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Madhya Pradesh High Court · body

2009 DIGILAW 271 (MP)

RAJ KUMAR BAI v. DURGA PRASAD

2009-02-26

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THIS Appeal is directed by the appellant/plaintiff being aggrieved by the judgment and decree dated 3-2-1993 passed by the VIII Addl. District Judge to district Judge, Jabalpur in Civil Appeal No. 15-A/91 dismissing her suit by reversing the judgment and decree dated 15-2-1991 passed by XII Civil Judge Class-II Jabalpur in Civil Original Suit No. 119-A/89 whereby her suit for declaration was decreed against the principal defendant the predecessor of the respondents. ( 2. ) THE facts giving rise to this appeal in short are that the appellant herein filed a suit of declaration against the principal defendant Durga Prasad, the predecessor of the respondents, declaring him to be in possession as an owner of House No. 112 New no. 148, situated at Bhantaliya Ward, jabalpur described in the plaint. As per averments of the plaint, initially, one nanhelal (the predecessor in title of the appellant) being owner of the disputed house was in possession of it. He under need of some money, asked Durga Prasad, the principal defendant to lend him Rs. 300/ -. In response of it, Durga Prasad demanded some security for repayment of such sum, on which, Nanhelal executed a registered sale-deed dated 19-12-1959 of the aforesaid house in favour of principal defendant Durga prasad with the oral understanding that such sale-deed shall not be acted upon between the parties and defendant will not have any right to claim his ownership of such house. The possession of the house was also not delivered to Durga Prasad. On the same day, an agreement to sale of the house to nanhelal, on payment of Rs. 300/- with interest @ 2% p. m. within three years, was executed by Durga Prasad, according to which, Nanhelal is shown to be tenant @ rs. 6/- p. m. in such house. In spite execution of such sale-deed, Nanhelal continued the possession of such house and, his name was remained in the record of the local authority. As per further averments, Nanhelal has paid, the loan amount to Durga Prasad within the aforesaid period of three years. Even after the aforesaid transaction, said nanhelal, as an owner of the property, was regularly paying he tax to the local authorities. As per further averments, Nanhelal has paid, the loan amount to Durga Prasad within the aforesaid period of three years. Even after the aforesaid transaction, said nanhelal, as an owner of the property, was regularly paying he tax to the local authorities. Nanhelal being issueless, in his old age, for his convenience, he kept Rajkumari Bai, wife of his nephew, the appellant, with him, who served him for twenty years till his death. In response of such love and affection, Nanhelal bequeathed the disputed house to her vide registered Will dated 4-11-1985. Nanhelal died on 6-10-1986 and since then, she is in possession of said house as owner but, the predecessor of the respondents, in order to grab such house, got mutated his name in the record of local authorities and sent her, a notice dated 4-5-1987 to vacate the house, on which, she filed the aforesaid suit for declaration. ( 3. ) IN the written statement of principal defendant Durga Prasad, the predecessor of the respondents, it is stated that he purchased the disputed house from Nanhelal vide registered sale-deed dated 19-12-1959 in consideration of Rs. 300/- also got legal possession of it on the same day. He also executed an agreement on the same day stating that Nanhelal is in possession of the house as tenant at the rate of Rs. 6/- p. m. and as per understanding because such rent was at lesser side, therefore, as per their terms, the tax of such house was always paid by Nanhelal to the local authorities. Later, nanhelal, by admitting his tenancy also executed a rent-note dated 2-11-1981 in his favour. It is denied that the aforesaid sale-deed was executed in order to secure the loan amount. It is also denied that it was a loan transaction of Rs. 300/- with interest. Such document was not the ostensible but the same was acted upon. He never permitted Nanhelal to reside in the disputed house as owner. Recording the name in the record of local authorities is not a condition precedent to have the title of the property. It is further pleaded that no amount in repayment was received by him from Nanhelal after the aforesaid transaction. If any money in this regard had been paid by Nanhelal then the same would have been proved by producing the original receipts of such payment. It is further pleaded that no amount in repayment was received by him from Nanhelal after the aforesaid transaction. If any money in this regard had been paid by Nanhelal then the same would have been proved by producing the original receipts of such payment. In addition, it is pleaded that the alleged Will dated 4-11-1985, produced by the appellant, was never executed by Nanhelal with his free consent, the same had got executed from him by taking advantage of his old age with intention to grab the house, hence the same did not confer any right to the appellant. In the available circumstances, no cause of action is available to the appellant and prayer for dismissal of the suit is made. ( 4. ) AFTER framing the issues, the evidence was recorded. On appreciation of the same, the trial Court decreed the suit. On filing the appeal, the same was allowed by setting aside the judgment and decree of the trial court, the suit of the appellant has been dismissed, on which, the plaintiff has come to this Court in second appeal. ( 5. ) THIS appeal was admitted on dated 25-10-1994 on following substantial question of law : -"whether the finding of the lower appellate Court that the transaction between durga Prasad and Nanhelal was that of mortgage by conditional sale, is illegal and it is beyond the pleadings of the parties ?" in pendency of the Appeal, an application I. A. No. 8968/94 under Order 6, Rule 17 of the CPC to amend the plaint for introducing the alternative prayer in the relief clause with respect of redemption of mortgage created by conditional sale has been filed by the appellant on dated 25-10-94. The same is to be considered while disposing of this appeal. ( 6. ) SHRI Anurag Tiwari, learned counsel for the appellant, after taking me through the evidence led by the parties and the documents exhibited on record, said that in the available circumstances, there was no occasion for the appellate Court holding the aforesaid transaction to be the transaction of mortgage by conditional sale. As such, it was simply a loan transaction and to secure re-payment of it, a document (Ex. D/1-C)sale-deed was executed by deceased nanhelal in favour of Durga Prasad, the predecessor of the respondents. On the same day, an agreement to sale of such house (Ex. As such, it was simply a loan transaction and to secure re-payment of it, a document (Ex. D/1-C)sale-deed was executed by deceased nanhelal in favour of Durga Prasad, the predecessor of the respondents. On the same day, an agreement to sale of such house (Ex. P/9) was also executed by Durga Prasad the precedessor of the respondents, in favour of Nanhelal, whereby the tenancy of Nenhelal in the said house from such date at the rate of Rs. 6/- p. m. was also created. On juxtapose reading of these two documents, it reveals that it was only a loan transaction and not the transaction of mortgage by conditional sale. Considering the over-all circumstances, the trial Court decreed the suit with proper approach but the appellate Court, by holding such transaction to be a mortgage by conditional sale, and, in the lack of evidence showing re-payment of the mortgage sum by Nanhelal or on his behalf within the stipulated period, allowed the appeal of the respondents predecessor and set aside the judgment and decree of the trial Court and dismissed the suit under wrong premises. Such approach of the appellate Court is not sustainable. He also placed his reliance on a reported case of this Court in the matter of Kodu Satnama v. Ramdayal, 1986 MPWN (1) Note 114, and prayed for setting aside the decree of the appellate Court by restoring the judgment and decree of the trial court, by allowing this appeal. ( 7. ) NONE appeared on behalf of the respondents to respond the aforesaid arguments. ( 8. ) HAVING heard the counsel at length, in order to consider his submissions, I have gone through the records of the Courts below and also perused the impugned judgments. I am of the view that the aforesaid question may be answered on the basis of the averments of the above-mentioned documents, namely, (a) the sale-deed dated 19-12-1959 (Ex. D/1c) executed by Nanhelal, the predecessor of the appellant, in favour of Durga Prasad, the predecessor of the respondents; (b) an agreement to sale of the house dated 19-12-1959 (Ex. P. P/9c) executed by Durga Prasad in favour of nanhelal stating him to be his tenant and, (c) a rent-note dated 2-11-1981 (Ex. D/2)executed by Nanhelal. ( 9. ) THE sale-deed (Ex. D/1c) contents that in consideration of Rs. P. P/9c) executed by Durga Prasad in favour of nanhelal stating him to be his tenant and, (c) a rent-note dated 2-11-1981 (Ex. D/2)executed by Nanhelal. ( 9. ) THE sale-deed (Ex. D/1c) contents that in consideration of Rs. 300/-, the ownership of the aforesaid house was transferred by Nanhelal to Durga Prasad. According to the language of this document, it appears to be an out-right sale of the immovable property in favour of Durga Prasad. ( 10. ) AS per provision of Section 54 read with Section 8 of the Transfer of Property act, immediately after execution of the aforesaid sale-deed (Ex. D/1-C), the predecessor of the respondents became the title holder of such house and also got symbolic possession of it from Nanhelal. ( 11. ) ON the other hand, after execution of the sale deed, the aforesaid agreement to sale (Ex. P/9) was also executed on the same day by Durga Prasad, the predecessor of the respondents, in favour of Nanhelal. As per averments of it, Durga Prasad accepted nanhelal to be his tenant @ of Rs. 6/- p. m. in such house and also agreed to sell the aforesaid house on payment of Rs. 300/-with stipulated interest within three years from the date of execution of such agreement to Nanhelal on his expenses. Such document has been duly proved by the appellant on record. ( 12. ) A juxtapose reading of aforesaid both the documents, the sale-deed (Ex. D/1-C)and the agreement (Ex. P/9c), they appear to be separate transactions. The sale-deed (Ex. D/1-C) the document of transfer was executed in consideration of Rs. 300/- without mentioning any condition of mortgage, while the agreement (Ex. P/9) stipulates that on payment of Rs. 300/- with agreed interest by Nanhelal (executor of Ex. D/1-C) to durga Prasad (executor of Ex. P/9), within three years, Durga Prasad will execute the registered sale-deed of such house in favour of Nanhelal on his expenses. In such agreement Durga Prasad also accepted Nanhelal to be his tenant @ Rs. 6/- p. m. in such house. Besides this, as per available evidence, the rent note was also executed by nanhelal on 2-11-1981 (Ex. D/2), after more than 21 years from the date of aforesaid sale-deed (Ex. D/1-C ). In such circumstances one undisputed fact has been established on record that after executing the aforesaid sale deed, said Nanhelal became tenant of Durga prasad. Besides this, as per available evidence, the rent note was also executed by nanhelal on 2-11-1981 (Ex. D/2), after more than 21 years from the date of aforesaid sale-deed (Ex. D/1-C ). In such circumstances one undisputed fact has been established on record that after executing the aforesaid sale deed, said Nanhelal became tenant of Durga prasad. ( 13. ) IN order to answer the aforesaid question of law, the Court has to consider the case in view of the provision of Section 58 (c)of the Transfer of Property Act which defines the mortgage by conditional sale. The same reads as under : - "sec. 58. "mortgage". . . . . . . . . . . . . . . . . . (a), (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) Mortgage by conditional sale.- 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 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 affect the sale. ]" In view of the aforesaid definition to hold a transaction to be a mortgage by conditional sale, it is a condition precedent that the condition relating to re-sale of the property must be inserted in the sale-deed itself by which the mortgagor created the mortgage of the property with mortgage. In the lack of such condition in the sale-deed or the document of transfer, on the basis of subsequent or the separate agreement, such transaction could not be treated to be a mortgage by conditional sale. In the lack of such condition in the sale-deed or the document of transfer, on the basis of subsequent or the separate agreement, such transaction could not be treated to be a mortgage by conditional sale. Contrary to such statutory provision, either on the pleadings or the evidence of the parties aforesaid transaction could not be held to be a transaction of mortgage by conditional sale. ( 14. ) THE appellate Court has dismissed the suit by setting aside the judgment and decree of the trial Court holding the aforesaid transaction to be a mortgage by conditional sale and also considering the circumstance that agreed consideration of the agreement to sale (Ex. P/9-C), has not been paid within stipulated period to redeem the property. But such approach of the appellate Court, in view of the aforesaid discussion, does not appear to be sustainable. ( 15. ) MY aforesaid view is also fortified by the decision of the Apex Court in the matter of Mushir Mohammed Khan (dead) by L. Rs. v. Smt. Sajeda Bani, AIR 2000 SC 1085 , in which while considering the aforesaid question, mortgage of conditional sale and the provision of Section 58 of the Transfer of property Act, it was held as under : - "14. Applying the principles laid down above, the two documents read together would not constitute a mortgage as the condition of re-purchase is not contained in the same documents by which the property was sold. Proviso to Clause (c) of Section 58 would operate in the instant case also and the transaction between the parties cannot be held to be a "mortgage by conditional sale. " 15. The High Court, after recording a finding that the transaction cannot be treated as a "mortgage by conditional sale", in view of the Proviso to Clause (c) of Section 58 proceeded to consider the circumstances of the case and came to the conclusion that although the transaction was not a "mortgage by conditional sale", it would definitely be a usufructuary mortgage. The high Court was of the opinion that all the ingredients which go to constitute a usufructuary mortgage were present in the instant case inasmuch as the property was given away to the defendant for a price which was less than its original price or the market value on the date on which the sale was executed in favour of the defendant. The high Court also found that possession of the property in question was symbolically delivered to the defendant and the plaintiff also executed a rent note in favour of the defendant promising to pay rent in respect of the premises in question to the defendant every month. 16. We are unable to accept the reasoning of the High Court. We have already seen above that the three documents read together do not constitute a mortgage or mortgage by conditional sale inasmuch as the condition to repurchase was not contained in the sale deed itself. If the documents cannot be treated as creating a mortgage on account of the prohibition contained in the proviso to Clause (c) of Section 58 it is difficult to accept that these documents would create a mortgage of another kind. The basic fact which has been ignored by the High court is that though in a usufructuary mortgage, the possession has necessarily to be delivered to the mortgagee, an agreement for reconveyance is not obtained from him. While recording a finding on the question of usufructuary mortgage, the High Court did not take into consideration the second document which represented an agreement between the parties that if the amount in question, namely, the price money for which the sale was executed by the plaintiff in favour of the defendant, was returned within the time stipulated by that agreement, the defendant would reconvey the property to the plaintiff. An agreement of reconveyance does not normally constitute part of the transaction by which usufructuary mortgage is created. Where the parties executed three documents almost contemporaneously, all the three documents have to be taken into consideration to find out the true nature of the transaction. " ( 16. ) IN the case cited above, the seller stating himself to be a mortgagor, filed the suit for redemption of the disputed property against the purchaser stating him to be the mortgagee. On consideration, his suit of redemption was dismissed by the trial court and such dismissal was upheld by the appellate Court but in second appeal, the high Court by holding the aforesaid transaction to be usufructuary mortgage, instead the mortgage by conditional sale, by setting aside the decree of both the Courts below decreed the suit. On consideration, his suit of redemption was dismissed by the trial court and such dismissal was upheld by the appellate Court but in second appeal, the high Court by holding the aforesaid transaction to be usufructuary mortgage, instead the mortgage by conditional sale, by setting aside the decree of both the Courts below decreed the suit. The same was challenged before the Apex Court, where on consideration by the aforesaid verdict by setting aside the judgment and decree of the High Court the judgments and decree of Courts below dismissing the suit was restored. It is noted that after holding the aforesaid legal position, the Apex Court, by invoking the extraordinary and inherent jurisdiction has made some observations to extend some relief in favour of such plaintiff. No such relief could be extended to the appellant in the present appeal as this Court is bound to follow the ratio of the Apex Court laid down in the aforesaid case. ( 17. ) IN view of the aforesaid, the case law in the matter of Kodu Satnama v. Ramdayal, 1986 MPWN (1) Note 114, cited on behalf of the appellant, is not helping to the appellant. ( 18. ) IN view of the aforesaid discussion, the framed substantial question of law is answered accordingly holding that the aforesaid transaction of sale was neither the transaction of mortgage by conditional sale nor any other type of the mortgage. It was out-right transaction of sale between nanhelal and Durga Prasad. In such premises, taking into consideration the averment of agreement (Ex. P/9) and rent-note (Ex. D/2), it is held that Nanhelal was in possession of the house as tenant of Durga prasad and the appellate Court has committed error in holding the aforesaid transaction to be mortgage by conditional sale. But in the available circumstances, as discussed above, and taking into consideration the relationship of the parties as tenant and landlord, the approach of the appellate Court in dismissing the suit by allowing the appeal could not be said to be illegal or perverse. ( 19. ) EVEN otherwise, in view of the aforesaid when the appellants and/or her predecessors relation with the respondent has been found to be the relationship of the tenant and landlord, then, in such premises, the suit for declaration holding the title of the appellant contrary to such relationship could not have been decreed by the trial court. ( 19. ) EVEN otherwise, in view of the aforesaid when the appellants and/or her predecessors relation with the respondent has been found to be the relationship of the tenant and landlord, then, in such premises, the suit for declaration holding the title of the appellant contrary to such relationship could not have been decreed by the trial court. In such premises, the ultimate approach of the appellate Court regarding dismissal of the suit by allowing the appeal of the respondent, does not appear to be perverse or contrary to law. ( 20. ) SO far I. A. No. 8968/94 filed by the appellant for impleading the pleadings for redemption of the property from the mortgage, is concerned, the same does not appear to be necessary because firstly, the aforesaid prayer is made at very belated stage, secondly, the application is not supported by any affidavit and lastly because the impugned transaction has not been found to be a transaction of any type of the mortgage. Therefore, the aforesaid I. A. is hereby dismissed. ( 21. ) IN view of the aforesaid, with the modification in the findings of the impugned judgment of the appellate Court, till the aforesaid extent, the approach regarding dismissal of the suit by setting aside the judgment and decree of the trial Court are hereby affirmed, accordingly, this appeal is allowed in part. There shall be no order as to the cost. Decree be drawn up accordingly. Order accordingly.