words Khariddar, Zere Suman, Bekri, Kharidene, Becha, Zere Saman Paya, Dhakhal Diya are the words which have been specifically chosen by the learned counsel for the appellant to establish the intention of the transferor behind the deed and it has been argued that all these words are indicia of the sale and not of a mortgage and therefore, the document is out and out a sale. He also referred to meaning of Bat Bul Wafa given in Mitras Legal Dictionary to strengthen his argument. It has also been argued by the learned counsel for the appellants that if two parts of the document are in conflict, then the earlier part of the document should be given effect and the recitals in the latter part should be ignored. Thus, it has been argued that in the first part, there is clear intention of sale, though in the second part there is an agreement for delivery of possession and the sale becoming absolute, if the consideration money was not paid back by the stipulated time. Learned counsel for the appellants has also referred to the decisions reported in AIR 1954 SC 345 , AIR 1959 SC 24 , AIR 1977 Patna 246, AIR 1992 SC 1236 and AIR 1967 SC 890. 8. Learned counsel for the respondents, to the contrary, has argued that as the condition that the sale shall become absolute only in the event of the failure on the part of the transferor is in the same document and not in two documents--one of sale and the other for repurchase, contemporaneously executed, so this term in one and same document, is in accordance with the requirement as contained in Section 58(c) of the T.P. Act. He emphasized on the proviso appended to Section 58(c) of the T.P. Act. 9. He emphasized on the proviso appended to Section 58(c) of the T.P. Act. 9. The sequence in which the document, which has been found, has been ascribed clearly indicates that there is no two parts in the document but every thing is contained as if written in one stroke of pen, even there are no two separate paragraphs, rather there are certain over-lappings. Thus, item (xi) (supra para 6) is followed by the item (xii). By item, (xi), delivery of possession is given and by item (xii), a term is imposed that till the completion of period (Maiyad) and unless the sale becomes absolute, the purchaser shall not change the feature of the property. These two recitals in quick succession, are very important to find the soul within the body. 10. These two recitals go to show that possession was though given but the exercise of propriety rights over the transferred property was restricted till the completion of Maiyad (period). In subsequent recital is in latter part only that Maiyad (period) has been fixed. Thus, the above two recitals are not in conflict with the latter fixing of the period and thus, do not" constitute any disharmony. Thus, what is stipulated is explained in latter part. The phrase "Baje Rahe" which means for removing ambiguity has been used before fixing the period of returning the money. Thus, the argument of the learned counsel for the appellants that there is conflict between the first part and the latter part, so latter part be ignored, has no leg to stand and accordingly is not accepted. 11. The items (xi) and (xii) require further consideration. It has to be remembered that the transferee was already in possession of the land and was holding a cloth shop therein, which is recites in the deed itself and thus, he was already in possession thereof. Thus, he was already a tenant therein, so by the impugned deed, he was symbolically given possession of the said land with only added advantage that he can live himself or induct tenant thereon but not more than that till the sale became absolute. It is not that a property already in possession of the transferee cannot be transferred to him by sale. But in such a situation, the transferee is expected to be vested with residuary ownership rights more than the possession which was already with him. It is not that a property already in possession of the transferee cannot be transferred to him by sale. But in such a situation, the transferee is expected to be vested with residuary ownership rights more than the possession which was already with him. This is not the case here. Practically the transferee does not receive under this deed more than what he already had. 12. There is no stipulation in the deed that at the time of repurchase higher consideration shall be paid by the transferor. What does it mean? During this period of three years, the transferee though has been allowed to live in the transferred property and even permitted to induct tenant, but he has not to pay anything to the seller. This clearly indicates that during this period of three years, the usufruct of the land in form of rent to be paid on his own behalf (as he was already a tenant) or rent received by the purchaser from other tenant who he inducts is appropriated by himself. It is clear therefore that the consideration was in fact a loan and the rent not paid/appropriated by transferee was interest and the property sold was a security, so on payment of the same, consideration purchaser had to reconvey it. Thus, a relationship of debtor and creditor subsisted which is the basic feature of the mortgage. 13. The argument of the learned counsel for the respondents is that words used reflect sale have its importance because in an ostensible sale, which is a feature of mortgage with conditional sale, simply because it is an ostensible sale, such words are bound to be used; otherwise there would be no ostensibility and nothing would be required to be construed. This argument is sound. 14. The recitals used, the words used therein and the title of a document depends on the skill of the scribe and may not convey the real intention. In the circumstances, when the transferor, while executing the deed in his own pen, writes in margin of the first page of the deed that he was executing a deed of Bai Bul Wafa, then he exhibits his real intention despite the words used in recital. In the circumstances, when the transferor, while executing the deed in his own pen, writes in margin of the first page of the deed that he was executing a deed of Bai Bul Wafa, then he exhibits his real intention despite the words used in recital. Mitra in his Transfer of Property Act clearly writes that the Bai Bul Wafa is used in vernacular for a mortgage with conditional sale in U.P. and C.P. But to my experience, such nomenclature for such purpose is also in vogue in this part of the country. Thus, the mere reliance on the dictionary meaning of the phrase in Mitras Dictionary will not be proper, particularly when this meaning has been borrowed from the decision 1911 ILR (33) 585, in which the real character of Bai Bul Wafa was examined. Had the transfer on being an illiterate person, putting his LTI then it could have been argued that he did not understand what he was executing, but the case here is just reverse. The provision appended to the Clause 58(c) of the T.P. Act has not been displaced. 15. Though the Courts below, while construing the document, took external aid coming in evidence, but on the construction of the document (Ext. B) on its face, it is held that this document is a deed of mortgage with conditional sale and not an out and out sale with condition to repurchase. In the circumstance, I find no reason to interfere with the impugned judgments, which are well discussed both on facts and law. The substantial question of law framed is answered accordingly and against the appellant. The second appeal is dismissed without cost.