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2016 DIGILAW 1575 (HP)

Ramesh Chand v. Amar Singh

2016-08-02

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This regular second appeal is instituted against the judgment dated 4.8.2009 rendered by learned District Judge, Solan, in Civil Appeal No. 14-S/13 of 2009. 2. The key facts necessary for the adjudication of the appeal are that the respondent/plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit for redemption of mortgaged land against the appellant/defendant (hereinafter referred to as the "defendant" for convenience sake). According to him, he is owner of the land comprised in Khata Khatauni No.9/10, Kita 8 total measuring 49 bighas to the extent of ?rd share measuring 6-17 bighas, situated in Village Ser Galotia, Pargana Matyanj Kalan, Tehsil Arki, District Solan, H.P. He mortgaged the suit land with the defendant for a sum of Rs. 86035/-. The mortgage being oral was reported to revenue agency and the Assistant Collector, 2nd Grade, sanctioned the mutation No.440 dated 2.3.2000. The possession of the mortgaged land was delivered to the defendant at the time of oral mortgage on account of interest on the advanced money. The mortgage was usufructuary and on redemption, the plaintiff had to pay only advanced money. On 30.4.2003, he tendered an amount of Rs. 86035/- to defendant and asked him to deliver the mortgaged land, but he refused to do so. 3. The suit was contested by the defendant. In the written statement, on merits, the defendant has admitted that the suit land was mortgaged. However, the defendant has raised contention that the plaintiff had also agreed to sell the land to him as part of the agreement. According to the defendant, he made a payment of Rs. 60,000/- in favour of the plaintiff and performed his part of the agreement. However, later on the plaintiff was not ready to perform his part of the agreement. 4. The replication was filed. The learned trial court framed the issues on 7.10.2004 and decreed the suit in favour of the plaintiff vide judgment and decree dated 29.12.2008. The defendant feeling aggrieved with the judgment and decree dated 29.12.2008 preferred an appeal before the learned first Appellate Court, who dismissed the same vide impugned judgment and decree dated 4.8.2009. Hence, this regular second appeal, which was admitted on following substantial question of law on 1.9.2010:- "Whether the transaction in question was not a mortgage simpliciter, but that of conditional sale?" 5. Mr. Hence, this regular second appeal, which was admitted on following substantial question of law on 1.9.2010:- "Whether the transaction in question was not a mortgage simpliciter, but that of conditional sale?" 5. Mr. Suneet Goel, learned counsel appearing for the appellant, has vehemently argued that the transaction was not a mortgage, but it was a conditional sale. 6. Mr. K.D. Sood, learned senior counsel appearing for the respondent, has supported the judgments and decrees passed by both the learned courts below. 7. I have heard learned counsel for the parties and have gone through the record carefully. 8. The plaintiff appeared as PW-1 in the witness-box and tendered his evidence by way of an affidavit, Ext.PW1/A. He placed on record mutation, Ext.PA and jamabandi, Ext. PB. In his cross-examination, he deposed that he is not aware of any agreement having been prepared and executed. He denied his signatures on the agreement. He specifically denied that any agreement was executed with the defendant to the effect that he would sell his share to him. 9. The defendant appeared as DW-1 in the witness-box and also tendered his evidence by way of an affidavit, Ext. D1. According to him, the plaintiff had mortgaged his land with him and mutation to the same was also sanctioned in his favour. The plaintiff entered into an agreement with him on 21.5.1999, Ext. D2 to the effect that he would sell his land to him. The agreement, Ext. D2 was scribed by DW2, Kamlesh Kumar. He admitted that agreement, Ext. D2 is not registered. He also admitted that marginal witnesses Balbir and Rama Nand are his real brother and maternal uncle respectively. He denied that the plaintiff approached him to return the mortgaged money and he refused to take the same. He deposed that the plaintiff is ready to pay the amount, for which the land was mortgaged to him. 10. DW2, Kamlesh Kumar, deposed that he had scribed the agreement, Ext. D2 on 21.5.1999. In cross-examination, he categorically deposed that he had no acquaintance with the plaintiff. He further deposed that only after having a look at the agreement he could say whether the witnesses signed the agreement in Hindi or English. 11. DW3, Rama Nand is marginal witness to agreement, Ext. D-2. In his cross-examination, he categorically admitted that the land was mortgaged for a sum of Rs. 86,000/-. 12. He further deposed that only after having a look at the agreement he could say whether the witnesses signed the agreement in Hindi or English. 11. DW3, Rama Nand is marginal witness to agreement, Ext. D-2. In his cross-examination, he categorically admitted that the land was mortgaged for a sum of Rs. 86,000/-. 12. According to jamabandi for the year 1995-96, Ext. PB, the plaintiff had mortgaged his ?rd share out of the land measuring 16-7 bighas in favour of the defendant vide mutation No.440. There is no dispute that the suit land was mortgaged upto ?rd share by the plaintiff. DW2, Kamlesh Kumar, has testified that he had no acquaintance with the plaintiff, however, in examination-in-chief, he deposed that the plaintiff and defendant had come to him for writing agreement. Though, he has deposed that the witnesses had signed the agreement in his presence, but he has further testified that he had no personal knowledge whether the marginal witnesses Balbir Singh and Rama Nand had signed the agreement, Ext. D2. He has admitted that DW3 Rama Nand is the maternal uncle of defendant. 13. The Court has gone through the agreement, Ext. D2. It is in double space, however, towards the end one line has been inserted in single space about sale of the land within six months. DW3, Rama Nand, marginal witness has admitted that the line was inserted after agreement was executed, however, later on he denied this fact. Therefore, the line qua sale of the land within six months having been inserted in the agreement, Ext. D-2, read in conjunction with statement of DW3 Rama Nand creates a doubt on the veracity of the agreement, Ext. D-2. According to the plaintiff, he has never entered into any agreement with the defendant for the sale of the suit land. The defendant has admitted that the plaintiff was ready to pay the amount, for which the land was mortgaged to him. The agreement, Ext. D-2 was a mortgage deed and not conditional sale agreement. 14. Their Lordships of Hon'ble Supreme Court in Murarilal v. Devkaran, AIR 1965 SC 225 have held that when a clause was inserted that after the expiry of the stipulated period of 15 years, the shop would be deemed as an absolute transfer, it would amount to a clog. Their Lordships have held as under:- 4. 14. Their Lordships of Hon'ble Supreme Court in Murarilal v. Devkaran, AIR 1965 SC 225 have held that when a clause was inserted that after the expiry of the stipulated period of 15 years, the shop would be deemed as an absolute transfer, it would amount to a clog. Their Lordships have held as under:- 4. The first question which calls for our decision is whether the relevant, clause on which the appellant relies makes the mortgagee the owner of the property at the end of the stipulated period of 15 years. The mortgage provides, inter alia, that after the house which was the mortgage property was delivered over to the mortgagee, it was open to him either to live in it or to let it out to tenants. The mortgagee was further given liberty to spend up to Rs. 35/- for repairing the house and it more expenses were intended to be incurred, the said expenditure would be incurred through the mortgagor. On the expenditure thus incurred, the mortgagor was liable to pay interest at the rate of As. -/6/- per cent per month. Then the document proceeded to add that the mortgagor would get the property redeemed on payment of the mortgage amount as welt as the cost of Patta which may have been incurred by the mortgagee and the repairing expenses within a period of 15 years. Then, occurs the relevant clause: "After the expiry of the stipulated period of 15 years, this shop would be deemed as an absolute transfer "Mala Kalam" for this very amount. Till the mortgage money is paid, I shall have no concern with the shop." The High Court appears to have taken the view that the words "Mala Kalam" which occur at the end of the relevant clause do not necessarily, import the notion that the mortgage property would be the absolute property of the mortgagee. According to the High Court the said words literally mean "where there is no scope for having any say". If that is the meaning of the relevant words, it seems difficult to accept the view that the document did not intend to make the mortgagee the owner of the property at the end of 15 years if the debt due was not paid within that period. If that is the meaning of the relevant words, it seems difficult to accept the view that the document did not intend to make the mortgagee the owner of the property at the end of 15 years if the debt due was not paid within that period. When the document says that there would be no scope for the mortgagor to say anything, it necessarily means, in the context, that the mortgagor would, in that case, have lost his title to the property, and that means the mortgagee would become the absolute owner of the property. Therefore, feel no difficulty in holding that it the terms of the document were to prevail, the appellant's contention that the present suit for redemption is barred, must succeed. It is common ground that the amount due under the mortgage deed was not paid by the mortgagor or his heir within the stipulated period and that would extinguish the title of the mortgagor and make the mortgagee to be the owner of the property. 15. In R. Dhanalakshmi Ammal v. G. Anthuraj, AIR 1972 Madras 185, the Division Bench has held that the provision in mortgage deed that if there was default in payment of mortgage money as stipulated in the deed, the transaction should be regarded as an absolute sale and would operate as a clog and that clause was of no effect. Their Lordships have held as under:- 1. This is second appeal by the 4th defendant arising out of a suit for redemption. The property, an extent of 2 acres 75 cents, originally belonging to one Gabriel by purchase in June, 1932. He usufructuarily mortgaged on acre comprised in S. No. 124 out of 2 acres 75 cents to one Antony Cruz for Rs. 300/-. The deed provided for 30 years for redemption. It contained a further provision that if there was default in payment of the mortgage money as stipulated in the deed, the transaction should be regarded as an absolute sale. We may immediately remark that this operated as a clog and this clause will be of no effect. As a matter of fact counsel on both sides have proceeded on this basis. The mortgagee by a deed dated August 25, 1934, purported to sell absolutely the one acre of land covered by the earlier usufructuary mortgage to Ross. We may immediately remark that this operated as a clog and this clause will be of no effect. As a matter of fact counsel on both sides have proceeded on this basis. The mortgagee by a deed dated August 25, 1934, purported to sell absolutely the one acre of land covered by the earlier usufructuary mortgage to Ross. When it was conveyed, the property was described as vacant land and house site of the vendor. After the death of the purchaser Ross his executrix one Mrs. Templeton sold the one acre to Mr. Brown for Rs. 6500/-. By then a pucca house had been built on the site by the late Ross and the house was names as "Clarendar". Mr. Brown in his turn sold the property to the 4th defendant by a sale deed dated March 30, 1961. The suit out of which this second appeal arises was instituted on March 9, 1964, by the son of Gabriel. The trial court held that Article 134 of the old Limitation Act, which is equivalent to Article 61(b) of the current Act of Limitation, applied to the suit and accordingly it was barred. The suit was therefore dismissed. The appellate court reversed the decree on the view that after all the purchaser from the mortgagee had no better right than the mortgagee himself and that since the mortgagor had a period of thirty years to redeem, the suit was within time. 16. Consequently, in view of analysis and discussion made herein above, there is no merit in the appeal and the same is dismissed. Pending application(s), if any also stands disposed of. No order as to costs.