2011(3) ALL MR 262
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.P. DAVARE, J.

Vitthal Maharu Patil(Since Deceased Through His L.Rs.) Vs.Fakira Bhavsing Patil(Died, L.Rs.)

Second Appeal No.413 of 1989

15th February, 2011

Petitioner Counsel: Shri. L. V. SANGIT,Shri. V. J. DIXIT
Respondent Counsel: Shri. S. V. CHANDOLE,Shri. V. G. SAKOLKAR

Civil P.C. (1908), Ss.96, 100 - Second appeal - Reasoning adopted by First Appellate Court while allowing the appeal and thereby reversing the judgment rendered by Trial Court, not faulted with - Second appeal, therefore, liable to be dismissed. (Paras 14, 15)

Cases Cited:
Umabai Vs. Nilkanth Dhondiba Chavan by L.Rs., 2005(4) Mh.L.J. 306 [Para 12]
Raj Kishore by L.Rs. Vs Prem Singh, (2011)1 SCC 657 [Para 13]


JUDGMENT

JUDGMENT : - Heard learned counsel for the respective parties.

2. This Second Appeal is directed by the appellants i.e.original plaintiffs against the judgment and order dated 15.1.1987, rendered by the learned Additional District Judge, Jalgaon, in Regular Civil Appeal No.373 of 1981, allowing the said appeal and thereby reversing the judgment and decree passed by the learned Civil Judge, Junior Division, Parola on 31.8.1981 in Regular Civil Suit No.46 of 1975. The appellants herein are the legal heirs of the plaintiff and the respondents herein are the legal heirs of the defendant. The parties are herein after referred as per their original status i.e. the plaintiff and the defendant.

3. The plaintiff filed the suit before the learned Civil Judge, Junior Division, Parola for the possession of the suit house and for retransferring the suit property to him. The plaintiff came with the case that the Grampanchayat House No.214, situated at village Ratna Pimpri, Taluka Parola, District Jalgaon is owned by the plaintiff. In January, 1963, he was in need of money, and hence, he demanded amount of Rs.1,000/- from the defendant. However, the defendant had no money lending license, hence, the defendant asked the plaintiff to execute the mortgage of plaintiffs property in favour of the defendant for Rs.100/-, so that he can advance Rs.1000/- to him. Since, the plaintiff was in need of money, he agreed to the same. However, it is contended that there was difficulty of mortgage, and hence, the sale deed of the suit property was executed in favour of the defendant for Rs.1,000/-, but it was decided between the parties that they should not act upon the terms of the sale deed and it was settled between the plaintiff and the defendant that after repayment of Rs.1,000/- to the defendant, the defendant would retransfer the suit property to the plaintiff, and also would deliver the possession thereof to the plaintiff. Accordingly, a receipt was signed in favour of the plaintiff to retransfer the property to the plaintiff after repayment of Rs.1,000/-. Thereafter, the plaintiff delivered the possession of the suit property to the defendant, and accordingly, property is in possession of the defendant. It is also the case of the plaintiff that it was agreed between the parties that the said transaction was not out and out sale.

4. It is further the case of the plaintiff that on 14.2.1975, the plaintiff approached the defendant with the amount of Rs.1,000/- and paid the same to the defendant in presence of one Dara Arjun Patil, Vaman Kalu Patil, Julal Virbhan, Raichand Rupchand Tarachand Budha and Laxman Bandu and requested the defendant to retransfer the suit property. However, the defendant asked time of about 8 to 10 days for the same, since he has no other house for the residence. Accordingly, the plaintiff gave Rs.1,000/- to the defendant and waited for about 10 days on the assurance of the defendant that he would transfer the suit property to him and also would deliver the possession thereof to him. However, it is the contention of the plaintiff that the defendant did not keep his words and did not retransfer the suit property and did not deliver the possession thereof to the plaintiff, and hence, the plaintiff gave notice to the defendant on 25.5.1975, but same was refused by the defendant. Therefore, again on 16.7.1975, the plaintiff served notice on the defendant, but the defendant did not give reply to the said notice and tried to damage the suit property and removed the door causing damage of Rs.100/-. Hence, the plaintiff filed the suit against the defendant for possession of the suit property and for retransfer of the suit property in his favour.

5. The defendant appeared in the suit and resisted the suit claim of the plaintiff by filing written statement and contended that he purchased the suit property for Rs.1,000/- from the plaintiff under the sale deed, and therefore, the question of mortgage and retransfer does not arise. The defendant further stated that since the date of execution of the sale deed, he is in possession of the suit property as the owner thereof. He also denied that he promised the plaintiff to retransfer the property after payment of Rs.1,000/-, as well as he denied that on 14.2.1975 the plaintiff paid Rs.1,000/- to him in presence of afore said witnesses. Accordingly, the defendant urged that the plaintiff's suit is false, and therefore, same be dismissed.

6. Basing upon the rival pleadings, the Trial Court framed the issues and considered the oral and documentary evidence adduced and produced by the parties. The Trial Court on 31.8.1981 decreed the said suit and directed the defendant to hand over vacant possession of the suit house to the plaintiff within one month from the date of the said order, and also directed the defendant to reconvey the suit property in the name of the plaintiff, as well as directed the mesne profits with costs.

7. Being aggrieved and dissatisfied by the said judgment and decree, the defendant preferred Civil Appeal No.373 of 1971 before the District Court, Jalgaon. After reappreciating the evidence and considering the rival submissions advanced by the parties, the learned Additional District Judge, Jalgaon allowed the said appeal and set aside the judgment and decree, passed by the Trial Court and dismissed the suit of the plaintiff by judgment and order dated 15.1.1987. Thus, there are diverse findings of the Trial Court as well as the First Appellate Court and the plaintiff has impugned the judgment and order dated 15.1.1987, rendered by the First Appellate Court in the present Second Appeal.

8. It appears that while admitting the present appeal, notice was issued to the defendant on the question, as to what is the true legal nature and character of the suit transaction, and same can be construed as substantial question of law in the present appeal.

9. On perusal of the record and proceedings and after considering the rival submissions advanced by the learned counsel for both the parties, the crux of the matter is the sale deed Exh.22 dated 16.1.1963 and the receipt Exh.17, and on perusal of the contents of the said sale deed dated 16.1.1963, it is explicitly clear that it does not contain any stipulation of reconveyance and/or recovery of the suit house to the plaintiff on receipt of Rs.1,000/- from the defendant and the contents of the said sale deed are totally silent in that respect, and therefore, the said sale deed dated 16.1.1963 appears to be out and out sale, whereby the suit property was conveyed to the defendant. Admittedly, possession of the suit house was delivered to the defendant on the date of sale deed and there is specific mention thereof in the said sale deed. Pertinently, the plaintiff did nothing till issuance of notice dated 25.3.1975 and the said long passage of possession of defendant is indicative of the fact that there was no money lending transaction between the plaintiff and the defendant as alleged.

10. Coming to the document i.e. receipt dated 16.1.1963 Exh.17, on perusal of the contents thereof, it appears that the suit house was sold by the plaintiff to the defendant for Rs.1,000/- on the condition that if the plaintiff repays the amount of Rs.1,000/- to the defendant, he was to deliver the possession of the suit house without any hesitation/objection. However, it is significant to note that neither there is any stipulation as to at which point of time the said amount of Rs.1,000/- was to be repaid to the defendant, nor any specific time limit has been prescribed in the said document. Moreover, it is apparent that the said sale deed Exh.22 and the receipt Exh.17 appear to have been executed on the same day i.e. 16.1.1963, and therefore, the question arises as to why the said receipt Exh.17 was not prepared on the stamp paper and why it was scribed on a page of note book/exercise book, and why there is no reference of said receipt Exh.17 in the registered sale deed (Exh.22) and all the said questions go unanswered, and therefore, the receipt (Exh.17) comes under the cloud of suspicion.

11. Pertinently, on bare perusal of the said document, it appears that there are two witnesses to the said document Exh.17, but still the plaintiff failed to examine either the attesting witnesses or the scribe to prove the contents of the said document Exh.17, and hence, it is apparently clear that the plaintiff failed to prove the contents of the said document Exh.17, and therefore, the alleged averment in the said receipt Exh.17 in respect of handing over of possession of the suit house by the defendant to the plaintiff on repayment of Rs.1,000/-, has not been proved, and therefore, same cannot be of any aid and assistance to the case of the plaintiff, more particularly, in view of the absence of such recital in the registered sale deed, which was executed on the same day i.e. 16.1.1963.

12. In the said context, the learned counsel for the defendant placed reliance on the judgment of Honble Supreme Court in the case of Umabai and another Vs. Nilkanth Dhondiba Chavan by L.Rs. and another, reported at 2005(4) Mh.L.J.306, wherein it is observed that :

"21. There exists a distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with a condition of repurchase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon. Proviso appended to section 58(c), however, states that if the condition for retransfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. "

13. Learned counsel for the defendant also placed reliance on the judgment of Hon'ble Supreme Court in the case of Raj Kishore by L.Rs. Vs Prem Singh and others, reported at (2011)1 SCC 657, wherein it is observed that :

"15.A bare reading of the above would show that for a transaction to constitute mortgage by conditional sale it is necessary that the condition is embodied in the document that purports to effect the sale. That requirement is stipulated by the proviso which admits of no exceptions.

16. The High Court, it is manifest from the judgment under appeal, overlooked the proviso according to which the condition regarding payment of the mortgage money as a condition for transfer of the property to the seller must be embodied in the sale deed itself. That is not so in the instant case. The sale deed executed by the plaintiff in the instant case does not embody any condition like the one referred to in clause (c) of Section 58 extracted above.

17. The broad statement of law made by the High Court to the effect that every sale accompanied by an agreement for reconveyance of the property will constitute a mortgage by conditional sale is not, therefore, correct. That is also the view taken by this Court in K. Simrathmull Vs. Nanjalingiah Gowder where the plaintiff had borrowed a certain amount from the defendant and in lieu thereof executed a deed of conveyance of certain land together with the house standing thereon in favour of the defendant. Another deed of reconveyance was executed by the defendant on the same date by which the defendant purchaser of the property agreed to reconvey the house provided the exercise of the right of demanding reconveyance took place within two years and rent payable by the plaintiff is not in arrears for more than six months at any time. On the breach of the second condition stipulated by the agreement for reconveyance the defendant purchaser refused to reconvey. In a suit for specific performance the plaintiff sought to invoke the equitable jurisdiction of the Court to give him relief against the forfeiture clause. This Court held that the sale deed and the deed of conveyance and rent were no doubt parts of the same transaction yet the transaction did not constitute a mortgage by conditional sale."

14. In the circumstances, considering the very nature of the registered sale deed Exh.22 and receipt Exh.17 and contents thereof and recitals therein, it is manifestly clear that the true legal nature and character of the said transaction is the out right sale deed and there is no element of reconveyance of the suit property to the plaintiff by the defendant on repayment of Rs.1,000/- and the Rulings cited by the learned counsel for the defendant substantiate the said proposition and the substantial question of law is answered in the afore said terms. Accordingly, the reasoning adopted by the First Appellate Court while allowing the appeal and thereby reversing the judgment rendered by the Trial Court, dismissing the suit cannot be faulted with.

15. In the result, present appeal fails, since it lacks merits, and therefore, same stands dismissed. No costs.

Appeal dismissed.