SA 375.05 Second Appeal No.375 of 2005 (Ambika Prasad and four others versus Shri Bhanu Pratap and another) 04-04-2013 Shri A.L.Patel, learned counsel for the appellants.
Shri Praveen Mishra, learned counsel for the respondents.
Heard.
“1.
Whether the learned Additional District Judge is unjustified in reversing the judgment and decree of the Trial Court and holding the disputed transaction to be that of our and out sale.”
2. Whether the learned Additional District Judge is unjustified in holding the suit to be beyond the prescribed period of limitation?.”.
On these substantial questions of law, the appeal at the instance of plaintiffs had been admitted for hearing.
However, before dwelling thereon, the applications filed during the pendency of this appeal are taken up for consideration.
Vide I.A.No.4907/2005, the appellants seek amendment in the suit plaint to the extent that the suit plaint may be allowed to be titled as “Suit for redemption of Mortgage deed”.
and to add a relief in paragraph 14 that since instrument dated 13-05-1976 was a mortgage deed and not a sale deed it be declared null and void.
After hearing the counsel this Court is of considered opinion that the appellants/plaintiffs' application be allowed as it does not change the nature of the suit as apparent it is from the order sheet dated 03-10-2003 that additional issue as to whether the instrument dated 23-05-1976 executed by the mother of plaintiff was a mortgage by conditional sale was SA 375.05 framed with the consent of the parties.
The parties thus led their evidence and contested the matter qua whether the instrument dated 23-05-1976 was a mortgage by conditional sale.
Thus no additional evidence would be required even if the amendment in cause title and the relief clause is allowed.
Let the amendment as sought for be carried out in the suit plaint.
As to I.A.No.1499/2005 which is an application under Order 41 rule 27 of the Code of Civil Procedure, 1908 whereby the appellants/plaintiffs propose to bring on record the copy of sale deed dated 24-11-1966 of the land adjoining the suit land.
The same shall be taken into consideration at the relevant stage.
With consent of learned counsel for the parties, appeal is heard finally.
The parties will be referred to as plaintiffs and defendants throughout the judgment.
Sale deed dated 13-05-1976 executed by Mst.
Gangobai [mother of Ambika Prasad, plaintiff No.1 and Mahesh Prasad (defendant No.2)].in favour of Bhanu Pratap (defendant No.1) led to sale of land bearing KhaSr.No.11/1 admeasuring 1.862 hectare situate at village Nigwani, Patwari Circle No.52, Number Bandobast 762, tehsil Sehora, for a sale consideration of Rs.4,000/-.
That the parties are in close relation to each other being the legal heirs of Late Jagdamba Prasad and Late Amrit Lal, who were brotheRs.The suit for declaration that, the sale deed in question was a mortgage by conditional sale was brought by the SA 375.05 plaintiffs on the pleadings that being in the dire need of money to purchase seed and fertilizer the land was mortgaged for an amount of Rs.4,000/- with an understanding that the same will be returned and during said period the crop shall be reaped by defendant No.1 in lieu of interest.
Admittedly, no separate agreement was entered into between the parties and as pleaded it was an oral agreement.
Be that as it may.
The transaction led to execution of sale deed in question duly registered in the Office of Sub-Registrar on 13-05-1976 recording an absolute sale.
It was contended that the market price of the land in question was much higher but since the property was mortgaged lesser amount as was required was obtained and land was kept as security.
It was further contended that the possession of the land was also retained by the plaintiffs except the tilling right.
Defendant No.1 denied the allegation that the land was purchased in lieu of the loan as a security.
It was also denied that the purchase was at a lesser than market price.
It was denied that the defendant had only the titling right and that the possession of land in question reverted to the plaintiffs.
Besides other issues, issue No.1 and 8 which goes to the root of the controveRs.related to :- (1) D;k fook- laifRr fLFkr xzke fuxokuh [k- ua- 11@1 ds laca/k esa oknh dz--1].izfr- dz--2 egs'k ,oa xaxks ckbZ }kjk izfr- dz- -1 Hkkuw izlkn ds i{k esa fu"ikfnr fodz; i= fn- 13-5-76 voS/kkfud vd`r ,oa 'kwU; gS+ ?.
(8) (vfrfjDr okn iz'u) :- D;k oknh dz--1 ,oa izfr- dz--2 egs'k rFkk mldh ekW xaxks ckbZ }kjk izfr- dz--1 ds i{k esa fu"ikfnr fodz; i= fn- 13-5-76 l'krZ fodz; }kjk ca/kd gS ?.
The trial Court while upholding that the instrument dated 13-05-1976 was a sale deed; however, upon the oral SA 375.05 evidence that it was a mortgage by conditional sale and by taking into consideration the fact that no immediate action was taken by the defendant No.1 for getting the land mutated in his name and that the rates of land in the vicinity were higher than the amount tendered in lieu of the land in question upheld the claim of plaintiffs and non-suited the defendants by judgment and decree dated 30-04-2004.
The FiRs.Appellate Court in an appeal by defendant No.1 reversed the judgment and decree by the trial Court on the findings that the instrument in question recorded on outright sale and the oral evidence was not convincing not were corroborative that it was mortgage by conditional sale.
The FiRs.Appellate Court further recorded a finding that the vendors were within their right to sell the property and that subsequent entry in the revenue records did not create any right in favour of the plaintiffs.
Further on the findings that the sale vide sale deed dated 13-05-1976 was not a mortgage and the challenge having not been made within three years as required under Article 59 of the Limitation Act, 1963 the suit was barred by time.
On these findings the FiRs.Appellate Court non-suited the plaintiffs.
Evidently, sale deed dated 13-05-1976 records in unequivocal terms the sale of suit property which being for a consideration of Rs.4,000/- is compulsorily registrable as required under section 17 of the Registration Act, 1908 and is registered with the Deputy Registrar in accordance with law.
No material is brought on record that any other agreement has been entered into between the parties SA 375.05 recording contrary intentions than the sale deed dated 13-05-1976; burden thus heavily lay on the plaintiffs to have dislodged that though nomenclatured as sale, in fact the transaction witnessed by the instrument dated 13-05-1976 was in fact a mortgage by conditional sale (please see Bhaiyalal and another versus Kishorilal and others :
1950. NLJ 390).Even if oral evidence is admissible, it should not be slippery and must be convincing.
Sale deed dated 24-11-1966 has been filed vide Application under Order 41 Rule 27 to substantiate the price factor.
Vide said sale deed dated 13-05-1976 17.67 acres of land has been sold for a consideration of Rs.36,500/- which comes to approximately Rs.2065/- per acre.
In absence of cogent evidence on record suggesting contrary intention than the recital in sale deed, a stray sale deed indicating the sale of land at a higher price would not be an indicia that a lesser consideration would tantamount to a mortgage by conditional sale.
Proviso to clause (c) of Section 58 of the Transfer of Property Act stipulates 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.”
In Raj Kumar Bai v.
Durga Prasad : AIR 200.M.P.218 at page 220 it is observed :- “In view of the aforesaid definition to hold a transaction to be a mortgage by conditional sale, it is a condition precedent that the condition relating to re-sale of the property must be inserted in the sale-deed itself by which the mortgagor created the mortgage of the property with mortgage.
In the lack of such condition in the sale-deed or SA 375.05 the document of transfer, on the basis of subsequent or the separate agreement, such transaction could not be treated to be a mortgage by conditional sale.
Contrary to such statutory provision, either on the pleadings or the evidence of the parties aforesaid transaction could not be held to be a transaction of mortgage by conditional sale.”
Thus, it is imperative for the executor(s) of an instrument to prove that it was not for what is written but was meant for something different.
In the case at hand no material is commended at to demonstrate the circumstances preventing the plaintiff in making an endorsement in the instrument dated 13-05-1976 that the land mentioned there is transferred as a security towards the loan.
Therefore, in absence of cogent, convincing oral evidence suggesting contrary to terms of sale deed dated 13-05-1976, the trial Court grossly erred in returning a finding that the sale vide sale deed dated 13-05-1976 was a mortgage by conditional sale.
The FiRs.Appellate Court is thus justified in reversing the finding.
In view whereof the substantial question of law is answered in favour of the defendant No.1 that the Fist Appellate Court did not err in law in holding that the instrument dated 13-05-1976 is a sale deed and not mortgage by conditional sale.
Regarding the substantial question of law as to whether the suit by plaintiff was barred by law.
Since the instrument dated 13-05-1976 is a sale deed, for negating the same the suit ought to have been filed within the period prescribed under Article 59 of 1963 Act i.e.within three yeaRs.Whereas, the suit was filed much beyond said period.
SA 375.05 In view whereof the second substantial question of law is also answered against the plaintiffs and in favour the defendant No.1.
In view whereof the judgment and decree dated 31-01-2005 passed by the Additional District Judge, Sehora, in Regular Civil Appeal No.38-A/2004 is upheld.
In the result, Second Appeal is dismissed with costs.
(SANJAY YADAV) sc JUDGE