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2018 DIGILAW 641 (MP)

Rajendra Kumar v. Gomati Devi

2018-07-19

VIVEK AGARWAL

body2018
JUDGMENT 1. This first appeal has been filed by the appellant defendant being aggrieved by the judgment and decree dated 16.8.2001 passed by the Additional District Judge, Sabalgarh, District Morena, in Civil Suit No.14-A/1991, whereby the suit for specific performance was decreed by the learned trial Court. 2. Brief facts leading to the present appeal are that the plaintiffs had filed a suit against the defendant for redemption of mortgage, declaration of title and in the alternative execution of document of conditional sale and for possession of part of the suit property and payment of arrears of rent. The husband of Plaintiff No. 1 was a Clerk in the Court. A counterclaim was filed by the defendant seeking possession from the plaintiffs and recovery of rent @ Rs.100/- per month from August 1991. 3. It was the case of the plaintiffs that from the father of the defendant, they had purchased certain building material valued at Rs.14,000/- and that money was claimed by the father of the defendant from the plaintiffs, but the plaintiffs were not having arrangement to pay that amount and in addition, they required additional some of Rs. 10,000/- for the marriage of their niece, therefore, the house was mortgaged by the plaintiffs in favour of the father of the defendant, but defendant Pyarelal refused to keep the house in mortgage and asked them for execution of the sale deed. A sale deed was executed and an agreement was executed separately with Rajendra Kumar that they shall pay the amount of loan within a period of three years with 2% monthly interest and in that event, the property shall be re-conveyed by execution of a sale deed in favour of the plaintiffs. The plaintiffs had executed a registered sale deed in favour of the defendant on 20.4.1987 after accepting a sum of Rs. 30,000/- from the defendant. Copy of such sale deed is Ex.D-1. It is the plaintiffs’ case that on that very date, an agreement Ex.p-1 was executed for redemption of sale on payment of loan amount alongwith interest within three years and a symbolic possession of the property was handed over to the defendant. At the time of this execution of the sale deed, there were two tenants in the suit premises, namely, Heeralal and R.C. Mishra, who were paying monthly rent of Rs. 300/- per month. At the time of this execution of the sale deed, there were two tenants in the suit premises, namely, Heeralal and R.C. Mishra, who were paying monthly rent of Rs. 300/- per month. The defendant was authorÁed to accept this rent in lieu of interest. Plaintiffs maintained his possession on a portion of the property and the defendant started receiving rent @ Rs. 120/- per month from tenant Heeralal on the first floor and Rs. 180/-per month from R.C. Mishra for a portion of house on the ground floor. In 1988 since Heeralal was transferred, he had handed over possession of that portion in favour of the plaintiffs, whereas when the property was vacated by R.C. Mishra, then the defendant had rented it out to one ASI Lokendra Singh on rent @ Rs.180/- per month. It was also averred that the defendant got his name entered in the Municipal records in an illegal manner, whereas the plaintiffs had not sold the house in favour of the defendant, but it was only mortgaged and they had no intention of selling the house. The agreement was to adjust interest amount against the rent amount and it was also averred that the rate of interest was abnormally high and arbitrary. It was submitted that the defendant was not entitled to recover interest @ more than 12%. 4. It was also submitted on behalf of the plaintiffs that in 1990 Matadin Seniya had requested the father of the defendant to settle the accounts and asked his son to execute a reverse sale deed as the defendant was staying outside in those days, but the defendant’s father did not settle the accounts as a result the plaintiffs had moved an application under sections 83 and 84 of the Transfer of Property Act and had deposited a sum of Rs. 40,800/-. It was submitted that the plaintiffs were always willing and prepared to get executed the reverse sale deed in his favour and had given a notice also, but the defendant did not obey the terms of the notice and, therefore, prayed for a specific performance of the agreement. He also prayed for restoration of possession in favour of the plaintiffs from Lokendra Singh, who was inducted as a tenant by the defendant and till such vacation claimed rent @ Rs. 180/- per month from such Lokendra Singh. 5. He also prayed for restoration of possession in favour of the plaintiffs from Lokendra Singh, who was inducted as a tenant by the defendant and till such vacation claimed rent @ Rs. 180/- per month from such Lokendra Singh. 5. It was also prayed that after adjusting the rent recovered by the defendant, the plaintiffs be declared as owners of the suit property. 6. The defendant, on the other hand, submitted that there was no condition of mortgage in the sale deed. It is also submitted that there was no agreement for payment of loan amount alongwith interest and redemption of mortgage. The defendant denied agreement Ex.p-1 and claimed possession over the suit property. It was also submitted that such agreement was prepared in a fraudulent manner as Advocate Ramjilal Gaud was having family relationship with the plaintiffs. It was also submitted that the application under sections 83 and 84 of the Transfer of Property Act has been rejected. The defendant also submitted that the suit was barred by limitation and was not maintainable. 7. The trial Court framed as many as 14 issues and decreed the suit in favour of the plaintiffs holding Ex.D-1 to be an artificial sale deed and further holding that there was an agreement dated 20.4.1987 between the plaintiffs and defendant Rajendra Kumar for redemption of the mortgaged property, for which the sale deed was executed. 8. Learned counsel for the appellant has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Raj Kishore v. Prem Singh as reported in 2011(I) JLJ 244=2011 (2) MPLJ 291 and submits that unless and until condition of mortgage by conditional sale is embodied in the document that purports to effect the sale, then such transaction would not constitute a mortgage by conditional sale because the mortgage by conditional sale is described by section 58 (c) of the Transfer of Property Act and the proviso below sub-section provides that “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 effect the sale.” 9. Learned counsel for the appellant has also placed reliance on the judgment of the M.P. High Court in the case of Jama son of Mithu v. Khalil son of Mohinuddin and others as reported in 2009 (3) MPLJ 254 , wherein the ratio of the judgment is that if the sale deed does not contain any of the conditions contemplated under section 58 (c) agreement of mortgage to change the conditions of registered sale deed will not be of any help if such agreement of mortgage to change the conditions of registered sale deed is not registered inasmuch as such unregistered document could not have been treated as a document admissible in evidence. The learned trial Court totally ignored the sale deed and misinterpreted and wrongly placed reliance on the agreement, which was inadmissible in evidence. 10. On the other hand, learned counsel for the plaintiff has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Mushir Mohamad Khan v. Smt. Sajeda Bano and others as reported in 2000 (I) JLJ 327 = 2000 (4) MPHT 241 , wherein in para 23, it has been held that if the property is placed as a security against loan, then debtor is to be protected being exploited by the creditor and the Court may allow to redeem the property by making deposit under Order 34 rule 5, CPC. 11. After hearing the learned counsel for the parties and going through the record of the case and the evidence, which has been adduced by the parties, there is no condition in regard to transaction being that of a mortgage or of conditional sale in the document Ex.D-1, which is the sale deed. It is clearly mentioned that the market value of the property is Rs. 30,000/- and the seller has already received a sum of Rs. 20,000/- and shall receive a sum of Rs. 10,000/- before the Sub-Registrar, Sabalgarh and in case such amount of Rs. 10,000/- is not received or some less amount is paid, then the document shall be treated to be null and void. It is also mentioned in Ex.D-1 that the property is solely that of the sellers Gomati Devi wife of Matadin and Jitendra Kumar (who was minor at that point of time) son of Matadain and it is free from all kind of loans, mortgages and other encumbrances, Will, Gift, etc. It is also mentioned in Ex.D-1 that the property is solely that of the sellers Gomati Devi wife of Matadin and Jitendra Kumar (who was minor at that point of time) son of Matadain and it is free from all kind of loans, mortgages and other encumbrances, Will, Gift, etc. Again, it is mentioned that the property is made on an uneven place and its market value is not more than Rs. 30,000/- and its annual rent cannot be more than Rs. 1200/- per year. It is also mentioned that for her domestic requirement, other requirements and for upbringing of minor children, she requires money and for the sale consideration mentioned in the deed she is selling the property in question in favour of Rajendra Kumar son of Pyarelal and possession was also handed over as per the document giving all the rights of mutation etc. in favour of the purchaser. It is even mentioned that in case some concurrence or signatures of seller are required to effect mutation, seller shall cooperate and if any defect is found in the title, sale deed or if there is any dispute, then the seller shall compensate the buyer to the tune of the sale consideration. Even right to construction, mortgage, dismantle, etc. were also given in favour of the purchasers. Thus, reading of the sale deed Ex.D-1 categorically and abundantly makes it clear that there is no condition of mortgage or of conditional sale as is envisaged under section 58 (c) of the Transfer of Property Act. It is also submitted that document (Ex.p-1) agreement allegedly executed after registration of sale deed converting the transaction into that of a conditional sale or mortgage is not registered and, therefore, in the light of the law laid down by a Coordinate Bench of this Court in the case of Jama son of Mithu v. Khalil son of Mohinuddin and others as reported in 2009 (3) MPLJ 254 , the trial Court erred in treating the agreement (Ex.p-1) to be agreement of mortgage to change the conditions of registered sale deed though it was not registered and could not have been treated as a document admissible in evidence. In fact, there is no stipulation in the order that any application was made to forfeit the agreement and pay the stamp duty in terms of the requirements of the Stamps Act. 12. In fact, there is no stipulation in the order that any application was made to forfeit the agreement and pay the stamp duty in terms of the requirements of the Stamps Act. 12. Plaintiffs' contention that the suit property was undervalued is also not made out from the documents on record inasmuch as vide Ex.D-2, plaintiff Gomati Devi and Jitendra Kumar had purchased the suit property from one Buddhi son of Hannu for a sale consideration of Rs. 5,000/- on 12.5.1983. Therefore, the sale of such house for a sum of Rs. 30,000/- just four years after the original purchase defies the arguments that the suit property was undervalued. 13. As far as the contention of the respondents-plaintiffs on the law laid down in the case of Mushir Mohammed Khan v. Sajeda Bano and others as reported in 2000 (I) JLJ 327 = 2000 (4) MPHT 241 in para 23 is concerned, the necessary condition is that the property should have been placed as a security against loan, but from the sale deed, it is apparent that there is no such stipulation to show that it was a case of loan rather than that of a transaction of outright sale. 14. In fact, the Hon'ble Supreme in the case of Mushir Mohammed Khan (supra), itself has held that the agreement of re-conveyance in favour of the plaintiffs and rent note did not dis-constitute a mortgage or mortgage by conditional sale as the condition of repurchase was not contained in the sale deed itself. 15. Learned counsel for the plaintiffs has placed reliance on the judgment of this Court in the case of Vijay Kumar Tamrakar v. Smt. Shanti Singh as reported in 1993 (II) MPWN SN 155, wherein it has been held that once signatures are admitted, the executant being an educated person cannot be presumed to have signed the same on blank paper and without receiving consideration mentioned therein. This argument has been advanced to show that the denial of Ex.p-1 in the hands of the defendant is arbitrary because as per section 102 of the Evidence Act, party pleading fraud has onus to prove the same. 16. This argument has been advanced to show that the denial of Ex.p-1 in the hands of the defendant is arbitrary because as per section 102 of the Evidence Act, party pleading fraud has onus to prove the same. 16. This judgment too is not of much assistance to the plaintiffs inasmuch as in the light of the judgment rendered in the case of Jama son of Mithu (supra), if agreement of mortgage to change the conditions of registered sale deed is not registered, then that could not have been treated as a document admissible in evidence. Therefore, even if it is presumed that Ex.D-1 was executed by the defendant, then also it will be of no help to the plaintiffs as that could not have altered the conditions of sale deed, which does not contain any stipulation as per the requirements of section 58 (c) of the Transfer of Property Act. Thus, the impugned judgment and decree have been passed on faulty premise without appreciating the legal position and the provisions of law as contained in the Transfer of Property Act, and deserve to be set aside and are hereby set aside. Accordingly, the appeal stands allowed.