High Court
Legal Reasoning
1 sa549.17 judgmentIN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABADSECOND APPEAL NO. 549 OF 2017WITHCA/10768/2017 IN SA/549/2017(STAY APPLICATION)WITHCA/12612/2023 IN SA/549/2017(CANCELLATION OF INTERIM RELIEF)Krishnalal Santaram Mendru,Age : 83 years, Occ : Nil,R/o : Karalewadi, Tq. Rahuri,District : Ahmednagar.Through : GPA holderNarendra Ashok Mendru,Age : 30 years, Occ; Service,R/o; Rahuri Factory,Tq. Rahuri, District : Ahmednagar. ...APPELLANT. (Orig. Defendant) VERSUSSakharam Dagadu Zambre,Deceased Through L.R.s.1) Gangadhar Sakharam Zambare Age : 55 years, Occ. Labour, R/o; Chinchvihire, Tq. Rahuri, District : Ahmednagar.2) Rajendra Sakharam Zambre, Age; 53 years, Occ; Labour, R/o; Mohewadi, Tq.Dhule, District : Dhule.3) Gorak Sakharam Zambre, Age : 51 years, Occ : Labour, R/o : Golewadi, Tq.Karhad, District : Satara. ...RESPONDENTS. (L.R.s, of Orig. Plaintiff)…………….Mr.N.B. Patekar : Learned Advocate for AppellantMr.R.B.Temak : Advocate for Respondents…………... 2 sa549.17 judgment CORAM : S. G. CHAPALGAONKAR, J. Date : 03.03.2025JUDGMENT :1.Appellant (Original Defendant) impugns judgment anddecree dated 03.05.2017 passed by learned District Judge-7,Ahmednagar in Regular Civil Appeal No. 459 of 2014, therebyupholding judgment and decree dated 04.10.2014, passed by CivilJudge, Junior Division, Rahuri in Regular Civil Suit bearing No. 392of 2006.2.Respondent/Original Plaintiff instituted RCS No. 392 of2006 seeking relief of redemption of mortgage in respect of landbearing Block No. 789, ad-measuring 1 H 21 R, situated at villageDevlali Pravara, Tq. Rahuri, District Ahmednagar. Plaintiff contendsthat suit land is his ancestral property. He was in need of money forhis domestic difficulties, therefore, he approached defendant toadvance amount of Rs. 3,500/- and executed registered documentdated 04.05.1970, in form of mortgage by conditional sale. Period ofmortgage was 12 years against mortgaged amount of Rs. 3,500/-.Possession was handed over to defendant. Defendant had agreed thatplaintiff can redeem mortgaged property by making re-payment ofmortgage money of Rs. 3,500/- within 12 years. After expiry of 12years, plaintiff offered amount of Rs. 3,500/- to defendant but heavoided to receive the same. Lastly, plaintiff issued legal notice on16.08.2006 to defendant calling upon him to receive mortgage amount 3 sa549.17 judgmentand to execute redemption of mortgage. However, on 31.08.2006defendant gave false reply and refused to redeem mortgage and tohand over possession of suit property.3.Defendant refuted plaintiff’s claim contending thatplaintiff proposed him to sell suit land with condition of re-purchase.Accordingly, he purchased suit land for a consideration of Rs. 3,500/-under registered document of sale, with condition of re-purchase. Indifference to said document, he was put into possession. Plaintifffailed to re-purchase suit land from defendant by making payment ofRs. 3,500/- within 12 years. Eventually, sale became absolute.Plaintiff’s claim that transaction was mortgage by conditional sale isfalse. Plaintiff or anybody from his family never offered repayment ofamount within stipulated period. Suit is filed beyond period oflimitation. According to defendant, he gave reply to plaintiff’s noticedated 16.08.2006. Inadvertently, he used word mortgage in his reply,although, transaction was of sale with condition of re-purchase.4.Trial Court framed issues, recorded evidence of partiesand concluded that transaction between parties was mortgage byconditional sale, finally decreed the suit for redemption of mortgage.In appeal by defendant, learned District Judge concurred withfindings of trial Court and confirmed decree. Hence this SecondAppeal.5.Mr. M.B. Patekar, learned Advocate appearing for 4 sa549.17 judgmentappellant/defendant vehemently submits that Courts below haverecorded perverse finding that transaction between parties wasmortgage by conditional sale. According to him, document is clearlytitled as sale-deed with condition of re-purchase. Relation of creditorand debtor is not discernible from document. It no where suggeststransfer of land was by way of security to loan. Since plaintiff failed toabide by condition of repayment of consideration amount and get saledeed executed in his favour within stipulated period, the sale attainedfinality. Plaintiff has lost his right of re-purchase in terms ofagreement. He would further submit that suit is clearly barred bylimitation. No relief could have been granted in favour of plaintiff. Insupport of his contention he relies upon following reportedjudgments :“(i) Suraj Narain Kapoor and Others Vs. Pradeep Kumar& Others,1(ii)Vanchalabai Raghunath Ithape (Dead) by Lrs. Vs. Shankarrao Baburao Bhilare (Dead) by Lrs. & Others,2(iii)Tamboli Ramanlal Motilal (Dead) Vs. Ghanchi Chimanlal Keshavlal (Dead) by Lrs. & Another,3(iv)Nana Tukaram Jaikar Vs. Sonabai & Others, 4(v)Vamanrao Sawalaram Bhosale & Others Vs. Vithal Tukaram Kadam & Another,5(vi)Dharamji Shankar Shinde & Others Vs. Rajaram Shripad Joshi (Dead) Through Lrs. And Others,6(vii)Sopan (Dead) Through his Lrs. Vs. Syed Nabi, 7(viii) Chunchun Jha Vs. Ebadat Ali and Another.8”6. Per-contra, Mr. R.B.Temak, learned Advocate appearing for1 2017 SCC Online SC 1246,2 (2013) 7 SCC 173,3 AIR 1992 SC 1236,4 AIR 1982 Bombay 437,5 2006( 1) Mh.L.J. 867,6 2019) 8 SCC 401,7 (2019) 7 SCC 635,8 AIR 1954 SC 345. 5 sa549.17 judgmentrespondent/plaintiff supports impugned judgment and decree.According to him, title of document is not of any significance to decidenature of transaction. Intention of parties has to be gathered havingregard to contents of document and attending circumstances. Bothfact finding Courts concurrently held that transaction between partieswas mortgage by conditional sale. According to him, no substantialquestion of law arises for consideration in this appeal. In support ofhis contention he relies upon following judgments :“(i)Vishwanath Dadoba Karale Vs. Parisa Shantappa Upadhye,9(ii)Lohia Sheet Products Vs. Commissioner of Customs,10(iii)Patel Ravjibhai Bhulabhai (Dead) Through Lrs. Vs. Rahemanbhai M. Shaikh (Dead) Through Lrs.,11(iv)Vithal Tukaram Kadam and Another Vs. Vamanrao Sawalaram Bhosale and Others, 12(v)Ganpati Babji Alamwar (Dead) by Lrs. Vs. Digambarrao Venkatrao Bhadke, 13(vi)Sushilabai Radhakisan Bhagwat and Others Vs. Laxman Balwant Kalaskar, 14(vii)Madhavan Nair Vs. Bhaskar Pillai (Dead) by Lrs.”157.Having considered submissions advanced, apparentlycontroversy between parties revolves around interpretation ofregistered document dated 04.05.1970 executed by plaintiff in favourof defendant. Plaintiff is coming with a case that intention of partieswas to create mortgage with conditional sale, whereas, defendantcontends that it was absolute sale with condition to re-purchase. So9 (2008) 11 SCC 504 10 (2008) 11 SCC 510 11 (2016) 12 SCC 21612 (2018) 11 SCC 17213 (2019) 8 SCC 651,14 2005 (4) LJSOFT 16515 2003 SCC Online SC 889 6 sa549.17 judgmentas to decide nature of transaction between parties, following contentsof documents are relevant. Firstly, document is titled as sale withcondition to re-purchase. It stipulates as under :“‘krZ [kjsnh[kr ekSTks nsoGkyh ;sFkhy tehuhps :i;s rhu gtkj ikp’ksps :-3500@& rkjh[k 04-05-1970 eqnr o”kZ 12—“.kyky larjke esanqz jk- nsoGkyh & fygwu ?ks.kkjl[kkjke nxMw >kacjs jk- EkkSts fpapfoghjs & fygwu ns.kkjdkj.ks ‘kRkZ [kjsnh[kr fygwu nsrks dh es- lc jftLVªkjlkgsc jkgwjh ;kaps le{kjks[k :i;s rhu gtkj ikp’ks ‘ksrhps [kPkkZdjhrk ikoys rdzkj jkfgyh ukgh- ;k :i;k,soth ek>s oMhykthZr ekydh ofgokVhph tehu lnjps :i;kl ‘krZ [kjsnh nsrks rhrqdMh vgenuxj iksV rqdMh o rkyqdk jkgqjh iSdh nsoGkyh ;k xkops f’kokjkrhytehu ljdkjh ftjk;rlOgsZ dz- 194@2 iSdh if’pesdMhy 2 ,dj 17 xqaBs]iqosZl & lOgsZ dz- 194@2 iSdh] nf{k.ksl lOgsZ dz- 189] if’pesl lOgsZ dz- 192vkf.k mRrjsl lOgsZ dz- 193@3 tehu nljps :i;kr ‘krZ [kjsnh nsmu vkt jksthtehu rqeP;k rkC;kr fnyh vkgs- rjh lnj tehuhpk ljdkj lkjk nsr tkok- lnjPksnLr,sotkph v’kh ‘krZ vkgs dh] rqeps :i;s lkMs fru gtkj vkt iklwu ckjko”kkZP;k vkr nsowu eh vkiyh tehu lksMwu ?ksbZu- tj rls ukgh dsys rj gs dk;e[kjsnh [kr letwu ofgokV o miHkksx ?ksr tkok- rqeps ofgokVhl o miHkksxkldks.kkph gjdr vkY;kl R;kps fuokj.k dh djhu- rqEgkl rks”khl ykxw ns.kkj ukgh-gs ‘krZ [kjsnh [kr fygwu fnys-”Translated as :“Conditional Sale Deed of the land at village Devlali for theconsideration of Rs. Three Thousand Five Hundred only, Rs. 3,500/-dated 4-5-1970 for the term of 12 years.[BETWEEN]Krishnalal Santram Mendru, R/o Devlali---- First PartyANDSakharam Dagdu Zambre, R/o Chinchvihire --- Second PartyThe Second Party do hereby executes this Conditional SaleDeed that, Received Rs. Three Thousand Five Hundred for theagricultural expenes in presence of the Hon’ble Sub-Registrar, Rahuriand no grievance remained. In lieu of the money, I sell the land oncondition, that is ancestral one and under my easement. The land is apart and parcel of the Registration District of Ahmandnagar,Registration Sub-District of Rahuri Taluka and within the vicinity ofDevlali village, bearing Agricultural Land Survey No. 194/2admeasuring 2 Acres and 17 gunthas and [the land is bounded by]Towards East- Survey No. 194/2 Part, Towards South- Survey No.189, Towards West- Survey No.192 and Towards North- Survey No.193/3. The possession of the land is handed over to you onconditional sale against the consideration [above mentioned]. You 7 sa549.17 judgmentshall pay the agricultural cess [henceforth]. The condition of the saleis that, I shall repay your Rs. Three Thousand and five hundred toyou within 12 years from today and then get the land released fromyou. If I fail to do so, treat this conditional sale deed as a perpetualsale deed and enjoy the fruits of land and easementary rights. I shallbe responsible for removing obstacle, if any, created by anyone foryour enjoyment and easement of the land without any cost to you.Hence this Conditional Sale Deed.”8.Plain reading of aforesaid document shows that plaintiff isan agriculturist. He obtained amount of Rs. 3,500/- for agriculturalexpenses from defendant and handed over possession of 2A 17R landto defendant. In last 3 lines, plaintiff stated that after repayment ofamount of Rs. 3,500/-, within a period of 12 years, he shall redeemhis land, however, on failure, it would be absolute sale. There is nocondition that plaintiff would re-purchase land, but he would redeemland by repaying advanced money within a period of 12 years.Therefore, although first part of document stipulates that it isconditional sale, there is no condition of re-purchase. The conditionis for redemption after paying money.9.One more glaring fact surfaced on record is that whenplaintiff issued notice dated 16.08.2006, calling upon defendant toaccept money and redeem the mortgage, he replied on 31.08.2006,stipulating that “it was a mortgage, however, because of non refund ofmortgage money, right of redemption has been elapsed as timebarred, hence, defendant acquired absolute title of suit property.”10.Mr. M.B. Patekar, relied upon various judgments, whichare decisions on its own facts and reiterates that clauses of deed 8 sa549.17 judgmentconsistent with expressed intention of making transaction, is to begathered from contents of documents and surroundingcircumstances. In case of Dharmaji Shinde (supra), Supreme Courtobserved in paragraph No. 13 reads thus :“As per the proviso to Section 58 (c), if the sale andagreement to repurchase are embodied in theseparate documents then the transaction cannot bea “mortgage by conditional sale” irrespective ofwhether the documents are contemporaneouslyexecuted; but the converse does not hold good.Observing that the mere fact that there is only onedocument, it does not necessarily mean that it mustbe a mortgage and cannot be a sale.”11.In case Chun Chun Zha Vs. Ebadat Ali (supra),Constitutional Bench of Supreme Court, it is observed in paragraphNo. 5 reads thus :“5.The question whether a given transaction is amortgage by conditional sale or a sale outright witha condition of repurchase is a vexed one whichinvariably gives rise to trouble and litigation. Thereare numerous decisions on the point and muchindustry has been expended in some of the HighCourts in collating and analyzing them. We thinkthat is a fruitless task because two documents areseldom expressed in identical terms and when it isnecessary to consider the attendant circumstancesthe imponderable variables which that brings in itstrain make it impossible to compare one ease withanother. Each must be decided on its own facts.But certain broad principles remain.”12.In case of Ganpati Babji (supra) Supreme Court observedin paragraph No. 12. Paragraph No. 12 reads thus : 9 sa549.17 judgment“An agriculturist will normally not so easily disposeof his agricultural land, the source of his survivaland livelihood merely for purchases made by himon credit. The dire financial straits of the plaintiffsare evident from the fact that they were left with nooption but to mortgage 2 & ½ ac of theiragricultural lands for credit purchase of dailynecessities.”13.Looking to the aforesaid observations and expositions oflaw, concurrent findings recorded by Courts below appears to be inconsonance with legal position that holds field. Apparently, title ofdocument is not decisive or significant to decide nature of transaction.Intention of parties can be gathered only on basis of stipulation andother surrounding circumstances. In present case, construction ofdocument nowhere suggest that plaintiff wanted to transfer his landreserving rights to re-purchase same by repaying considerationamount. What transpires is that plaintiff was in dire need of money tosatisfy his agriculture expenses. He put defendant in possession ofland reserving his rights of redemption by making re-payment ofadvances within a period of 12 years. Document nowhere suggestthat plaintiff reserved his right to re-purchase or defendant agreed toexecute sale deed in favour of plaintiff after receipt of sum, equal tothe consideration amount. Apart from contents of document inresponse to legal notice, defendant has clearly stated that mortgagedeed was executed between parties and plaintiff failed to redeem hisland within stipulated period, which suggests that transaction wasmortgage by conditional sale and not sale with condition of re-
Decision
10 sa549.17 judgmentpurchase. No perversity can be found in interpretation adopted byCourts below. In that view of the matter, no substantial question oflaw arises for consideration in this appeal. The Second Appeal standsdismissed.14.In view of dismissal of Second Appeal, pending CivilApplications stand disposed off. ( S. G. CHAPALGAONKAR ) JUDGEmahajansb/15.After pronouncement of judgment a request is made tocontinue interim relief, since the appellant wish to approach Hon’bleSupreme Court.16.Considering request advanced and nature of dispute,interim relief as granted earlier shall remain in force for a period offour weeks from today. ( S. G. CHAPALGAONKAR ) JUDGEmahajansb/