V.G. Sabhahit, J.
1. This appeal by the first defendant is directed against the judgment and decree passed by the Court of Additional Civil Judge (Sr. Dn.), Bellary in R.A. No. 48/ 1999 dated 17-6-2003 dismissing the appeal and confirming the judgment and decree passed by the Court of II Addl. Civil Judge (Jr. Dn.), Bellary, in O.S. No. 759/ 1993, dated 30-3-1999 decreeing the suit of the plaintiff for redemption of mortgage and directing the defendant to deliver possession of the schedule property to the plaintiff.
2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the trial Court are as follows :
The plaintiff filed the suit seeking for redemption of mortgage against the first defendant and for delivery of possession of the schedule property in favour of the plaintiff. Defendants 2 and 3 have been impleaded since they are tenants in possession of the schedule property.
3. It is averred in the plaint that plaintiff is the son of Mohammad Haneef who died about thirty years next before filing of the suit. Kasimsab was his elder brother. Kasimsab executed a registered mortgage deed in favour of the first defendant for a sum of Rs. 1,500/- and delivered possession of the property to the first defendant as a security for redemption of money of Rs. 1,500/-. On 27-5-1977 after the death of Kasimsab the plaintiff who is the brother of Kasimsab is entitled to redemption of the schedule property. The document contains other recitals in respect of the property which is clog on redemption and plaintiff is entitled to redeem the mortgage and obtain possession of the property. The first defendant has given portion of the property to second and third defendant on rent hence the plaintiff has impleaded them as defendants. The plaintiff is ready and willing to pay the amount to the first defendant which was received by his brother Kasimsab under the registered mortgage deed and accordingly, plaintiff issued a notice on 29-9-1993 to the first defendant to receive Rs. 1,500/- and redeem the mortgage and to deliver possession of the property. The first defendant gave a reply to the said notice on 8-10-1993 which was received by the plaintiff on 4-11 -1993 denying the mortgage and also denying the right of redemption to the plaintiff and wherefore the suit for redemption. The suit schedule property is the house property situated within the City Municipal limits of Bellary bearing assessment No. 20, Old No. 9 present door No. 10 and D. No. 271 Cowl Bazar Main Road, Bellary, as per the description in the schedule to the plaint.
4. The suit was resisted by the first defendant denying the material averments made in the plaint that the plaintiff is entitled to redemption and that the document is a mortgage deed. It is contended by the first defendant that it is false that plaintiff is the legal representative to the estate of the deceased Kasimsab and plaintiff is put to strict proof of the same. It is further averred that Kasimsab had received a sum of Rs. 1,500/- from first defendant by executing mortgage deed. Kasimsab is the son of the first defendant's sister and the first defendant has looked after him while he was suffering from ill health and Kasimsab had received money for his medical treatment. Total amount received by the deceased Kasimsab is Rs. 10,000/- and in spite of spending huge amount for treatment, the said Kasimsab has not recovered from the illness and has expired leaving behind his only son Khaja Hussain, but due to the illness of the deceased Kasimsab first defendant has not got the registration of the sale deed of the suit property from deceased as per the Will and wish of the deceased Kasimsab, because he has agreed to execute the sale deed in favour of the first defendant including the previous borrowed amount of Rs. 1,500/-. But unfortunately Kasimsab expired without executing the sale deed in favour of the defendant. Under these circumstances, defendant No. 1 is the absolute owner of the schedule property and plaintiff has no right at all to redeem the property, taking advantage of the death of Kasimsab. It is further averred that the suit is filed only to harass the first defendant, there is no relationship between the plaintiff with the defendant regarding the suit schedule property and more over, he has no locus-standi to issue legal notice by making the false allegations and wherefore, he is not entitled to any relief in the suit. It is further averred that second defendant was strict in payment of rent and therefore he has filed HRC petition against him for eviction and wherefore the second defendant has colluded with the plaintiff and got a false suit filed to defeat the claim of the first defendant. Defendant No. 2 remained ex parte.
5. The trial Court framed appropriate issues having regard to the above said pleading. On behalf of the plaintiff, plaintiff was examined as PW 1 and got marked Exs. P-1 to P-4. On behalf of the defendants, first defendant was examined as DW-1 and also examined DW-2 and did not produce any documentary evidence. The trial Court after considering the contention of the parties and the material on record by judgment dated 9-2-98 dismissed the suit of the plaintiff and being aggrieved by the same, plaintiff preferred RA. 26/98 and said appeal was allowed and remitted to the trial Court since trial Court had not answered all the issues and passed the judgment dated 10-9-98, thereafter the trial Court held by judgment dated 30-3-99 held that the document Ex. P-2 is a usufructuary mortgage and not a conditional sale deed as contended by the first defendant and plaintiff being the brother of Kasimsab the mortgagor has interest in the property being a residuary, he has succeeded to the property of the mortgagor-Kasimsab and the defendants have failed to prove that Kasimsab has left behind his wife and son and even otherwise the suit for redemption is maintainable in view of the provisions of Section 91 of the Transfer of Property Act and as the document is a usufructuary mortgage condition imposed therein which is clog on redemption is void in view of the provisions of Section 60 of the Transfer of Property Act. Being aggrieved by the said judgment and decree, the first defendant preferred RA. No. 48/99 on the file of Addl. Civil Judge (Sr. Dn.) Bellary, and the first appellate Court by judgment dated 17-6-2003 dismissed the appeal and confirmed the judgment and decree passed by the trial Court and being aggrieved by the same, the first defendant has preferred this appeal which was admitted on 28-6-2005 for consideration of the following substantial question of law :
Whether the judgment and decree passed by the Courts below is contrary to the contents of Ex.P-2 which clearly shows that there was a clause of re- conveyance of the property?
6. I have heard the learned Counsel appearing for the parties on the above said substantial question of law.
7. The learned Counsel appearing for the appellant-first defendant vehemently argued at length that the Courts have erred in holding that Ex. P-2 is a usufructuary mortgage and the conditions contained in the said document regarding sale is a clog on redemption. The learned Counsel further submitted that the plaintiff being the brother of Kasimsab was not entitled to file the suit for redemption when the wife and son of Kasimsab, Rabia Bi and Khaja Hussain who was examined before the trial Court as D.W. 3. The learned Counsel has relied upon the following judgments in support of his contention that when the contents of the document is not clear, the intention of the parties has to be ascertained from the recital in the document, the material on record and the conduct of the parties :
1. Bhoju Mandal v. Debnath Bhagat : AIR1963SC1906 .
2. Nanjamma V. H.N. Siddaiah ILR 2001 Kant 4529 : 2001 AIR Kant HCR 2613.
3. Madappa v. Sonvva ILR (2001) 3 Kant 4295.
4. Vidhyadhar v. Mankikrao : [1999]1SCR1168 .
5. Mushir Mohammed Khan v. Smt. Sajeda Bano : [2000]2SCR65 .
6. Santakumari v. Lakshmi Amma Janaki Amma : AIR2000SC3009 .
7. C.G. Amanulla Kah v. Anwar Khan 2004 (1) KCCRSN 64: AIR 2004 Kant 22.
8. The learned Counsel further submitted that the Kasimsab had purchased the property for a consideration of Rs. 500/- and the mortgage deed is for Rs. 1,500/- and material on record also shows that first defendant has lent money towards the medical expenses of Kasimsab who died due to illness. The learned Counsel submitted that in view of the re-conveyance clause contained in Ex.P-2 it is a sale with re-conveyance clause and since re-conveyance deed has not been got executed within the time as per the agreement, the sale has become absolute and wherefore the first defendant has become the owner of the schedule property and question of redemption does not arise and the finding of both the Courts that Ex. P-2 is not an out and out sale with a condition of re-conveyance deed a mortgage is clearly perverse and arbitrary. The learned Counsel further submitted that the katha has been changed to the name of the first defendant and first defendant is enjoying the property as owner and wherefore Courts below were not justified in decreeing the suit for redemption.
8-A. On the other hand, the learned Counsel appearing for the contesting respondent-plaintiff submitted that the contents of Ex.P-2 clearly shows that he is a mortgagor and Courts below after considering the contents of the documents and the material on record and evidence of the parties has come to the conclusion that it is a usufructuary mortgage and the clog on redemption is void in view of the provisions of Section 60 of the Transfer of Property Act and plaintiff being the brother would be a residuary who succeed to the property of Kasjmsab along with the wife and son even if it is proved that Rabia Bi is the wife and Khaja Hussain is the son of Kasimsab, same would not affect the right of the plaintiff to get the mortgage redeemed as it is open to the said Rabia Bi and Khaja Hussain to proceed against the plaintiff who are the heirs of Kasimsab as rightly held by the first appellate Court and in view of the provisions of Section 91 of the Transfer of Property Act any person is having interest in the property is entitled to redemption of mortgage as concurrently held that Ex.P-2 is a mortgage and not out and out sale as contended by the first defendant is justified and does not give rise to any substantial question of law to be decided in this appeal and the question of law framed has to be answered against the appellant.
9. I have considered the contention of the learned Counsel appearing for the parties with reference to the material on record including the pleading, oral and documentary evidence as also the judgment of the trial Court and the first appellate Court.
10. It is well settled in view of the decisions of the Hon'ble Supreme Court and this Court that mere title to the deed is not conclusive of its nature and it is always open to the parties to lead evidence regarding the intention of the parties about the nature of the document and intention has to be gathered from the recital in the document, the material adduced by the parties before the Court as also the conduct of the parties. Hon'ble Supreme Court has laid down the distinction between mortgage by conditional sale and sale with condition of re-purchase in the decision of the Hon'ble Supreme Court in Bhoju Mandal v. Debnath Bhagat AIR 1963 SC 1906 as follows :
There is a clear legal distinction between the two concepts, a mortgage by conditional sale and a sale with a condition of re-purchase. The former is a mortgage, the relationship of debtor and creditor subsists and the right to redeem remains with the debtor. The latter is an out and out sale whereby the owner transfers all his rights in the property to the purchaser reserving a personal right of re-purchase. The question to which category a document belongs presents a real difficulty, which can only be solved by ascertaining the intention of the parties on a consideration of the contents of a document and other relevant circumstances. Decided cases have laid down many tests to ascertain the intentions of the parties but they are only illustrative and not exhaustive. For ascertaining the intention of the parties under one document a decision on a construction of the terms of another document cannot ordinarily afford any guidance unless the terms are exactly similar to each other.
11. This Court after considering the decision of the Supreme Court has held as follows in the decision of Smt. Nanjamma v. H. N. Saiddaiah ILR 2001 Kant 4529 : 2001 AIR - Kant HCR 2613 :
Thus, from the discussion made above, the following tests can be employed to distinguish 'a mortgage by conditional sale' with 'a bona fide sale, with a clause to repurchase.
1) 'Whenever the documents embodying the transaction has to be construed, the intention must first be gathered in the first place from the document itself. If the words are explicit clear effect must be given to them, if however there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was Intended.
2) If a transaction embodied in the document takes place after the amendment to Section 58(c) of the Transfer of Property Act by Act 20 of 1929, and if the sale and agreement to re-purchase are embodied in separate documents that the transaction is not a mortgage.
i) If the transaction takes place after the amendment of Section 58(c) and the entire transaction is embodied in a single document. A presumption can safely be raised that the transaction is a mortgage, though such a presumption is always rebuttable by evidence.
ii) If a reading of all the clauses in the document indicate that the relationship of 'debtor' and 'creditor' subsists between the parties then it is safe to lean in favour of the transaction being a mortgage. Some of the methods of finding out 'whether the relationship of creditor and debtor subsists' are
If the buyer agrees to transfer the property to seller for the same sum (with or without interest) 'Advanced by him and described as a sale price.
iii) If money paid by the buyer was not a fair price for the 'absolute purchaser' of the property. This test to be applied in conjunction to the above tests.
iv) It should also be added to the above that in doubtful cases Courts lean strongly to the construction most favourably to the person claiming right to redeem.
12. It is clear from the principles laid down by the Hon'ble Supreme Court and this Court that the document Ex.P-2 has to be considered with reference to the recital in Ex. P-2 the material on record and the conduct of the parties. It is clear from the pleading that both the plaintiff and defendant have referred to the document as a mortgage and it is clear from the averments made in the written statement itself that it was a mortgage deed and in para-4 of the written statement the first defendant has averred that allegation made in para-4 of the plaint by the plaintiff is true that deceased Kasimsab received Rs. 1,500/- from the first defendant by executing mortgage deed and deceased Kasimsab is the son of first defendant's sister and also the first defendant has looked after him well when he was suffering from illness and more over Kasimsab has received the money for his medical treatment and total amount received was Rs. 10,000/- and in spite of spending huge amount for treatment, Kasimsab did not recover from illness and expired leaving behind his wife and his only son Khaja Hussain, but due to illness of deceased Kasimsab defendant No. 1 has not got the registration of the sale deed in respect of the suit schedule property from deceased Kasimsab as per the will and wish of deceased Kasimsab and he has agreed to execute the sale deed in favour of first defendant for a consideration of Rs. 10,000/- including the previous borrowed amount of Rs. 1,500/-. It is clear from the recital of Ex. P-2 that the said document is mortgage deed as the recitals would clearly show that the mortgagor had become indebted to the mortgagee for a sum of Rs. 1,500/- and he did not have any income to repay the amount and wherefore the mortgagor gave up his right to receive the rent in respect of the schedule property which had been tenanted and wherefore the property was handed over to the mortgagee with a right to receive the rent for a period of three years and there was no condition for payment of interest and it was agreed that if within three years if the mortgagor pays the mortgagee amount, the mortgage shall be redeemed and possession handed back to the mortgagor and if the mortgagor fails to pay the amount within the time of three years then mortgage can get the sale deed registered and when this clause in the mortgage deed is considered with reference to the averments made in the written statement by the first defendant himself in para-4 it is the clear that the intention of the parties in executing Ex. P-2 was to the effect that the mortgage was executed as a security for repayment of the amount and the amount was to be paid within the time of three years and for the said period of three years the mortgagee was entitled to recover the rent and plaintiff had given up his right to recover the rent for the said period of mortgage and if the mortgagor does not pay the previous mortgage amount of Rs. 1,500/- within three years and failed to pay the same, the defendant can get the sale deed executed and wherefore it is clear that when the contents of the said document is considered in the light of the averments made in the written statement by the first defendant himself that the document Ex.P-2 can never be construed as a sale deed with condition of re-conveyance as contended by the first defendant and wherefore the finding arrived at by both the Courts below by holding that the document Ex. P-2 is a mortgage and not an out and out sale is justified. There is no merit in the contention of the learned Counsel appearing for the appellant that absolute title in the property has been conveyed under Ex. P-2 with clause for re-conveyance and wherefore it should be treated as conditional sale deed with right of re-conveyance as the contents of the document Ex.P-2 and the averments made in the written statement by the appellant himself referred to above would clearly belie the said contention and when the document is looked into in the light of the principles laid down by the Hon'ble Supreme Court in the decision referred to above, it is clear that the finding of the Courts below that it is a mortgage and not sale deed with right of re-conveyance is justified. The Courts below have rightly held that the said deed Ex. P-2 is a usufructuary mortgage as the possession of the property was handed over to the mortgagee with a right to recover the rent from the tenants for the period of mortgage and in clog on redemption by way of re-conveyance would be void in view of the provisions of Section 60 of the Transfer of Property Act. In any view of the matter, it is clear that Ex.P-2 is not a sale deed with condition of re-conveyance and wherefore the first defendant has not become the owner of the property and he has continued to be the mortgagee. There is also no merit in the contention of the learned Counsel appearing for the appellant that Courts below have erred in holding that plaintiff being the brother of Kasimsab has interest in getting the property redeemed in view of the provisions of Section 91(a) of the Transfer of Property Act. Both the Courts below have held concurrently on the question of fact that the first defendant has failed to prove that Kasimsab has left behind the wife Rabia Bi and Khaja Hussain who is examined as DW 3 before the trial Court. Even assuming that Kasimsab has left behind his wife and son, it is clear that in view of the principles of succession under Mohammedan Law the wife would be a sharer having 1 /8th share and the son and brother would be residuary and son would be entitled to 2/ 3rd share in 7/8th share and brother would be entitled to 1 /3rd share in the 7/8th share and wherefore, it is clear that the plaintiff as the brother of Kasimsab had interest to redeem the mortgage in view of the provisions of Section 91 of the Transfer of Property Act as under the said section any person who has interest in the property mortgaged can file a suit for redemption and the first appellate Court has rightly observed that if Rabia Bi and Khaja Hussain are able to prove that they are the wife and son of Kasimsab they can proceed against the plaintiff in respect of their share and that would not in any way affect the right of the plaintiff being the brother to seek redemption. The contention of the learned Counsel appearing for the appellant that the property was self-acquired property of Kasimsab and wherefore the brother of the deceased Kasimsab is not entitled to file a suit for redemption is devoid of any merit as the concept of self-acquired property and joint family property is not recognised under the Mohammedan law and under the Mohammedan law the succession to the property would be among the sharers, residuary and distant kindred and sharers are those who are entitled to prescribed share of inheritance, residuary are those who take succeeding shares and distant kindred are those who are neither sharers nor residuary and wherefore, the plaintiff being the brother of Kasimsab is entitled to file the suit for redemption as rightly held by the Courts below concurrently and accordingly, I answer the substantial question of law in the negative, against the appellant and hold that there is no merit in this appeal and pass the following order :
The appeal is dismissed with cost. The judgment and decree passed by the Court of Add. Civil Judge (Sr. Dn.) Bellary in R.A. No. 48/99, dated 17-6-2003 dismissing the appeal and confirming the judgment and decree passed by the Court of II Addl. Civil Judge (Jr. Dn.) Bellery in O.S. No. 759/93, dated 30-3-99 is confirmed.