2014(5) ALL MR 632
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
T.V. NALAWADE, J.
Shankar s/o. Ganpat Thorat Vs. Haribhau s/o. Patilba Wakchoure (D) through LRs.
Second Appeal No.1258 of 2005
10th March, 2014
Petitioner Counsel: Mr. B.R. WARMA
Respondent Counsel: Mr. S.T. SHELKE
Transfer of Property Act (1882), S.58(c) - Evidence Act (1872), S.114 - Redemption of mortgage - Suit for - Plaintiff mortgaged property to defendant by registered document of mortgage by conditional sale - Documents as well as evidence on record shows that it was mortgage and no adverse inference can be drawn against plaintiff u/s. 114 of the Act - Plaintiff entitled for redemption of mortgage. (Paras 12, 14, 15)
Raj Kishore Vs. Prem Singh and Ors., 2011 ALL SCR 1 =2011 (3) Mh.L.J. 1 [Para 6]
Bhaskar Wman Joshi Vs. Shrinarayan Rambilas Agarwal, AIR 1960 SC 301 [Para 6,8]
Tamboli Ramanlal Motilal Vs. Ghanchi Chimanlal Keshavlal, AIR 1992 SC 1236 [Para 7]
Nana Tukaram Jaikar Vs. Sonabai w/o. Madhav Saindare and Others, 1982 (1) Bom. C.R. 811 [Para 7]
Vishwanath Dadoba Karale Vs. Parisa Shantappa Upadhye, 2008 ALL SCR 1346 =2008 AIR SCW 3473 [Para 9]
Vidhyadhar Vs. Mankikrao and Another, AIR 1999 SC 1441 [Para 15]
JUDGMENT :- The appeal is filed against judgment and decree of R.C.S. No. 159/1987 and also against judgment and decree of R.C.A. No. 818/2000. The suit was filed by present respondent for redemption of mortgage in the Court of Civil Judge, Senior Division, Akole and it is decided in his favour. The decision of the Trial Court is confirmed by the First Appellate Court - District Judge, Sangamner. Both the sides are heard.
2. It is the case of respondent/plaintiff that Survey No. 73 situated at Virgaon, Tahsil Akole, District Ahmednagar, admeasuring 2.26 Hectors belongs to him and it was mortgaged by him to the appellant/defendant by the registered document of mortgage by conditional sale on 27.2.1969. It is contended that plaintiff was in need of money for the marriage of his daughter and so, he mortgaged the land for the consideration of Rs. 5,000/-. It is contended that in the year 1987 he requested the defendant to give back the land by accepting mortgage money, but defendant refused to do so. It is the case of plaintiff that the consideration was taken as loan amount by him and land was given by way of security and so, he is entitled to relief of redemption.
3. The defendant filed written statement and he denied that the transaction was of mortgage. It is the case of defendant that it was out and out sale. It is contended that there was no relationship of creditor and debtor between him and plaintiff. It is contended that right was given to the plaintiff to repurchase the land within three years mentioned in the document and after that no right is left with plaintiff. It is contended that the suit is time barred. It is his case that he has spent amount of Rs. ten to twelve thousand for improvement of the land and so, the plaintiff is falsely contending that the transaction was of mortgage. During the pendency of the suit, plaintiff/mortgagee died and his legal heirs prosecuted the matter. They did not give oral evidence and they relied only on the contents of the document. The defendant examined himself.
"[i]Whether the document (Exh-34) is a mortgage by conditional sale or it is a sale with condition to repurchase the property ?
[ii]Whether the finding of both the courts below that there was admission of the present appellant about his status as a mortgagee can be said to be perverse, when in proof of such admission, copy of the plaint in earlier suit was not purchased ?"
5. Both the sides have cited some reported cases on the point of interpretation and use of section 58 (c) of Transfer of Property Act ('T.P. Act' for short). Section 58 (c) of T.P. Act runs as under :-
"58. Mortgage by conditional sale.- (c) Where the mortgagor ostensibly sells the mortgaged property--
on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or
on condition that on such payment being made the sale shall become void, or
on condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
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."
6. In the case reported as 2011 (3) Mh.L.J. 1 : [2011 ALL SCR 1] [Raj Kishore Vs. Prem Singh and Ors.], the Apex Court has discussed the provision of section 58 (c) of T.P. Act and it is laid down that to constitute mortgage by conditional sale, it is necessary that the condition mentioned in this section is embodied in the document that purports to effect the sale. It is observed that the requirement stipulated by the proviso which admits of no exceptions. There cannot be dispute over this proposition. In the case reported as AIR 1960 SUPREME COURT 301 [Bhaskar Wman Joshi Vs. Shrinarayan Rambilas Agarwal] similar observations are made.
7. In the case reported as AIR 1992 SUPREME COURT 1236 [Tamboli Ramanlal Motilal Vs. Ghanchi Chimanlal Keshavlal], the Apex Court has laid down that when there is dispute about the nature of document like the present case, one should be guided by the terms of document alone without much help from case law. It is laid down that case law could be referred for the purpose of interpreting the particular clause to gather intention. It is laid down that 'title' alone of the document is not conclusive of the matter. The facts of this reported case shows that the document was titled as 'deed of conditional sale'. In the case reported as 1982 (1) Bom. C.R. 811 [Nana Tukaram Jaikar Vs. Sonabai w/o. Madhav Saindare and Others], in view of the facts of the case, this Court held that transaction was of sale with condition of repurchase. Similar observations were made by Apex Court in the case of Tamboli cited supra.
8. In the case of Bhaskar cited supra, the Apex Court has laid down that the intention needs to be ascertained mainly from the contents of the document. It is observed that the evidence of contemporaneous conduct is always admissible as a surrounding circumstance; but evidence as to subsequent conduct of the parties is inadmissible. The provision of section 92 of Evidence Act creating bar to the oral evidence in such a case is discussed by the Apex Court in this context.
9. In the case reported as 2008 AIR SCW 3473 : [2008 ALL SCR 1346] [Vishwanath Dadoba Karale Vs. Parisa Shantappa Upadhye], which was cited by the learned counsel for respondent, in view of the contents of document and surrounding circumstances, the Court held that it was mortgage transaction and the document was titled as 'conditional sale'.
10. There cannot be dispute over the propositions made by the Hon'ble Apex Court and the guidelines given to construe such document. Thus, the Court is expected to see the document first. If the contents of the document are sufficient to draw inference about the intention, then the other circumstances cannot be given much weight. However, when the intention cannot be gathered from the document itself, there is ambiguity, then surrounding circumstances need to be considered. In such cases the title though not conclusive, plays significant role. The contents need to be construed as per language, specific words used in that region for particular transaction. Normally in this region, when there is mortgage, the term in Marathi is used as 'eqnr [kjsnh', - 'conditional sale'. The term 'lksMfo.ks' is used for the word 'redemption'.
(i) 'Title' is 'eqnr [kjsnh[kr fojxko ;sFkhy tehuhps 5000 :i;sps eqnr o"kZ ikp ps rkjh[k 27-2-1969' - "Conditional sale of land from Veergaon for Rs. 5000/- and of term five years"
(ii) 'dkj.ks eqnr [kjsnh[kr fygqu nsrks dh]' - "The executor executes conditional sale as under,"
(iii) For consideration of Rs. 5000/- I am executing conditional sale
(iv) The land is given in possession today under conditional sale
(v) 'vktiklwu ikp o"kkZr dsOgkgh nsoqu tehu lksMoqu ?ksbZu- ' - "From today within five years I will get redeemed the land".
(vi) 'eqnrhr :i;s u fnY;kl eqnrhuarj ek>k vxj okjlkapk gDd jkg.kkj ukgh- eqnrhuarj rqEghp iq.kZ ekyd Ogky' - "If the amount is not paid within prescribed period, the transferee will become absolute owner and executor will have no right in respect of the land."
(i)On the date when the document was executed I did not become owner and I was to become owner after five years from the date of execution.
(ii)It is correct to say that for consideration of Rs. 5000/- the land was given by way of security.
14. Thus, the admissions are sufficient to show that the intention of the parties was to create a document of mortgage and not a document of absolute sale. Thus, from the document and also from the admissions given by the defendant, only one inference that of mortgage is possible. Both the Courts below have not committed error in drawing such inference.
15. The learned counsel for the appellant placed reliance on the case reported as AIR 1999 SUPREME COURT 1441 [Vidhyadhar vs. Mankikrao and Another]. In this case, the Apex Court has discussed the provision of section 114 of Evidence Act. In view of the facts of that case, the Apex Court observed that adverse inference was necessary against one party who had not entered the witness box. The facts were totally different. Specific defence was taken by party that transaction in question was bogus transaction and so, the Apex Court made such observations. The facts of the present case are altogether different. It is already observed that in such a case, the intension of the parties needs to be inferred mainly from the contents of the document. In the present case, the intention of mortgage can be easily inferred and so, the Court cannot draw adverse inference against the plaintiff. Section 114 of Evidence Act gives discretionary power to raise the presumption.
18. Learned counsel for the appellant submitted that the appellant has been in possession since long. He requests for time of four weeks as the appellant wants to challenge decision given by this Court. Other side is present. He is heard. He opposed the prayer. In view of the facts and circumstances, time of four weeks is given.