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2010 DIGILAW 898 (CAL)

Rekha Rani Das Bairagi v. Amar Kumar Das Bairagi

2010-07-30

TARUN KUMAR GUPTA

body2010
Judgment :- Tarun Kumar Gupta, J:- This Appeal is directed against judgment dated 30th March 1996 passed by S. K. Gupta, Additional District Judge, 6th Court, Alipore in Misc. Appeal No.323 of 1991 thereby affirming the order dated 10th of August, 1991 passed by Sri A.K. Das, Assistant District Judge, 7th Court, Alipore in Misc. Case No.18 of 1991. The above case has a long drawn history which may be summed up as follows:- The Title Suit No.54 of 1948 was filed by the third party purchaser against the predecessor in interest of the present appellants, of the respondents and others for partition in the Court of learned Subordinate Judge, 7th Court at Alipore. Kishori Mohan Das Bairagi (Defendant No.4) predecessor in interest of the present appellants by a registered deed of conveyance dated 21st September, 1955 sold his share to Jatindranath Das Bairagi (Defendant No.2) the predecessor in interest of the present respondents. Said Jatindranath also executed a ‘Ekrarnama’ for reconveyance on the same date. On 19th September, 1961 final decree for partition was passed by 7th Court of Subordinate Judge at Alipore in Title Suit No.54 of 1948. One appeal being F.A. No.685 of 1966 was preferred in the Hon’ble High Court against decree dated 19th September, 1961. During pendency of hearing of said appeal three applications under Section 4 of Partition Act were filed in Hon’ble Court by three groups of co-sharers. On 17th February, 1989 Kishori Mohan Das Bairagi filed in the Hon’ble High Court an application under Section 37/38 of Bengal Money Lenders Act and later on it was filed in the Court of learned Munsif, 3rd Court, Alipore being Misc. Case No.9 of 1990 for reconveyance of property sold by him on 21st September, 1995 in favour of Jatindranath Das Bairagi claming said transaction as a loan transaction and not out and out sale. On 30th January, 1991 the Hon’ble Division Bench comprising Hon’ble Mr. Justice Mukhul Gopal Mukherjee and Hon’ble Mr. Justice D.K. Basu were pleased to allow some objections against the Commissioner’s report, kept the appeal being F.A. No.685 of 1966 part-heard and pending and sent the case to the Trial Court with a direction to dispose of three applications under Section 4 of the Partition Act and also to adjudicate the respective claims of the parties in the application under Section 37 /38 of Bengal Money Lenders’ Act. Accordingly Misc. Accordingly Misc. Case No.9 of 1990 under Section 37 /38 of Bengal Money Lenders Act was transferred to the 7th Court of Assistant District Judge at Alipore for being heard analogously with Title Suit No.54 of 1948 and such Misc. Case was renumbered as Misc. Case No.18 of 1991. After contested hearing Misc. Case No.18 of 1991 was dismissed by the learned 7th Court of Assistant District Judge at Alipore vide Order dated 10.08.1991. In 1991 Misc. Appeal being No.323 of 1991 was preferred against the said order of dismissal dated 10th August, 1991. On 28th April, 1999 the Hon’ble Division Bench was pleased to affirm the judgment and final decree passed on 19th September, 1961. Misc. Appeal No.323 of 1991 was dismissed on contest by Additional District Judge, 6th Court Alipore vide judgment dated 30.03.1996 against which the present S.M.A. No.1 of 1997 has been filed in this Court. The case of the appellants is that their predecessor in interest i.e., Kishori Mohan Das Bairagi sold his share of ancestral properties on 21.9.1955 by executing one sale deed in favour of his brother Jatindranath Das Bairagi who on the same date executed an ‘ekrarnama’ in favour of Kishori Mohan Das Bairagi and that entire transaction was a loan transaction and that ‘Kobala’ dated 21.09.1955 was not an out and out sale deed and that both the sale deed and ‘ekrarnama’ were in the custody of the lender i.e., Jatindranath and that the amount of loan was Rs.2,800/- and that there was part repayment of said loan by way of payment of Rs.500/- on 07.09.1957 and Rs.725/- on 29.09.1958 and the remaining sum due to Jatindra was adjusted by making adjustment of the shares of the petitioners in respect of the rents realized from the tenants in the ancestral house of the parties and that in spite of assurance Jatindranath did not sit for accounting and ultimately he died on 17.01.1966 leaving behind his minor sons and that his minor sons i.e., present respondents on attaining majority did not also execute any deed of reconveyance though gave assurance and accordingly the case was filed under Section 37 /38 Bengal Money Lenders Act in 1990. Learned Advocate Mr. Learned Advocate Mr. Sabyasachi Bhattacharya assisted by Learned Advocates Chandradoy Roy and Miss Shohini Bhattacharya for the appellants has submitted that both the lower Courts failed to take note of the vital circumstances as revealed from the evidence on record namely noting of taking loan by Kishori Mohan in the ‘Kobala’ itself executed by Kishori Mohan in favour of Jatindranath, execution of ‘Ekrarnama’ on the same day by Jatindra Mohan in favour of Kishori Mohan with a promise of reconveyance of the same property for same amount of consideration money if Kishori Mohan pays said consideration money within 3 years, Kishori Mohan’s continuous possession of said property and Kishori Mohan’s payment of portion of loan to Jatindranath by withdrawal from post office savings. According to him judgment of learned Appellate Court suffered from perversities on that score and that it was a fit case for interference by the High Court under Section 100 C.P.C. Learned Advocate Mr. Anami Sikdar for the respondent No.3 on the other hand has submitted that impugned deed dated 21st September, 1955 executed by Kishori Mohan in favour of Jatindranath was found to be an out and out sale deed by both the Lower Courts by their concurrent findings and that it was essentially a question of fact and that no substantial question of law was involved in this case and hence the Second Appeal was not at all maintainable on that score alone. In this connection he has referred a case law reported in 2006 (3) Supreme 631 (Gurdev Kaur and Others v. Kaki and Others) to impress upon this Court that unless a substantial question of law is involved Second Appeal cannot be entertained by the High Court invoking Section 100 C.P.C. Miss Nandita Ghosh, learned advocate for respondent No.1 and 2 echoed the submissions of learned Sikdar. Mr. Bhattacharya learned Advocate for the appellants has referred a case law reported in (2001) 3 SCC page 179 (Santosh Hazari v. Purushottam Tiwari (Deceased) by Legal Representatives) wherein it was held “Where a doubt arises as to whether First Appellate Court has carried out its function correctly, such doubt itself may give rise to a substantial question of law justifying an interference by High Court under Section 100 C.P.C.” In this connection he has also referred a case law reported in (2001) 4 SCC page 262 (Kulwant Kaur and Ors. V. Gurdial Singh Mann (dead) by Legal Representatives and Ors.) wherein it was held “In a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue under Section 100 C.P.C.” In this connection he has further referred a case law reported in 1995 Supp (1) Supreme Court Cases 418 (Mohd. Yunus v. Gurubux Singh) wherein the Hon’ble Court held “Even in the cases of concurrent findings of facts if it can be shown that there was gross-misappreciation of evidence by lower Courts going to the root of the matter, then High Court can certainly interfere under Section 100 C. P.C.” From the above submissions of learned Advocates of both sides as well as the case laws referred by them it appears that in case of gross misappreciation of evidence by lower Courts going to the root of the matter High Court can interfere in the second appeal. Mr. Sikdar learned Advocate for respondent No.3 has further submitted that in the case in hand no specific point of law was formulated at the time of admission of the appeal and that it is also a ground for dismissal of this appeal. It is true that at the time of admission of the second appeal there was a cryptic order that this appeal will be heard on the ground stated in the memo of appeal and that no specific ground was framed therein. But it is now settled principal of law that even if no specific point of law was formulated at the time of admission of second appeal by saying that the appeal will be heard on the ground stated in the memo of appeal that does not vitiate the second appeal. This Court has all the power to frame the issue at any stage of the hearing and may also add to the issues earlier framed at the time of admission. This Court has all the power to frame the issue at any stage of the hearing and may also add to the issues earlier framed at the time of admission. From the submission of learned Advocates of both sides as well as materials on record it appears that the main issue in this second appeal is “whether learned First Appellate Court came to a perverse finding by not considering the registered deed of conveyance dated 21.09.1955 executed by Kishori Mohan Das Bairagi selling his share in favour of Jatindranath Das Bairagi as a loan transaction and not an out and out sale deed in view of ‘ekrarnama’ of the same date executed by Jatindranath in favour of Kishori Mohan and other circumstances as came out from evidence.” Mr. Bhattacharya learned Advocate for the appellants has submitted that under Section 58(c) of the Transfer of Property Act dealing with mortgage by condition of sale it was stated in the proviso clause that no such transaction shall be deemed to be a mortgage, unless the condition embodied in the document which affects or purports to affect the sale. According to him the proviso of Section 58(c) of the Transfer of Property Act has been overridden by Section 37A of Bengal Money Lenders Act, 1940 wherein it was specifically stated that in the case wherein a loan is secured by a mortgage and the mortgagor ostensibly sells the mortgaged property on any of the conditions specified in sub-Section (c) of Section 58 of the Transfer of Property Act, 1882 then, notwithstanding to the contrary contained in the proviso to the said sub-section, the transaction shall always be deemed to be a mortgage by condition of sale and the mortgagee by condition of sale for the purpose of the said sub-Section. In this connection he has referred a case law reported in 1972 CLJ page 130 (Abdul Rahim v. Kamalapati Mukherjee) wherein it was specifically stated that Section 37A of the Bengal Money Lenders Act 1940 which came by way of amendment in 1965, applies to transactions which took place even before such amendments. In this connection he has referred a case law reported in 1972 CLJ page 130 (Abdul Rahim v. Kamalapati Mukherjee) wherein it was specifically stated that Section 37A of the Bengal Money Lenders Act 1940 which came by way of amendment in 1965, applies to transactions which took place even before such amendments. According to him, though the deed of conveyance was executed by Kishori Mohan in favour of Jatindranath on 21st September, 1955 i.e., prior to the amendment of Section 37A of the Bengal Money Lenders Act, 1940 in 1965 still the said Section 37A has application to this transaction in view of aforesaid judgment. The aforesaid proposition of law is not disputed. In order to establish that the disputed deed of conveyance dated 21st September, 1955 executed by Kishori Mohan in favour of Jatindranath was a deed of mortgage by way of ostensible sale deed the onus was heavily upon the appellants. The question whether a given transaction is a loan in substance or a sale outright with a condition of repurchase depends on the facts of each case. In such a case the intention of the parties is the determining factor. The following are the tests on which lies the nature and character of such a transaction: (1) the existence of a debt. (2) the period of payment (3) the possession of the property (4) stipulation for payment of interest, if any, (5) the price offer being market price or not. Appellants’ predecessor Kishori Mohan while filing the original Misc. The following are the tests on which lies the nature and character of such a transaction: (1) the existence of a debt. (2) the period of payment (3) the possession of the property (4) stipulation for payment of interest, if any, (5) the price offer being market price or not. Appellants’ predecessor Kishori Mohan while filing the original Misc. Case under Bengal Money Lenders Act in 1990 took the plea that the deed of conveyance dated 21st September, 1955 in favour of his brother Jatindranath was an ostensible sale deed and a loan transaction as on the same date Jatindranath executed an ‘ekrarnama’ for reconveyance of the said property for same consideration money if Kishori Mohan pays the amount without any interest within three years and he paid a portion of the said consideration money to Jatindranath after withdrawing his money from post office savings account and that Jatindranath adjusted the remaining amount by taking shares of the petitioner in respect of rents realized from the tenants in the paternal house of the petitioner and original lender and that the transaction being a loan transaction petitioner Kishori Mohan remained all along in the possession of the said property and that Jatindranath deferred the execution of deed of reconveyance on different pretexts and ultimately died in 1966 leaving behind his minor sons i.e. present opposite parties and that opposite parties also after attaining majority did not execute deed of reconveyance in spite of the assurance, resulting filing of said specific case under Section 38 of Bengal Money Lenders Act in 1990. In the Trial Court the heirs of Jatindranath being O.P.s. took the specific plea that the deed of 1955 executed by Surendranath Das and Kishori Mohan in favour of Jatindranath was an out and out sale deed and that Jatindranath was never the money lender and that after the execution of said deed Jatindranath came into possession of the same but at the request of the petitioner being his brother he permitted to allow him to reside in the said property as a licensee and that at his request Jatindranath also executed an agreement in favour of Kishori Mohan wherein he agreed to reconvey the property to Kishori Mohan if he purchased the same by paying the same consideration money within three years from 21.09.1955 and that original petitioner Kishori Mohan did not repay the consideration money within stipulated three years and that the suit was liable to be dismissed. It came out from the averments of the deed in question that said deed of 1955 transferring the share of Kishori Mohan in favour of Jatindranath was executed jointly by Kishori Mohan and one Surendranath Das and that Kishori Mohan already sold the said property i.e., his share of ancestral property to Surendranath Das against consideration money which was applied by him to meet the decreetal dues of one Kedar Gupta who attached the share of Kishori Mohan in execution of a decree. As such it is palpable not only from the deed in question but also from the evidence of Kishori Mohan that at the time of execution of said conveyance on 21st September, 1955 in favour of Jatindranath, Kishori Mohan had no saleable right or interest in the said property and rather Surendranath Das who purchased the same from Kishori Mohan sold the same to Jatindranath. As Kishori Mohan had no saleable interest in the said property on 21st September, 1955 he has no right to ostensibly mortgage said property or to claim said transaction as a loan transaction. It is true that on the same date Jatindranath executed an ‘ekrarnama’ for reconveyance of the same property if within three years Kishori Mohan repaid the same amount of consideration money to him. It is true that on the same date Jatindranath executed an ‘ekrarnama’ for reconveyance of the same property if within three years Kishori Mohan repaid the same amount of consideration money to him. In this connection it is pertinent to note that relation between Kishori Mohan and Jatindranath was very cordial being brothers and that even after death of Jatindranath in 1966 Kishori Mohan acted as a guardian of the minor children of Jatindranath, the opposite parties of the original suit. During evidence in the Trial Court Kishori Mohan took the plea that the original sale deed and ‘ekrarnama’ both dated 21.09.1955 were in the custody of Jatindranath and that repayments of some portion of loan amount were noted in the back side of the ‘ekrarnama’ but original O.P.s. took the plea that Kishori Mohan taking advantage of looking after them during their minority after death of their father in 1966 took away those documents and did not produce the same in Court during trial and for that reason an adverse inference should be drawn against him. It is true that Kishori Mohan was in possession of the property all along but said possession was not repugnant to the defence case that Kishori Mohan being brother of their father Jatindranath was permitted to live on that land on compassionate ground and that though Kishori Mohan failed to pay the consideration money within three years as per terms of ‘ekrarnama’, no coercive step was taken as because there was good relation between two brothers. Having good relation between two brothers also found support from the evidence of Kishori Mohan as in spite of refusal of Jatindranath to execute the deed of reconveyance in spite of alleged receipt of full amount, he acted as a guardian of the minor children of Jatindranath after his death in 1966. Another interesting and vital circumstances may be noted in this regard. Admittedly the preliminary decree was passed on 13.06.1950 in the suit for partition declaring the share of Kishori Mohan (defendant No.4) and Jatindranath (defendant No.2) as 3/32 each. It further came out from Order No.172 dated 24.06.1959 that Jatindranath (defendant No.2) wanted allotment of share of Kishori Mohan (defendant No.4) besides his share in view of the fact that Jatindranath purchased 3/32 share of Kishori Mohan in the said property by registered ‘Kobala’ dated 21.09.1955. It further came out from Order No.172 dated 24.06.1959 that Jatindranath (defendant No.2) wanted allotment of share of Kishori Mohan (defendant No.4) besides his share in view of the fact that Jatindranath purchased 3/32 share of Kishori Mohan in the said property by registered ‘Kobala’ dated 21.09.1955. Then Kishori Mohan (defendant No.2) raised objections alleging that there was a contract for reconveyance though the time for taking the reconveyance was already over but said prayer of Kishori Mohan (defendant No.2) was rejected by learned Trial Court by order No.202 dated 09.08.1960. Learned Commissioner was directed to proceed commission work in terms of order No.172 dated 24.06.1959 and other orders. It is thus apparent that even in 1959 i.e., after over of stipulated period of three years from 21st September, 1955 (period as stipulated in ‘Ekrarnama’) Jatindranath (defendant No.4) asserted his right as a purchaser of share of Kishori Mohan (defendant No.2) through said deed of conveyance dated 21st September, 1955. It belied the story of original appellant Kishori Mohan that Jatindranath (defendant No.4) gave assurance to him for reconveyance treating the original sale deed of 1955 as a loan transaction till his death in 1966 or that original O.P.s. being sons of Jatindranath gave same assurance to Kishori Mohan after attaining majority. There is no explanation whatsoever why Kishori Mohan waited till 1990 for filing the case under 37/38 Bengal Money Lenders Act when even in 1959 Jatindranath asserted his right as a full-fledged purchaser of the share of Kishori Mohan on account of said deed of conveyance dated 21.9.1955 as Kishori Mohan failed to repurchase the said property within three years in terms of said ‘ekrarnama’ executed on the same date. There is also no evidence that the consideration money of the deed of 1955 was below the market price. Surendranath Das, the actual vendor of said deed of 1955 also did not come forward to support Kishori Mohan. It is true that Kishori Mohan and later his legal heirs being present petitioners are in possession of the said property but that possession alone does not prove that deed of conveyance dated 21.09.1955 was an ostensible sale deed or was a loan transaction particularly in view of the other evidence on record as stated above. It is true that Kishori Mohan and later his legal heirs being present petitioners are in possession of the said property but that possession alone does not prove that deed of conveyance dated 21.09.1955 was an ostensible sale deed or was a loan transaction particularly in view of the other evidence on record as stated above. Even if it is admitted for the sake of argument that the evidence on record and surrounding circumstances may lead to two assumptions namely that the deed of conveyance dated 21.09.1955 was an out and out sale deed with an agreement of reconveyance and that original petitioner Kishori Mohan was in permissive possession in view of the relations between the parties, or that said document was loan in substance, but when learned Lower Courts on appreciation of evidence on record came to concurrent findings that deed of conveyance dated 21.09.1955 was an out and out sale deed, this Court of second appeal should not interfere with their concurrent findings of facts as the same cannot be said to be perverse. Accordingly, I am of the opinion that concurrent findings of learned Lower Courts do not call for any interference by this Court of second appeal and that impugned order does not suffer from any perversity in the perspective of the evidence on record. As a result, the appeal fails. The impugned judgment dated 30th March, 1996 passed by learned Additional District Judge, 6th Court at Alipore in Misc. Appeal No.323 of 1999 affirming the order dated 10th August, 1991 passed by learned Assistant District Judge, 7th Court at Alipore in Misc. Case No.18 of 1991 is hereby affirmed. Order of stay, if any, stands vacated. Send L.C.R. along with a copy of this judgment to the learned Appellate Court urgently for information and necessary action. Urgent xerox certified copy of this judgment be supplied to the learned Counsels of the party / parties, if applied for.