====================================================== Kumari Kamla Sinha v. Krishna Pd.& Ors
Case Details
Patna High Court SA No.127 of 2011 (9) dt.05-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.127 of 2011 ====================================================== Kumari Kamla Sinha .... .... Appellant/s Versus Krishna Pd.& Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Satya Ranjan Sinha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 9 05-08-2013 Heard the learned counsel, Mr. Kamla Prasad Roy appearing on behalf of the appellant under Order XLI Rule 11 C.P.C.
Legal Reasoning
The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 19.01.2011 passed by the learned Additional District Judge, F.T.C. I, Jamui in Title Appeal No.21 of 2007 whereby the Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 27.09.2007 passed by learned Munsif, Jamui in Title Suit No.51 of 2001. The plaintiff-appellant filed the aforesaid suit praying for declaration of title and recovery of possession of the suit land. According to the plaintiff, the property originally belonged to Bulaki Gope and Jhagroo Gope who sold the same to Mostt. Mustikima by registered sale deed dated 16.12.1938 and again Patna High Court SA No.127 of 2011 (9) dt.05-08-2013 2 Jhagroo Gope sold by registered sale deed dated 11.04.1942. She in turn sold the land to Mostt. Bibi Khodeja Khatoon. After her death, her husband sold the entire land to Bibi Roshan Ara by registered sale deed dated 22.05.1974. Roshan Ara executed a conditional sale deed in favour of Gangeshwar Paswan and Gangeshwar Paswan sold the property after expiry of five years i.e. on 24.10.1994 in favour of plaintiff. The defendants forcibly demolished the wall and encroached the land on 06.01.1998. The defendants filed contesting written statement alleging that they are the purchasers from the heirs of Jhagroo and Bulaki. The trial court on the basis of the materials available on record came to the conclusion that the plaintiff failed to prove the title of Gangeshwar Paswan. Gangeshwar Paswan was only the mortgagee who had no right to sell the property in favour of the plaintiff. Therefore, the plaintiff has not acquired any title and possession over the suit land. The trial court accordingly dismissed the suit. The plaintiff thereafter filed the appeal before the Lower Appellate Court. The Lower Appellate Court also recorded the finding that plaintiff failed to prove title of Gangeshwar Paswan, her vendor. In fact, Gangeshwar Paswan Patna High Court SA No.127 of 2011 (9) dt.05-08-2013 3 was a mortgagee and had no right to transfer the property in favour of the plaintiff. He had the only right to sue for foreclosure of the mortgage.
Legal Reasoning
The learned counsel, Mr. Roy appearing on behalf of the appellant submitted that in the deed itself executed by Roshan Ara in favour of the Gangeshwar Paswan, it is clearly mentioned that if within five years, the amount of Rs.16,000 is not returned by the mortgagor in favour of Gangeshwar Paswan, the conditional sale dated 12.10.1982 will become absolute sale. The said period of five years expired in the year 1987 but Roshan Ara never returned the said consideration amount of Rs.16,000 and never redeemed the mortgage, therefore, according to the conditions mentioned in the deed, Gangeshwar Paswan became the absolute owner. In such view of the matter, the plaintiff who has purchased the property by terms of registered sale deed dated 24.10.1994 became the owner of the property but both the courts below have wrongly held that Gangeshwar Paswan should have filed a foreclosure suit but instead of filing foreclosure suit, he has sold the property. According to the learned counsel, Gangeshwar Paswan could not have filed the foreclosure suit because it was a conditional sale and not a mortgage. The learned counsel further submitted that the decision of this court reported in 2007(3) BLJR Patna High Court SA No.127 of 2011 (9) dt.05-08-2013 4 2364 has wrongly been interpreted by the Lower Appellate Court. The courts below have wrongly not relied upon condition mentioned in the deed dated 12.10.1982. From perusal of the judgment of the Lower Appellate Court, it is clear that according to the plaintiff herself, the owner, Roshan Ara executed a conditional sale deed on 12.10.1982 in favour of Gangeshwar Paswan. In the said sale deed, it was agreed between the parties that if within five years, Rs.16,000, the consideration amount which was paid by Gangeshwar Paswan to Roshan Ara is not returned to Gangeshwar Paswan, the said conditional sale will become absolute sale and Gangeshwar Paswan will be the absolute owner of the property. In such view of the matter, it becomes admitted fact that the deed was a mortgage by conditional sale within the meaning of the said term as provided under Section 58(c) of the Transfer of Property Act. The decision relied upon by the learned counsel for the appellant speaks about the well settled principles of law for distinction about mortgage by conditional sale and a deed of sale out and out. Here, it is admitted fact that this deed dated 12.10.1982 in favour of Gangeshwar Pawan is a mortgage by conditional sale. In the said deed, it is mentioned that within five years, the amount of consideration is to be returned by Roshan Ara. If it will not be Patna High Court SA No.127 of 2011 (9) dt.05-08-2013 5 returned then the sale will become absolute. So far this condition is concerned, it will amount to a clog in the equity of redemption. In the case of Murarilal and others vs. Devkaran and others, AIR 1965 Supreme Court 225, five Judges Bench of the Hon’ble Supreme Court has held that if there would be no scope for the mortgagor to say anything it necessarily meant that in the event of the amount due under the mortgage remaining unpaid within the stipulated period, the mortgagor’s title will be extinguished and the mortgagee would become the absolute owner of the property, the stipulation in the mortgage deed will amount to a clog in the equity of redemption. This view of the Hon’ble Supreme Court has again been reiterated in AIR 1989 Supreme Court 436. Therefore, now, in view of the above settled proposition of law by agreement of the parties, the right of redemption cannot be reduced against the statute. Admittedly, Gangeshwar Paswan was, therefore, a mortgagee and because of non-payment of consideration amount by Roshan Ara within the stipulated period, the right of Roshan Ara will never be extinguished because the agreement regarding redemption of the mortgage within five years is bad in law as it has been considered to be clog in the equity of redemption. The plaintiff admittedly claimed title on the basis of the sale deed executed by Gangeshwar Patna High Court SA No.127 of 2011 (9) dt.05-08-2013 6 Paswan on 24.10.1994. Since Gangeshwar Paswan was only a mortgagee, he could not have transferred title of the property in favour of the plaintiff. So, the plaintiff has not derived title on the basis of the sale deed executed by a mortgagee. In my opinion, therefore, the points raised by the learned counsel for the appellant is not at all a substantial question of law since the same has already been settled by the Hon’ble Supreme Court in various decisions which are binding precedent. Thus, I find that no substantial question of law is involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Saurabh/-