Rajwati Devi v. Prem Nandani Sinha & Ors.

Judgment

1. The defendants have filed this first appeal against the judgment and decree dated 5th October 1978 passed by the learned 2nd Additional Subordinate Judge, Sitamarih in Title Suit No. 16 of 1976/ 79 of 1976 whereby the learned trial court decreed the plaintiffs’ suit for redemption.

2. The plaintiffs respondents filed the aforesaid suit for redemption of the mortgage dated 8.8.1973 executed by the plaintiff No.1 in favour of defendant No.3 with respect to the suit property Patna High Court FA No.884 of 1978 dt.13-02-2013 -2- comprised within ward No.13 holding No.90 measuring 1 kattha 10 dhur. According to the plaintiffs grandfather of the plaintiffs namely Ambika Prasad was the owner of the property. After the death of Ambika Prasad the father of the plaintiff No.1 namely Sitaram inherited the property and on his death the plaintiff No.1 inherited. In the revisional survey R.S. plot No.189 (ka) to 189(gha) measuring 46 decimal were carved out of C.S. plot No. 1952 which were recorded in the name of plaintiff No.1. The plaintiff No.1 was in need of money of Rs.8000/- and he requested the defendants for loan on the basis of simple mortgage with respect to suit property including the house measuring 1 kattha 10 dhur. The defendants insisted for executing mortgage by conditional sale and accordingly a mortgage deed by conditional sale was executed on 8.8.1973 for a period of 2 years. The defendants insisted that the half of the court fee and other expanses which will be spent by them including interest @ 1 rupee per month should also be added in the loan amount and, therefore, the amount mentioned in the mortgage by conditional sale was Rs.10,445/-. Bihar Relief Committee, Sitamarhi was tenant of the plaintiff in the suit house from before so it was settled that on expiry of two years the plaintiffs would repay Rs.10,445/- then the defendants will return the deed making necessary endorsement on the back. The plaintiffs tendered the Patna High Court FA No.884 of 1978 dt.13-02-2013 -3- amount to the defendants on 1.8.1975 and also on 7.8.1975 the defendant No.3 avoided and on 12.8.1975 the defendant No.3 said that two years of limitation has expired as such there is no question of refund of money arises because now it has became a sale. The relief committee vacated the suit premises on 30.4.1975. The

plaintiffs locked it but in the night of 12.8.1975 the defendants forcibly entered into the house. 144 Cr.P.C. proceeding was initiated between the parties. Thereafter, the plaintiffs deposited the amount as provided under Section 83 of the T.P. Act on 3.9.1975. According to the plaintiffs the deed was not a sale deed rather it was mortgage by conditional sale and the defendants never exercised power for foreclosure as provided under Section 67 of the T.P. Act.

3. The defendants filed the contesting written statement mainly contending that it was agreed between the parties that the form of the deed will be a Kebala Baimiyadi for a consideration of Rs. 10,445/- and accordingly, the sale deed was executed and the defendant No.3 was to be in possession of the same. The plaintiff was required to refund the said amount by 7.8.1975 and then the defendant would have re-conveyed the property and deliver vacant possession in favour of the plaintiffs. The plaintiff No.1 failed to refund the amount of Rs.10,445/- by 7.8.1975 as such he lost the right of re-conveyance. Entire consideration amount was paid to the Patna High Court FA No.884 of 1978 dt.13-02-2013 -4- plaintiffs and in fact the deed which is out and out sale was executed. The expenses incurred by the defendants i.e. stamp, registration fee and interest etc. were never included in the consideration amount. Since it was out and out sale there was no necessity to deposit the amount under Section 83 of the T.P. Act. The relief committee, was never in the suit premises nor the suit premises was ever vacated by relief committee rather defendant No.3 had been residing with his family in the suit house from

8.8.1973 i.e. the day of execution of the sale deed. He has spent Rs.4500/- in repairing the suit premises.

4. On the basis of the above pleadings of the parties, the following issues were framed by the trial court:- Is the suit as fraud maintainable ? I. II. Have the plaintiffs any cause of action or right to sue ? III. IV. Is the suit hit by section 12 of the Bihar Money Lenders Act ? Is the deed dated 8.8.73 (Ext. E) executed by plaintiff no.1 in favour of defendant no.3 a deed of out and out sale with a condition of repurchase or a deed of mortgage by conditional sale ? V. Are the plaintiffs entitled to a decree for redemption as sought for ? VI. To what relief or reliefs are the plaintiffs entitled ?

5. The trial Court recorded a finding that Ext. E is a mortgage Patna High Court FA No.884 of 1978 dt.13-02-2013 -5- by conditional sale and accordingly decreed the Suit.

6. The learned counsel appearing on behalf of the appellants submitted that in this case the pleading of the plaintiffs is contrary to the statements made in the deed itself. Since the deed is registered one, the oral evidence which is contrary to the terms and conditions of the deed are not admissible. According to the learned counsel in the deed dated 8.8.1973 it is specifically mentioned that possession of the suit property was delivered to the defendants appellants but contrary to this the plaintiffs pleaded that one relief committee was in possession of the suit house and on vacation the defendant broke open the lock and entered into the suit premises. If this case of the plaintiffs is believed then the defendants are entitled for interest at the rate of Rs. 1 per month as mentioned in the deed dated 8.8.1973. The plaintiffs respondents therefore, have not deposited the amount due to be paid to the appellants as provided under Section 83 of the Transfer of Property Act. Therefore, the deposit itself is not complete.

7. The learned counsel further submitted that the appellants paid the entire adequate consideration amount which was the market value of the property at the time of execution of the document Ext.(E). The name of the appellants was also mutated and he was paying tax to the municipality. In the document Ext.(E) itself it is Patna High Court FA No.884 of 1978 dt.13-02-2013 -6- mentioned that within two years the amount has to be returned to the defendants appellants which was never returned. Here since this was the agreement between the parties time was the essence of the contract. In such circumstances, on expiry of two years the right of re-conveyance was lost. The document itself is in two parts. In the document in first part it is mentioned about complete sale and full consideration amount i.e. market price of the suit property was given to the plaintiff and plaintiff was put in possession thereof. In the second part the agreement was entered into between the parties regarding re-conveyance therefore, all these factors if considers together it will lead to only and only conclusion that the document executed on 8.8.1973 is out and out sale wherein subsequently it was agreed between the parties that if the amount of consideration is paid back within two years the appellant will re-convey the property. Without considering these settled laws the trial court has wrongly held that the document is mortgage by conditional sale.

8. The learned counsel further submitted that the scribe of the document was not examined and the right of re-conveyance was not exercised by the plaintiffs within two years. The appellants produced the sale deeds of the locality of a contiguous plot to show that the consideration amount mentioned in the deed is the market value of the land but the trial court did not consider the same in its right Patna High Court FA No.884 of 1978 dt.13-02-2013 -7- perspective. In the deed itself the word consideration amount has been mentioned. If the document was mortgage by conditional sale then in the document it should have been mentioned as mortgage money. All these facts lead to the conclusion that there is no relationship of mortgagor and mortgagee between the parties. In support of his contention on these points stated above the learned counsel relied upon AIR 1960 SC 301, 1998 PLJR 48 SC and AIR 1974 Patna 246. The learned counsel further submitted that the intention of the parties was to execute out and out sale deed and pursuant to that possession was delivered and the appellant also spent money in repairing and re-modeling the suit property. If it was mortgage only then there is no question of repairing or renovating the suit house arises. According to the learned counsel the trial court has not properly appreciated the evidence and principle of law. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside. It may be mentioned here that the written argument has been filed by the appellants dealing with these points.

9. On the contrary, the learned senior counsel Mr. Ray Shivaji Nath appearing on behalf of the respondents submitted that the condition of return of the amount has been mentioned in the same very document which is the requirement of the law as provided Patna High Court FA No.884 of 1978 dt.13-02-2013 -8- under Section 58 (C) of the Transfer of Property Act. The document speaks that after return of the amount endorsement should be made in the back of the deed itself which clearly indicate that it was mortgage by conditional sale. According to the learned counsel the pleadings of the parties or the oral evidences contrary to the terms and conditions mentioned in Ext. (E) will not be the decisive factor for decision as to whether the document is out and out sale with a condition to repurchase or it is a mortgage by conditional sale. For construing the document the entire contents of the document has to be read together and then considering the circumstances the decision has to be made. No doubt, in the deed it is not mentioned that relief committee was in possession as tenant but the defendant admitted that he came in possession of the property from the date of execution of Ext.(E) i.e. 8.8.1973. In the deed it is mentioned that the title will pass to the defendant only after two years if amount of consideration is not returned. If the document was out and out sale and entire consideration was paid then title would have passed on the date of registration of the document itself and it could not have been kept in abeyance for long two years. If the deed was out and out sale then in such circumstances a separate agreement to repurchase would have been executed between the parties and in that case another sale deed is required to be executed by the vendee but is not done in the Patna High Court FA No.884 of 1978 dt.13-02-2013 -9- present case. The sale instances produced by the defendant appellants are with respect to the lands which are of different nature and moreover only because adequate consideration was paid the deed cannot be termed as out and out sale. So far tendering the money within two years is concerned, the plaintiffs have produced reliable evidences to the effect that the amount was delivered within two years but the appellants avoided the same on one pretext or other and on completion of two years he became dishonest and said that it was out and out sale. The learned counsel relied upon