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Madhya Pradesh High Court · body

2008 DIGILAW 1462 (MP)

Ramgopal v. Devlal

2008-12-19

P.K.JAISWAL

body2008
ORDER 1. This second appeal has been filed by the defendant No. 1 against the judgment and decree dated 19.11.1998 passed by the District Judge, Datia in Civil Appeal No. 17A/97, whereby the learned Additional Judge affirmed the judgment and decree of the trial Court by which the suit of the respondent No. 1-plaintiffwas decreed. 2. A suit for declaration was filed by the respondent No. 1-plaintiff that he is owner of an area of 0.417 hectare of Survey No. 447 situated at Village Khiriya, Tahsil and District Datia. On 16.6.1989 he mortgaged the said land by executing a document in the form of sale deed (Ex.P.1). In addition to the sale deed executed on 16.6.1989 an agreement was also entered into between the respondent-plaintiff and appellant-defendant on the same date i.e. 16.6.1989. Simultaneously for execution of deed in favour of the respondent-plaintiff, as per the terms of the agreement (Ex.P.2) the respondent shall repay the amount of Rs. 8,000/- within a period of three years from the date of execution of Ex. P.1. As per the terms of the agreement the possession of the property is with the respondent-plaintiff. On 30th December, 1991 the respondent repaid the amount of Rs. 8,000/- along with interest @ 2% per annum as agreed between the parties and total sum of Rs. 11,000/- was paid to the appellant. The appellant after receiving the said amount executed a receipt vide Ex. P. 4. By the said repayment suit property was redeemed. The possession of the land was with the plaintiff but the respondents were not returning the original sale deed and therefore, the respondent-plaintiff filed the suit to be declared as owner and title holder of the suit property, mortgage loan stands redeemed and appellant has no right over the suit property. 3. The appellant filed its written statement denied the averments made in the plaint. 4. The trial Court after appreciating the evidence of Devlal (PW-1) Mansharam (PW-2), Nirpat (PW-3) and Kamta (PW-4) came to the conclusion that the respondent-plaintiff repaid the amount of mortgage vide receipt Ex.P4 and the document in question though in the form of sale deed was a simple mortgage. On the basis of the statement of the father of the appellant (Ex.P.3) recorded in a criminal case, came to the conclusion that the transaction was a mortgage and not a sale. On the basis of the statement of the father of the appellant (Ex.P.3) recorded in a criminal case, came to the conclusion that the transaction was a mortgage and not a sale. The trial Court also considered the statement of appellant (DW-1) and Radhelal (DW-2) and held that the appellant on the basis of Ex.P.1 filed an application for mutation of his name in the revenue records which was rejected as objection was raised by the respondents and on the basis of oral evidence of Nirpat (PW-3) has held that the Ex. P.1 was a mortgage and not a sale deed. It is also held that the respondent plaintiff proved his possession over the land in question. The trial Court held that the plaintiff respondent is owner of an area of 41 RA of Survey No. 441 situated at Village Khiriya and suit property was mortgaged in the form of sale deed. The mortgage money was paid by the respondent plaintiff vide Ex. PA along with interest in time on 30th December, 1991 and the suit land was redeemed. With the above finding the suit of the respondent plaintiff was decreed by the trial Court. 5. In an appeal the Lower Appellate Court after appreciating the document Ex.P.1, Ex.P.2, Ex.P.3 and Ex.P.4 and after considering the statement of independent witnesses Nirpat (P.W. 3), attesting witness of Ex.P4 Mansharam (PW.2) and Kamta (PW. 4) came to the conclusion that the suit property was mortgaged in the form of sale deed, on 16.6.1989. Simultaneously the respondents executed an agreement on 16.6.1989 and as per the terms of agreement mortgage money was paid within a period of three years along with interest on 30.12.1991 and therefore, appellant had no right, title or interest over the suit property. The trial Court rightly decreed the suit for declaration. The Lower Appellate Court affirmed the finding recorded by the trial Court and dismissed the appeal of the appellant. 6. On 18.12.1998 the appeal is admitted on the following substantial questions of law: (i) Whether, on the claim of plaintiff, that the properties are mortgaged, the suit for declaration alone without claiming redemption of mortgage can be decreed? (ii) Whether, sale deed and the deed of re-conveyance made on the same date, are mortgage by conditional sale? 6. On 18.12.1998 the appeal is admitted on the following substantial questions of law: (i) Whether, on the claim of plaintiff, that the properties are mortgaged, the suit for declaration alone without claiming redemption of mortgage can be decreed? (ii) Whether, sale deed and the deed of re-conveyance made on the same date, are mortgage by conditional sale? (iii) Whether, on failure of plaintiff to act punctually according to the terms of contract, the right of repurchase by the plaintiff shall subsist? 7. Here in the present case both the trial Court and the First Appellate Court held that the transaction was mortgage and not a sale. Both the Courts below after appreciating the statements of Devlal (PW. 1), Mansharam (PW. 2), Nirpat (PW. 3) and Kamta (PW. 4) and statements of DW 1 and DW 2 came to the conclusion that all the ingredients of sale with an agreement of repurchase were established by a proving the document Ex. P.2 and Ex. PA. 8. In the present case the recitals made in sale deed categorically show that respondent No.1 expressed his intention to convey the property to the appellant. The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondent No. 1 which was entered into between the parties. In fact, the recitals made in the sale deed categorically show that the respondent No. 1 expressed his intention to convey the property to the appellant. Furthermore, the agreement dated 16.6.1989 (Ex. P.2) was also executed with a condition that suit property was mortgaged by the respondent with the appellant for a consideration of Rs. 8,000/- and he will repay the amount of mortgage money within a period of three months with interest @ 2% per annum. The respondent No. 1 repaid the amount with interest amounting to Rs. 11,000/- on 30.12.1991 and receipt to this was issued by the appellant vide Ex. PA. The mortgage money was paid in time within a period as stated in Ex.P.2. 9. A bare perusal of section 58 (c) of the Transfer of Property Act, 1882 clearly shows that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of retransfer may be evidenced by more than one document. A sale with a condition of retransfer, is not mortgage. It is not a partial transfer. A bare perusal of section 58 (c) of the Transfer of Property Act, 1882 clearly shows that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of retransfer may be evidenced by more than one document. A sale with a condition of retransfer, is not mortgage. It is not a partial transfer. By reason of such a transfer all rights are transferred reserving only a personal right to the seller and such a personal right would be lost, unless the same is exercised within the stipulated time. As held in Chuuchun Jha case, (1955) 1 SCR 174 , 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. Therefore, it is clear that what was involved in this case was the sale followed by a contemporaneous agreement for reconveyance of the property. Such an agreement to recovery is an option contract and the right has to be exercised within the period of limitation provided therefor. Here in the present case the respondent-plaintiff repaid the amount within a period of limitation as per the terms and conditions of the agreement for reconveyance and it was open to him to seek a declaration that amount of mortgage money was repaid by him and document was redeemed and he be declared as owner and title holder of the suit property. Both the Courts below have not committed any legal error in decreeing the suit of the respondent No. 1-plaintiff. 10. Thus, the suit filed by the respondent No.1 plaintiff for declaration alone without claiming redemption of mortgage is maintainable and Courts below have not committed any error in decreeing the suit. The sale deed and the date of reconveyance made on the same date are mortgage by conditional sale and all such payment being made in time within a period of three years as per the agreement Ex.P.2 dated 16.6.1989 the sale shall become void because the suit property was already redeemed and receipt to this effect was issued by the appellant on 30.12.1991 (Ex.P.4). 11. 11. For the above mentioned reasons, the Courts below have not committed any legal error in decreeing the suit of the respondent-plaintiff nor both the Courts below after appreciating the evidence on record have held that the transaction was a mortgage and not a sale. The appellant failed to prove that the transaction was a sale and not a mortgage. The substantial questions of law framed by this Court while admitting this appeal is therefore, answered accordingly. 12. In the result, the appeal filed by the appellant has no substance and is accordingly dismissed with costs.