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Madhya Pradesh High Court · body

2013 DIGILAW 63 (MP)

Fatma Bai v. Yogendra Sharma

2013-01-08

A.K.Shrivastava

body2013
JUDGMENT Feeling aggrieved by the judgment and decree dated 01.12.1995 passed by learned First Additional Judge to F.A. No. 156/1996 the Court of District Judge, Bhopal in Civil Suit No.66-A/1984 whereby the suit of plaintiff Fatma Bai has been dismissed, she has preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908. It would be relevant to mention that original plaintiff Smt. Fatma Bai has died during pendency of this appeal and the present appellants are her L.Rs. Similarly, first defendant Chitravati Sharma has also died and her L.R Yogendra Sharma is on record. Her another L.R Parmeshwari Vallabh Sharma, defendant No.2 is already on record as respondent No.2. For convenience, in this judgment wherever the term 'plaintiff' is written, it would mean Smt. Fatma Bai and wherever the term 'defendants' is written it would mean first defendant Smt. Chitravati and second defendant Smt. Permeshwari Ballabh Sharma. 2. Today is the auspicious day because the first appeal which was filed on 16.04.1996 (i.e. more than 16 years ago) is being decided and a civil suit which was filed on 20.09.1984 near about 29 years (near about 3 decades) ago, is being decided. 3. In brief, the suit of plaintiff is that she is the owner of the house in question which is four-storied and the same was mortgaged in the year 1969 to a Firm M/s Narayan Das Bhagwan Das Agarwal for Rs. 20,000/-and because the plaintiff was in need of money to get the suit house redeemed, she requested second defendant who was her tenant to give a loan of Rs. 50,000/-which he readily accepted. Since the upper portion of the disputed house was vacant, it was settled between the plaintiff and defendant No.2 that plaintiff will induct defendant No.2 as tenant on the upper floor and he (defendant No.2) would provide loan of Rs. 50,000/-at the rate of Rs. 1.50 paise per month but the interest will not be received by the defendant and the plaintiff will also not receive any rent from him. Further it has been pleaded by the plaintiff that it was also agreed between the parties that whenever the plaintiff returns a sum of Rs. 50,000/-to defendant No.2, the suit house shall be redeemed. 1.50 paise per month but the interest will not be received by the defendant and the plaintiff will also not receive any rent from him. Further it has been pleaded by the plaintiff that it was also agreed between the parties that whenever the plaintiff returns a sum of Rs. 50,000/-to defendant No.2, the suit house shall be redeemed. The defendant No.2 was not in occupation of money-lending business as a result of which a document of sale-deed was written on 15.6.1971 because during those days there was no practice to execute a mortgage deed and instead of writing a deed of mortgage, document of sale deed used to be executed as a result of which she executed document of mortgage by labelling it to be a sale deed and on the same day i.e. 15.6.1971, a rent-note was also executed between the parties. It is further pleaded in the plaint that when the plaintiff was going for pilgrimage (Haj) she offered Rs. 50,000/-to defendant No.2 who did not accept that amount and after coming back from Haj whenever she tried to offer the mortgage money Rs. 50,000/-to him, second defendant avoided to accept the same. 4. The real intention and mala fide attitude of the defendants became obvious only when a suit was filed by them for eviction against the plaintiff on the relationship of landlord and tenant, as a result of which, she has filed present suit for redemption of the suit house seeking a decree to deliver possession and in the alternative to declare the document of sale deed dated 15.6.1971 and the rent-note executed on the same day to be the document of security towards loan and interest. 5. The defendants by filing a joint written-statement refuted the plaint averments and specifically denied the averments of plaintiff that she ever took loan of Rs. 50,000/-or she mortgaged the suit house to them. The rate of interest was also not fixed between the parties nor it was a condition embodied in the document of sale. Further they have pleaded that no interaction took place between them that the suit house will be given back to the plaintiff. 50,000/-or she mortgaged the suit house to them. The rate of interest was also not fixed between the parties nor it was a condition embodied in the document of sale. Further they have pleaded that no interaction took place between them that the suit house will be given back to the plaintiff. According to the defendants, indeed on 15.6.1971 the suit house was sold to first defendant with a clear stipulation in the document that from the date of the sale the plaintiff shall not have any right, title and interest in the suit house and the purchaser (first defendant) would be the owner of the suit house. A specific pleading is raised in the written-statement that no condition to get the suit house redeemed is embodied in the document of sale dated 15.6.1971 and therefore, the suit of plaintiff is not having any merit and hence, her suit be dismissed. 6. On the basis of the averments made in the plaint and denial in the written-statement, learned Trial Court framed necessary issues and after recording the evidence of the parties did not find that the transaction between the parties was a mortgage with conditional sale as embodied in Section 58(c) of the Transfer of Property Act, 1882 (in short “the TP Act”). According to learned Trial Court, it was an outright sale and hence dismissed the suit of plaintiff in toto. 7. In this manner this appeal has been filed by the plaintiff. The contention of Shri Adil Usmani, learned counsel for the appellant/plaintiff is that since the document of alleged sale deed (Ex.D-1) dated 15.6.1971 and document of execution of rent-note (Ex.P-1) are of the same day i.e. 15.6.1971, therefore, obviously the transaction was of mortgage by conditional sale and if that would not have been the position, why the condition would have been embodied in the rent-note (Ex.P-1) that the possession of the entire house is given to the plaintiff which would mean that the transaction was nothing but a conditional sale and hence, it has been prayed that because the plaintiff right from very beginning is ready to pay the mortgage amount, by allowing this appeal the suit be decreed and the suit property be redeemed by delivering the possession to the plaintiff and the suit be decreed accordingly. 8. 8. On the other hand, Shri Ashok Lalwani, learned counsel appearing for the defendants argued in support of the impugned judgment and by taking aid of Section 58(c) of the TP Act and by paying heed to the proviso to it, submitted that because there is no condition in the document of the sale deed (Ex.D-1) and there is no other document on record in order to hold any of the ingredients of Section 58(c) of the TP Act which speaks about the mortgage by conditional sale, the document in question (Ex.D-1) cannot be said to be a document of mortgage by conditional sale. On the contrary, it is proved that it was outright sale and hence, it has been prayed that this appeal be dismissed. 9. Having heard learned counsel for the parties I am of the view that this appeal deserves to be dismissed. 10. Before deciding the rival contentions of learned counsel for the parties it would be relevant to mention here that before the impugned document of sale deed (Ex.D-1) was executed the property in question was already redeemed from the Firm M/s Narayan Das and Bhagwan Das Agarwal and this has not been disputed by the parties. 11. In the present case, the sale deed (Ex.D-1) dated 15.6.1971, which according to the plaintiff is a document of mortgage by conditional sale is on record and similarly the lease deed (Ex.P-1) dated 15.6.1971 is also on record. On bare perusal of the sale deed it is gathered that it was sold by plaintiff to defendant No.1 Smt. Chitravati Sharma for a consideration of Rs. 50,000/-and the entire amount of consideration was paid of Rs. 25,000/-in advance and the balance amount of consideration Rs. 25,000/-was obtained by the defendant No.1 in the presence of Sub-Registrar, Bhopal at the time of registration of the sale deed. In the document of sale (Ex.D-1) the entire ownership, right, title and interest have been transferred by the plaintiff to defendant No.1. By putting emphasis to the entire document this Court does not find any of the condition of Section 58(c) of the TP Act which is in respect of mortgage by conditional sale in the said document. Merely because the rent-note has been executed on the same day, would not mean that the document of sale (Ex.D-1) is not an outright sale, but, is a document of conditional sale. Merely because the rent-note has been executed on the same day, would not mean that the document of sale (Ex.D-1) is not an outright sale, but, is a document of conditional sale. According to me, proviso to Section 58(c) of the TP Act has been deliberately added by Section 19 of Act 20 of 1929 and according to which no transaction shall be deemed to be a mortgage, unless the condition which is embodied in the document effects the sale. Since not even a single condition as envisaged in Section 58(c) of the TP Act has been embodied in the sale deed, I am of the view that the transaction cannot be said to be a mortgage and the document of sale (Ex.D-1) was never written as a document of conditional sale. A landmark decision on this point of the Supreme Court is Chunchun Jha vs. Ebadat Ali and another, A.I.R. 1954 S.C. 345 and I think it appropriate to quote the relevant para-8 of the said decision wherein the Supreme Court has held as under:- “Under the Proviso to S. 58(c), T.P. Act, 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. But the converse does not hold good, that is to say, the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. The Legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore, it is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words; and if the conditions of section 58(c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage.” Since in the document (Ex.D-1) which is a sale deed no such condition has been mentioned in order to hold that it is a document of conditional sale, the contention of learned counsel for the appellant-plaintiff cannot be accepted. 12. 12. One important fact which cannot be marginalised and blinked away is that as it is proved on the basis of the pleadings and evidence and it is also found in the impugned judgment passed by learned Court below and further during the course of argument learned counsel for the parties submitted and learned counsel for the appellant has admitted that except the two shops on the ground floor the entire house which is four-storied is in possession of the defendants. True, in the lease deed (rent-note) Ex.P-1 it is mentioned that the possession shall be of the plaintiff but the learned Trial Court after marshalling the oral and documentary evidence vis-a-vis to the parties rightly came to hold that plaintiff is not in possession of the first, second and third floor of the house in question, although, she was tenant of two shops on the ground floor and on her behalf Ashfaq (PW-3) was earlier inducted and thereafter the plaintiff kept sub-tenant Murlidhar and Mohan. Indeed, the civil suit for eviction on that ground has also been filed under the rent control legislation which is M.P. Accommodation Control Act, 1961. Thus, rightly the finding has been arrived at by learned Trial Court that in the lease deed (rent note) Ex.P-1 wrongly this fact has been mentioned that the house in question has been given in possession to the plaintiff. 13. If the possession of the house in question would have been of the plaintiff then certainly this would be one of the element to hold that the transaction between the parties was not of sale and the property was mortgaged by conditional sale. Since admittedly the defendants are in possession of the entire house except on the ground floor in which the plaintiff is the tenant, it further strengthens the case of the defendants that the document in question was outright sale and this important fact weakens the case of the plaintiff that the transaction was of mortgage by conditional sale. 14. I have gone through the reasonings assigned by learned Court below and I find that they are based upon correct appreciation of evidence. There is nothing on record in order to hold that the evidence has not been read properly and has not been considered in its true sense. Hence, I find that there is no scope of any interference in this appeal. 15. There is nothing on record in order to hold that the evidence has not been read properly and has not been considered in its true sense. Hence, I find that there is no scope of any interference in this appeal. 15. Abjudicatio, this appeal fails and is hereby dismissed with no order as to costs.