S.K. Kar, J.
1. Being aggrieved by the order and dissatisfied with the judgment and decree passed by the learned Sub-Judge No. 1, Manipur East, in Original Suit No. 67/86/14/87/7/89/122/90/83/90, this Appeal was presented by Md. Serajuddin, who is the defendant in the Original Suit.
2. The facts, in brief, are as follows : The respondents/plaintiffs, (Plaintiff No. 2, an insane, being represented by his younger brother plaintiff No. 1) instituted the suit in question for a decree of redemption of the Southern half of the land, hereinafter called the 'Suit-land', pertaining to Dag No. 15/2284, Patta No. 181 measuring 0.062 acre in total area situated under Imphal Municipality, M.G. Avenue. The entire Dag stands in the names of plaintiffs and defendant jointly and northern half belongs to the defendant. The plaintiffs state that in the early part of January, 1984 plaintiff No. 1 (respondent No. 1 before this Court) being in need of money for his contract work approached the defendant (appellant before this Court) who is husband of the plaintiffs' sisters daughter for borrowing the money. The defendant taking the advantage of haplessness of the plaintiff induced the plaintiff No. 1 to agree to borrow a sum of Rs. 90,000/- only on his execution of two registered deeds dated 17-1-1984 of usufructuary mortgage in respect of the suit land coupled with an agreement for sale of the land in case he fails to repay the loan within a period of four-months. That plaintiff No. 1 before signing the mortgage deeds was taken to Sangam Restaurant being accompanied by two persons from Sub Registrar's office and another and handed over the drafts of the deeds and after going through them he discovered some mistakes in the recitals of the deeds in so far describing plaintiff No. 2 as 'a minor younger brother' instead of 'insane elder brother' to be represented by next friend and raised objections but considering the fact that parties are closely related and the mistakes will not affect the validity of the deed as assured by the defendant the mistake was over looked. That on 10-5-1984 even before the expiry of the stipulated period of four months the defendant filed an application, registered as Mutation case No. 307 of 1984, for mutation of the suit land in his name before the Court of SDC, Imphal West (C), Manipur and the prayer was granted by the learned SDC vide his order dated 22-5-1984. The said order of SDC was upheld by the SDO and the DC, Imphal, but was set aside by the learned Revenue Tribunal on 18-2-1985. Against the order of the Revenue Tribunal defendant filed a Writ Petition, being Civil Rule No. 62/85, before the High Court, and the Hon'ble High Court passed an interim order directing the mutation to continue till disposal of petition etc.
3. That on 5-7-1986 defendant started constructions over the suit land defying his objection and for that plaintiff instituted another suit. O.S. No. 54 of 1986, with prayer for injunction. Plaintiff asked for redemption of suit land by tendering the mortgage money of Rs. 90,000/- and demanding restoration of possession but defendant was refusing to do so. Hence the Suit. It is in the evidence that plaintiff No. 2 had since died.
4. The present appellant/defendant of the suit contested the suit by presenting his written statement. The allegations against him were denied. It was contended that plaintiff No. 1 for himself and for welfare of plaintiff No. 2 voluntarily executed the two deeds which are the deeds of conditional sale on the condition that on failure to repay the loan amount within four months the transactions will be treated as absolute sale. That defendant after taking delivery of land as per condition in the deeds started enjoying the entire dag land as a compact area on his own right although it was a joint property earlier to that. That he got his name mutated and constructed houses wherein now a hotel is being run by other person. That plaintiffs had lost their rights and had never made any demand for redemption and that plaintiff No. 1 had not come with clean hands as he described plaintiff No. 2 as minor and not insane etc. and accordingly pleaded that in the suit is liable to be dismissed.
5. The learned Trial Court framed. I would say, most mechanically, as many as 13 issues in the suit. In support of these issues plaintiffs examined three witness whereas defendant examined two. Exts., A/1 to A/8 are the documentary evidence by plaintiff and Exts. B/1 to B/6 are the documentary evidence relied upon by the defendant are document which are documents regarding mental treatment of plaintiff No. 2 Abdul Hakim, mortgage deeds, 'jamabandi', copy of judgment of the Revenue Tribunal, orders of the High Court, Executive Magistrate and Addl. Sessions Judge etc. etc.
6. I have heard the learned counsel appearing on both sides. Perused the relevant documents and considered the evidence on record along with the impugned judgment and decree of learned Court below.
7. It appears that the Court has not framed the issues properly and then again, without taking each and every issue separately for discussion had taken all the issues together, on the pretext of 'convenience' for discussion which is not proper. But then, in any case improper framing of the issues alone is not fatal unless prejudice is alleged and shown. This Court as an Appellate Court is at liberty as per the provision of Order 41, Rule 31, CPC to record the points for determination in the appeal which when done will dispense with the defect of the improper framing of the issues by the Trial Court. This Court being the First Appellate Court is also competent as per the provisions of Section 107 read with relevant Rules of CPC to frame issues and decide matters as if it is the Trial Court, AIR, 1986 Cal 430 says inter alia, that Court is required to pronounce judgments on all issues.
8. After hearing the parties and giving my attention to the rival contentions I find that there is no dispute about the identity of the suit land, and the question of incurring loan of Rs. 90,000/-. Equally, there was an inquiry and it was settled that plaintiff No. 2 was an insane at the relevant time and accordingly it was permissible for plaintiff No. 1 of the suit to represent him legally as his next friend being the younger brother. It is also not in dispute that the plaintiffs and defendant are close relations, defendant being husband of the sister's daughter of the plaintiff. It is also not in dispute that 50% of the entire dag land belongs to the plaintiffs and 50% to the defendant as their respective shares. Other issues raised in the pleadings of the parties have almost little or no bearing for the just decision in the suit. The question of insanity of respondent No. 2 was enquired into and finally decided by the Court below and there was no agitation against such decision which has remained in force and binding on the parties. It will be interesting to note that insanity question was raised and agitated by the defendant and in that case any defect, in the connected mortgage deed executed by plaintiff No. 1 for and on behalf of plaintiff No. 2, if found, that will rather deprive the defendant from getting the benefit and thus it is not understood how he was going to benefit by raising such objection.
9. The other questions raised by the plaintiff, by way of amendment of plaint, that he was taken to a Restaurant and he signed the document as drafted by defendant is also irrelevant and unwarranted in view of the fact that the execution of the documents is neither disputed nor denied. Consequently, I find that excepting issues No. 1 and No. 2 along with the relief issue other issues framed by the Court below are unwanted/superfluous having no bearing in the suit and may thus be over-looked. It may be observed here that the very purpose of framing issues is to narrow down differences/disputes between the parties and to come to the real issues of controversial facts. Accordingly, I find that the only issue before Court is regarding the character and nature of the admitted deeds and the consequential relief or reliefs to which plaintiff respondent is entitled.
10. In this context, it may be mentioned here that an application for amendment of the written statement was presented before this Court in Sept. 1998, registered as C. Misc. Case No. 43/98, along with another petition for filing additional documents by the appellant on the strength of Order 13, Rule 2(1) of CPC registered as C. Misc. Case No. 55/98, and vide order dated 29-3-2001 of this Court it was directed that the decision on these matters be deferred till the main hearing of the appeal. I will deal with this aspect at the latter part of this judgment.
11. The main grounds raised by the appellant in this appeal are that Trial Court failed to appreciate relevant law under Section 58 of the Transfer of Property Act, and misconstrued the definition of usufructuary mortgage, failed to take note of Sections 91 and 92 of the Evidence Act in interpreting the deeds in question, and failed to deal with the issues exhaustively. That the decision arrived at was perverse leading to a case of miscarriage of justice necessitating interference by this Court. Learned counsel for the plaintiff/respondents supported the judgment by submitting that there is absolutely nothing to interfere in appeal. Learned counsel appearing for the appellant in support of his arguments referred to law reported as (i) AIR 1986 Cal 431 and (ii) AIR 1973 Gau 43. Learned counsel for the respondents have referred to as many as 20 citations, but stressed mainly upon two of them, viz., (iii) (2000) 4 SCC 326 : (AIR 2000 SC 1935) and (iv) AIR 1954 SCC 345. I have gone through the citations also.
12. It may be noted, at the risk of repetition, by way of refreshing memory here, that the connected mutation case, registered oh 10-5-1984 before expiry of period stipulated in the deeds, was decided by the Original Revenue Court on 22-5-1984 and the decision was upheld by the Sub-Divisional Officer, Imphal/West and the D.C., Imphal, but was set aside by the learned Revenue Tribunal on 18-2-1985 after an exhaustive discussion of the issues raised before it and arriving at a logical conclusion both on facts and law. In the connected writ petition, C.R. No. 62/85 filed by the appellant, however, this Court (in C. Misc. Case No. 32/85) directed that pending final disposal of the Civil Rule 'the name of the petitioner shall not be removed from the records of right if it appear therein'. It is, however, not known what was the final result, of the said Civil Rule.
13. Be that as it may, the real issues or the points for determination in this Appeal are, thus, as follows :
a. Whether the deeds, admittedly executed by the respondent/plaintiff No. 1 in favour of appellant/defendant, are the deeds of mortgage, as claimed by respondent/ plaintiffs, or deeds of conditional sale with stipulation that on failure to repay the amount it will be treated as absolute sale, as claimed by appellant/defendant.
b. Whether the respondent/plaintiff No. 1 is entitled to a decree for redemption of the suit land and consequent restoration of possession on payment of the mortgage money of Rs. 90,000/- etc.
c. To what relief/reliefs parties are entitled
POINT NO. (a)
14. On a close reading of the English translations of the certified copies of the two mortgage deeds (originals are not in record), which are in 'Meitei language' and are identical in nature excepting essential and necessary changes, I find that for the proper appreciation a true translation may be reproduced because the translations adduced by the parties are at variance and at places are incorrect (Particularly insofar copies adduced by defendant). The true English version of disputed deed, Ext. A/5 (corresponding to Ext. B/1) is given as below :
'Know all men by these presents that I, Md. Abdul Khalique, son of late Abdul All of Lilong Bazar, by occupation business, do borrow a sum of Rs. 45,000/- (Rupees Forty five thousand) from Md. Serajuddin son of late Md. Naseruddin of Lilong Turel Ahanbi by occupation business, for insuring the money for the purpose and use of my minor younger brother Abdul Hakim, by mortgaging the southern portion measuring 30 feet from north to south in length and covering the entire breadth of the homestead, out of the homestead-cum-shop site recorded in the names of the mortgagee and my minor younger brother Abdul Hakim as Co-pattadars, situates, within Imphal Municipality, Imphal West Tahsil, bid Patta No. 336 (three hundred thirty six), New Patta No, 181 (one hundred eighty one ) of dag No. 15/2284 having 0.062 acre, of second class category. The mortgaged homestead is the share of my minor younger brother. The period of mortgage will be four months, no interest shall accrue during the period. During the mortgage period, the mortgagee shall pay the revenues/taxes and he will enjoy the usufruct and money by passing it. If the mortgaged money is not repaid within the stipulated period. I shall not have objection in mutating the name of the mortgage according to law. After hearing the reading of this deed under sound mind, I put my signature hereunder on this 17-1-1984 and handed over this deed. Patta has been with the mortgaged land out of the land situates within Imphal Municipality, Imphal West Tahsil, Old Patta No. 336, New Patta No. 181 of dag No. 15/2284 are as follows :
North -- land of the mortgagor
South -- Mahatma Gandhi Avenue
East -- Gali
West -- Homestead of Puran Singh.
Writer : Signature
Shri Thanjam Momon Singh
of Thangmeiband.'
Dated : 17-1-1984.
The other deed in dispute is Ext. A/6 (corresponding to Ext. B/2) which is being not reproduced in this judgment, as felt not necessary.
15. These two deeds in question was executed by the respondent/plaintiff No. 1, Abdul Khalique, as per his contention, as a security against the loan of Rs. 90,000/- in total (i.e. @ Rs 45,000/- by each document) and there was a stipulation that the mortgage is for four months and it will bear no interest and that the mortgagee will enjoy all the benefits of the property during the period of mortgage and will pay all necessary taxes. However, the mortgagor undertook that on his failure to repay the mortgagee/money on expiry of the mortgage period of four months, the mortgaged 'ingkhol' (homestead) if mutated in the name of the mortgagee as per provision of the law he will have no objection. We are required to interpret whether this particular recital/stipulation made in the mortgage deed can logically and factually be taken as an absolute sale or not, under the particular facts and circumstance of the present case. There is no dispute that on the date of the deeds the physical possession of suit land was transferred to the appellant.
16. It will be convenient to refer to the relevant provisions in this context in the Transfer of Property Act (Act IV of 1882, in short, The Act'). With reference to mortgage Act describes, vide Section 58, as many as six types of mortgages, viz.,
(1) Simple mortgage, (2) Mortgage by conditional sale.
(3) Usufructuary mortgage, (4) English Mortgage,
(5) Mortgage by deposit of title deeds and
(6) Anomalous mortgage.
and Sub-clauses (c) and (d) say what are mortgages by conditional sale and usufructuray mortgage. Respondent/plaintiffs claimed the mortgages in question as usufructuary mortgages only. It will be worth remembering here that mortgage is defined in Section 58 of the Act as the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or performance of an engagement which may give rise to a pecuniary liability. Thus, from the definition it will be seen that to be a mortgage it is sufficient that the transfer should be originally intended as security for the debt. In Indian context no particular form of words is necessary for the creation of mortgage. Hon'ble Privy Council laid down the general rule in case of Hunooman Prasad that 'the form of expression, the literal sense, is not be so much regarded as the real meaning of the parties which the transaction discloses.' In each case, whatever be the form of the mortgage, there is a transfer of some interest only and not a transfer of the whole interest of the mortgagor. The debt subsists in a mortgage, while a transaction by which a debt is extinguished is not a mortgage but a sale. The learned counsel appearing for the appellant has relied upon AIR 1973 Gau 43. This Court in that case had held that in case of a controversy as to whether a given transaction is mortgage by conditional sale or a sale outright with a condition of re-purchase, the intention of the parties is to be gathered from the document itself taking the document as the determining factor. For purpose of elucidation. The exact views expressed by Court in para 17 of the citation (supra) goes as below (at page 46-47; of AIR):
'17. The first and foremost thing that requires decision is to find out the intention of the parties from the language that can be gathered from the recitals in the deed itself. If the words are express and clear, effect must be given to them and an extraneous enquiry into what was thought or intended is not permissible. The real question is what is the legal effect of the words used by the parties in the deed. If there is no ambiguity in the language employed in the deed, the intention, that is found from the language without any straining thereof must be given effect to. If, however, there is ambiguity in the language used in the document, then the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be admissible in law to show in what manner the language of the deed was related to the existing facts. Oral evidence is not admissible in interpreting the terms of the deed. Evidence of contemporaneous conduct is admissible as a surrounding circumstance but evidence as to subsequent conduct of the parties is not admissible.'
17. If we go by the recitals in the disputed deeds, we find that all along in the recitals it has been mentioned that the owner of the land was mortgaging the suit land as security for borrowing a sum of Rs. 90,000/-. The only stipulation in favour of the appellant were as follows :
'the period of mortgage will be four months...................................................... If the mortgage money is not paid within the stipulated period, I shall not have objection in mutating the name of the mortgagee according to law.'
Thus, it will be seen that save and except the stipulation that after expiry of four months the mortgagor will have no objection in mutating name of the mortgagee according to law, there is no other statement, whatsoever, to mean that the particular transaction was a sale. This stipulation can reasonably and on basis of case law be held a clog on equity of redemption. It had been the consistent view of the Courts while deciding cases under Transfer of Property Act, particularly in relation to mortgage that there cannot be a clog on the equitable rights of redemption. Section 60 of the Act records the Sanction of Statute to that effect. In the case of Shivdevsingh v. Sucha Singh reported in (2000) 4 SCC 326 : (AIR 2000 SC 1935) (supra) referred by the learned counsel appearing for the respondent/plaintiff, the Hon'ble Apex Court after discussing several case laws on the topic while giving interpretation of Section 60 of the Act observed as below :--
'10. Any provision incorporated in the mortgage deed to prevent or hamper the redemption would thus be void. A mortgage cannot be made irredeemable and the right of redemption, not an (sic) illusory. This Court in Ganga Dhar v. Shankar Lal held :
'The rule against clogs on the equity of redemption is that, a mortgage shall always be redeemable and a mortgagor's right to redeem shall neither be taken away nor be limited by any contract between the parties.
***********
***********
The right of redemption, therefore, cannot be taken away. The Courts will ignore any contract the effect of which is to be deprived the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be a deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagors right to redeem the mortgage after the specified period. This is not permissible, for once a mortgage always a mortgage' and therefore always redeemable. The same result also follows from Section 60 of Transfer of Property Act'
18. It cannot be disputed that whether or not under a particular facts and circumstances a mortgage transaction amounted to clog on equity of redemption, is the mixed question of law and fact and matter is to be examined mainly by scrutiny of the document of mortgage as well as the evidence on record of the accompanying facts and circumstances. In the same judgment the Hon'ble Apex Court referring to the case of Pomal Kanji Govindji v. Urajlal K. Purohit in (AIR 1989 SC 436) last part of the para 11 of the judgment opined as follows : (page 333 f, g, h.)
'27 * * * * Whether or not in a particular transaction there is a clog on the equity of redemption depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis-a-vis him and the mortgagee, the economic and social conditions in a particular country at a particular point of time, custom, if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely, circumstances of the parties, the time the situation, the clauses for redemption either for payment of interest or any other sum, the obligations of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage to manage as a matter of prudent management, these factors must be correlated to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption.'
AIR 1954 SC 345 is not discussed as it speaks in similar tune.
19. Adverting to the actual evidence on record in this case, it will be seen that the main plaintiff/respondent, deposing as PW I, has fully corroborated the facts averred by him in his plaint. The relevant extract of this evidence goes as follows :
'On 17-1-1984 I mortgaged my share of the suit land to the defendant for Rs. 45,000/- by executing a deed of mortgage as I was under pressure of money for my contract work. On the say day I also mortgaged the other half of the suit land belonging to my brother plaintiff No. 2 to the defendant for Rs. 45,000/- by executing a deed of mortgage for the same purpose. I have filed the certified copy of the said two mortgage deeds in this ease. The original mortgage deeds are now in the possession of the defendant. The stipulated time in the said mortgage is 4 months each. The said two deeds of mortgage were registered. From the date of the mortgage, the defendant has been in possession of the suit land.'
It is also another established fact on the basis of the pleadings of the rival parties that even before the expiry of time limit of four months as stipulated in the mortgage-deed the appellant presented his petition on 10-5-1984 for mutation of the suit land in this favour (period was due to expire by 16-5-1984) which is indicative of the fact that the appellant was intending somehow to convert the suit land in his name taking the advantage of the stipulation in the mortgage-deed on the question of limit of four months for the purpose of redemption. It is also in the evidence of P.W. 1 that soon thereafter in the course of his continued possession over suit land appellant/defendant started constructing houses from 5-7-1986 onwards defying objections from plaintiff. During cross-examination the suggestion given to P.W. 1 that he proposed to sale the land and that the deeds in question were prepared as per his dictation were denied by him (the plaintiff respondent). It is also stated by PW 1, as noted earlier, that when the land was mortgaged it was a vacant land. The contention of PW 1 was supported by other two witnesses examined by him who affirmed the question of borrowing money by the plaintiff for his contract work and for treatment of his insane elder brother (PW 3 has stated that plaintiffs elder brother Abdul Hakim died around the year 1990). Therefore, it can be safely concluded that there is no infirmity in the evidence of PW 1 and plaintiffs property was mortgaged against the loan taken by the plaintiff which he urgently needed for his contract work and for the treatment of his elder brother. PW 2 corroborated PW 1 by stating that he went to the appellant more than once along with the plaintiff to tender the mortgage money and to claim redemption of the suit land, and but appellant was persistently refusing to agree to the demand. I find nothing in the oral testimonies of PWs to apply the bar provided under Sections 91/92 of the Evidence Act. On scrutiny of oral evidence adduced by plaintiff it will be seen that no attempts were made to supplement the contents of Exst. A/5 and A/6 to attract bar of Sections 91/92 of the Evidence Act, The ground raised has no force.
20. For proper appreciation and for the sake of convenience I would like to reproduce the exact pleading of the defendant in this regard in the written statement (WS). It goes as follows in para 8 of W.S.
'8. ********* The plaintiff No. 1, sometime in January, 1984 felt the necessity for raising some fund, for his own need, as well as for the medical treatment and welfare of the plaintiff nor, (SIC) as such requested the defendant to advance a sum of Rs. 90,000/- (Rupees ninety thousand) to them, as the price of the suit land, which belonged then to them jointly. The plaintiff No. 1 therefore, executed the said two deeds, by way of conditional sale with a stipulation that on failure to repay the said amount, the said transaction shall be treated as absolute sale and the defendant shall become the full and exclusive owner thereof.'
There was absolutely no evidence to substantiate this assertion of facts or plea raised against the claim of the plaintiff/respondents. Oral testimony of D.W. 1 to that aspect was only as below :
'The suit land is in my possession. I purchased the suit land from the plaintiff No. 1 (Abdul Khalik) about 10 years back at a consideration price of Rs. 90,000/- by a conditional registered sale deed for four (four) months.
The sale deed was written in the shop plot by a deed writer under our instruction.
**************
* I constructed a katcha building made of wood over the said land and that the said building on rent to one Sankar.
**************
Ext. B-1 and B-2 are the said two sale deeds drawn by the plaintiff No. 1 in favour of me.'
During his cross-examination DW 1 had admitted that he knew that Abdul Hakim PW 2 was of unsound mind, from before the transaction and mentioned in the mutation petition that he purchased the land by mode of deed executed as conditional sale and admitted the fact that the deeds were executed in Sangam Restaurant and were already written when handed over to the executants for his signature etc. Thus, these facts admitted will clearly be indicative of the fact that the deeds were executed by the plaintiff respondent No. 1 under duress. There is nothing significant in the statements given by the DW 2 who had deposed to be an attesting witness only to the deeds in question.
21. From these excerpts of the evidence on record one can very well come to a conclusion by exercise of commonsense that the plaintiff respondent was in urgent need of money and he executed the deeds only with intention to mortgage the property as security against incurring the loan. Thus, it may reasonably be argued that the condition of redemption was inserted in the deeds taking his hapless condition and in that event it will definitely amount to a clog on equity of redemption which is again violative of the provisions of Section 60 as per the prevalent interpretation/elucidation of the law on clog on equity of redemption. It will be significant to repeat that in the recitals of the deeds, Exts. A/5 and A/6, the mortgagor has only mentioned that he shall have no objection in mutating name of mortgagee according to law. Thus, the said stipulation, under no stretch of imagination, probable and reasonable interpretation, can be given the scope of being adjudged as a sale deed or converting a mortgage by conditional sale to an absolute sale. The stipulation in question might have acquired some strength had there been any case of exercise of the rights of foreclosure as given under Section 67 of the Act by the mortgagee after service of proper notice. But in the instant case the appellant was so over-enthusiastic that he presented a petition for mutation in haste even before the expiry of stipulated period of four months. Subscribing a stipulation of limit for four months for redemption will again be clearly indicative of an onerous condition because a person incurring loan of Rs. 90,000/- may not be able to return the same within a period of four months, supposedly having no source of income at the relevant point of time. It will be significant to note, neither plaintiffs nor the defendant of the suit have mentioned what was the other source of income of the plaintiffs at the relevant time, or next before or thereafter. But the appellant/defendant has admitted that after getting unto possession of the suit land he had constructed houses and had given it on rents thereby making permanent source of income. It is talked at the Bar that the property is bringing a monthly income of Rs. 15,000/- to Rs. 20,000/- to the appellant now.
22. Without going to lengthen the argumentation, I find that the citation referred to by the learned counsel for the respondents/plaintiffs, viz., (2000) 4 SCC 326 : AIR 2000 SC 1935 (Supra), which I discussed earlier will be convincing point of law on this count to upheld the contention of the respondents/plaintiffs and reject the plea of defendant/appellant. The definition of mortgage by conditional sale clearly starts with the wordings 'where the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of mortgage-money on a certain date the sale shall become absolute, or .............'. But here, in the present case the two deeds, Exts. A/5 and A/6, nowhere mentions any intention to sell the property but incorporates only a condition that 'the period of mortgage will be four months' and in case of failure to make repayment of the loan the mortgagor will have no objection against mutating name of the mortgage as per law. Mutation primarily speaks on possession but not on title. The disputed deeds are absolutely silent on passing of any title, far less absolutely and stipulation about limit on redemption and non-objection to mutation are clearly clog on the right of equity of redemption as discussed earlier and therefore, I am of the considered opinion, pursuant to discussions above, that such a condition can never be interpreted as conditional sale as pleaded in the written statement of the appellant/defendant.
23. Therefore, it will not be out of place to impute that matter had been stretched by appellant beyond permissible limit of logic and probability to attract any favourable consideration. It is palpably an attempt to mislead the Court and misrepresent the facts, may be for wrongful or illegal gain, if I am permitted to say so, taking advantage of the physical possession of the land in dispute (Suit land). Such intrigue cannot deserve the sanction of propriety and needed to be discouraged. The extraneous plea of minority/insanity of plaintiff No. 2 is another illustration of making attempt to frustrate an otherwise valid and logical claim of the plaintiffs in addition of intention to prolong litigation to derive benefit out of the Suit land. It will be interesting to note and observe that the appellant deposing as D.W. 1 during his cross-examination admitted as follows :
'I formerly know that Md. Hakim the plaintiff No. 2 is an unsound mind. He has been an unsound before the execution of the said document involved in the present Suit.'
24. Concluding, I find that there is no ambiguity to attract the provisions of Sections 91 or 92 of the Evidence Act and the deeds Exts. A/5 and A/6 are deeds of usufructuary mortgages as claimed by the plaintiffs/respondents notwithstanding the fact that an avoidable confusion was evident from the pleading which averred that plaintiff had to execute deeds of usufructuary mortgages of the suit land 'coupled with an agreement for sale of the land in case he fails to repay the loan within a period of four months'. P.W. 1, however, adduced no evidence in support of this portion of his pleading which remained as 'not proved' and may be vis-a-vis other materials on record overlooked. It is common knowledge that pleadings are drafted by lawyers and law is well-settled by different pronouncements of the Hon'ble Apex Court that no party will be made to suffer for the laches or mistakes of the counsel or scribes engaged by it. Equally, I find no instance of perverse finding of the Court below although it may be conceded that discussions were not exhaustive and adequate. The point (a) thus answered.
24-A. Point (b) :-- In view of the findings so recorded in connection with point No. (a) in favour of the Respondents/plaintiffs they are entitled to the reliefs sought in the suit, i.e. to a preliminary decree for redemption of the suit land and thereafter to a final decree if in course of time other requirements of law to that effect are satisfied for the re-transfer and restoration of possession of the suit land on payment of the mortgage-money of Rs. 90,000/- (Rupees ninety thousand) and any other sum of money that may be due to the appellant/defendant due to improvement or making construction of houses, less depreciation, if any.
25. This is a suit being fought for last 16/17 years since 1984. Only at the appellate stage on 22-9-98 the defendant/appellant filed an application under Order VI Rule 17 of CPC (Misc. Case No. 43/98) for the amendment of the written statement (W.S.) to incorporate a fact that on 27-4-81 the respondent/plaintiffs executed another mortgage deed for period of two years with respect to the same land in dispute and delivered possession to the defendant/appellant. Another application on 28-11-98 (Misc. Case No. 55/98) under Order XIII Rule 2(1) of CPC for production of additional document claiming to be mortgage deed. On hearing the parties and after examination of the document, I find the alleged document doubtful in nature and is an unregistered document. The person named therein as executor (i.e. Abdul Hakim) has not signed the document but it was signed by Abdul Khalique, stated to be his brother, the present plaintiff No. 1. Moreover, the document has no relevancy to the present dispute. The reason given for delay is neither adequately/reasonably explained to the Court nor is acceptable to commonsense. The matter/issue is extraneous to present suit and dilatory in nature deserving no notice and is rejected outright.
26. With these added reasons the judgment and decree of the learned lower Court stand affirmed. It was rightly held by Trial Court that plaintiffs/respondents are entitled to the reliefs sought in the suit. This answers point (c).
27. In the result, the appeal is without merit and stands dismissed on contest with costs.
28. The decree passed by the learned Court below, however, stands modified and amended to a preliminary decree for redemption of suit land as provided under Order XXXIV of CPC. On any date from today within next six months plaintiffs may make payment to Court the mortgage money of Rs. 90,000/-(Rupees ninety thousand) along with any other money that may be payable due to improvement etc. of the mortgaged land. Defendant will receive the money so deposited or paid directly to him and simultaneously by registered deed re-transfer the suit land free from the mortgage to plaintiff at his costs and restore the possession of the plaintiff thereupon in accordance with law. In the alternative the mortgagee may execute a registered acknowledgment that mortgage is not outstanding from such and such date due to repayment of the loan and other dues, if any.
29. Formal proceedings for final decree, if and when needed, will be taken up by the learned Trial Court as per law.
30. Send down in LCR forthwith.