Bombay High Court
Smt. Vijaya Jaysingrao Shinde (Since ... vs Shri. Giriraj Gopalrao Gudalkar And Ors on 30 January, 2018
Author: N.M. Jamdar
Bench: N.M. Jamdar
1 901. SA 790.16.doc
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELL ATE SIDE JURISDICTION
SECOND APPEAL NO. 790 OF 2016
with
CIVIL APPLICATION NO. 1561 OF 2016
Smt. Vijaya Jaysingrao Shinde
(deceased) through L.R's.
1. Mr. Pradip Jaysingrao Shinde,
Age - 62 years, Occu- Rikshaw Driver,
R/o. 915, Shahupuri 6th Lane, Kolhapur.
2. Mr. Dilip Jayasingrao Shinde
Age - 65 years, Occ-Service,
R/o. Navankur Society, Poud Road,
Pune.
3. Mr. Ashok Jaysingrao Shinde
Age-48 years, Occu - Service,
R/o. Near Yerawde Jail,
Press Colony, Quarter No.7/
Yerwada, Pune. ... Appellants/Applicants.
V/s.
1. Mr. Giriraj Gopalrao Gudalkar,
Age - 32 years, Occ- Carpenter.
2. Mr. Ratnakar Gopalrao Gudalkar
Age - 28 years, Occu - Carpenter,
Both R/o. Giriraj Appt. 752/753.
'A' Ward, Timber Market, Kolhapur.
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3. Mrs. Shital Govind Shirolkar
Age - 43 years, Occu - Household,
R/o. 1236, Konwal Galli,
Belgaum, Karnataka State.
4. Mrs. Sima Bharat Shirolkar
Age - 38 years, Occu-Household,
R/o. Bachani, Tal. Kagal,
Dist. Kolhapur.
5. Mrs. Mangal Pandit Shirolkar
Age - 40 years, Occu - Household.
R/o. Bachani, Tal- Kagal,
Dist. Kolhapur.
6. Mrs. Shamal Shridhar Sutar
Age - 35 years, Occ - Household,
R/o. 915, 'E' Ward, Shahupuri,
Kolhapur. ... Respondents.
(Orig. Plaintiffs)
Mr. Anand S. Patil for the Appellants/Applicants.
Mr. Drupad S. Patil for the Respondents.
CORAM : N.M. Jamdar, J.
DATE : 30 Januar y, 2018.
Oral Judgment :-
The Appellants are the Original Defendants. The Respondents - Plaintiffs filed a Regular Civil Suit No. 403 of 2007 seeking redemption of mortgage. The learned Civil Judge, Junior ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 00:25:47 ::: 3 901. SA 790.16.doc Division, Kolhapur, by the judgment and decree dated 31 October 2009 decreed the suit and held that the document dated 18 April 1985 was a mortgage deed and directed the Appellants to re-convey the property upon the Plaintiffs paying the amount of Rs.21,000/-.
A Regular Civil Appeal No. 10 of 2010 was filed by the Appellants in the District Court, Kolhapur. The learned District Judge dismissed the Appeal by judgment and order dated 24 August 2015.
2. The suit property is two storeyed rooms admeasuring 15 x 10 feet in City Survey No. 915, 'E' Ward, Shahupuri, Kolhapur. According to the Respondents - Plaintiffs. The property was owned by the mother of the Plaintiff and since she was unwell, on 18 April 1985, she mortgaged these rooms to the Appellants for loan of Rs.21,000/-. According to the Respondents - Plaintiffs, after payment of the amount within the period stipulated in the deed, the property was to be re-conveyed. Since the Appellants did not hand over the possession inspite of the loan amount sought to be repaid by the Respondents - Plaintiffs, the suit had to be filed. The Appellants filed written statement and contested the suit contending that the documents dated 18 April 1985 was not a mortgage deed but it was a sale with an option of re-purchase. It is contended that since the loan amount was not paid within the time stipulated under the deed, the Appellants become absolute owner thereof. As stated above, both the Courts, after considering the evidence on record and ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 00:25:47 ::: 4 901. SA 790.16.doc analyzing the document dated 18 April 1985 held it to be a document of mortgage. Thereafter, the Second Appeal is filed.
3. Heard the learned Counsel for the parties.
4. The Appeal is admitted on the following substantial questions of law :-
(a) Whether the document dated 18 April 1985 is of mortgage or sale with an option to repurchase?
(b) Whether both the Courts erred in not considering the admissions given by the Respondents - Plaintiffs in the cross-examination as regarding tenancy claim of the Appellants ?
(c) Whether the tenancy rights of the Appellants were surrendered if the deed is held to be a mortgage deed.
5. The learned Counsel for the Respondent submitted that if the Appellants are held to be a tenant, then the Respondent can institute proceedings for possession, and therefore, this issue be decided now. The learned Counsel for the Appellants jointly request for disposal of the appeal immediately. In view of this joint request, the Second Appeal is taken up for disposal forthwith.
6. On the question whether the document dated 18 April 1985 is of mortgage or sale with an option to repurchase, it is the ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 00:25:47 ::: 5 901. SA 790.16.doc contention of the learned Counsel for the Appellants that ten years time was stipulated in the document however, since the amount was not paid, the Appellants had become owner thereof. The learned Counsel for the Respondents - Plaintiffs supported the impugned order contending that the document dated 18 April 1985 is a mortgage.
7. Section 58 of Transfer of Property Act, 1882 to define a mortgage. Mortgage by conditional sale is defined under Section 58(c). Definition reads thus :-
" 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 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.] It is not necessary to travel beyond the deed in the present case, as there is no specific averment that if the amount is not paid, the Appellants shall become absolute owners thereof. If it was the case of the Appellants that the Appellants were to become absolute ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 00:25:47 ::: 6 901. SA 790.16.doc owners on default of payment within time, nothing stopped the Appellants in incorporating such a specific averment. Once the parties have otherwise drafted a document with clarity, and absence of this crucial recital reflect on the understanding of the parties as regard the transaction. It is not possible to read a line in this document and convert a document which otherwise a mortgage into a document of sale. Therefore, there is no error in the view taken by both the Courts, and the question of law No.(a) is held against the Appellants.
8. Accepting this position, the learned Counsel for the Appellants addressed the Court only on the second and third questions of law framed as above. According to the learned Counsel for the Appellants, since the Appellants are the tenants in the suit property, the tenancy rights cannot get eclipsed and if the Respondents - Plaintiffs want to recover the possession of the suit property, the Respondents - Plaintiffs should file an appropriate proceedings in the appropriate Court. The learned Counsel for the Respondents supported the conclusion that the Appellants are not the tenants contending that there was no evidence produced by the Appellants. In the cross-examination, the witness of the Plaintiffs had stated that there are eight rooms in the City Survey No. 915. In one of the rooms, one Yashoda Babu Karande was residing as a tenant. In the other room a tenant named Sitaram Hari Patil and ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 00:25:47 ::: 7 901. SA 790.16.doc Pradeep Shinde are staying as the tenants. Therefore, in the same premises the Respondents - Plaintiffs had given the rooms on tenancy basis to various tenants. He admitted that the Appellants were in occupation of the room prior to his birth. It was admitted that the Appellants are using the common toilet. There is a categorical admission that the rent receipts were issued by the mother of the Respondents - Plaintiffs and in the period between February 1984 to February 1985, the receipts issued in the name of the Appellants showing her as a tenant of the suit property. It was also admitted that from the year 1984 onwards the Appellants had been paying electricity bills. It is therefore clear from these admissions that even before the document was executed in April 1985, the Appellants are the tenants in the suit property.
9. It was contended by the learned Counsel for the Respondents - Plaintiffs that after the mortgage deed was signed by the Appellants, there is an implied surrender of tenancy and this finding rendered by the learned District Judge is correct. It is not a position of law that in such circumstances there is an automatic surrender of tenancy rights. From the perusal of the pleadings of the parties and the evidence it is apparent that though the document of the year 1985 was styled as a "mortgage deed" and finding to that effect has been given as above, it does not ipso facto, in the facts of this case take away the right of the Appellants as a tenant. Firstly, it ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 00:25:47 ::: 8 901. SA 790.16.doc is not explained as to why a landlady, who otherwise has various tenants against whom no proceedings were taken would suddenly mortgage two rooms in respect of a tenant, who was inducted just one year prior. It appears that such a deed of mortgage was executed to try to recover the possession of a tenanted property by a back door method. It is surprising that within one year of letting out the property on tenancy basis, the landlady chooses to mortgage the property for raising a loan.
10. Considering the circumstances in their totality, I am of the opinion that though the deed has to be styled as a mortgage deed, there was no willing and genuine surrender of the tenancy rights by the Appellants - tenants. A tenant under the provisions of the rent legislation enjoys certain protection and such protection cannot be taken away by surreptitious method and can only be taken away by following the procedure in law laid down for that purpose.
11. The finding of the learned District Judge that the Appellants are not tenants, is perverse as it is without considering the clear admissions of the Respondents - Plaintiffs. The second question of law framed thus accordingly will have to be answered in favour of the Appellants and it will have to be held that the Appellants are tenants in the suit property since the year 1984.
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12. Considering the facts of the present case, as above, it cannot be said that the document dated 18 April 1985 operates as automatic termination of the tenancy rights of the Appellants and that there was an implied surrender. The learned District Judge to arrive at a finding on this issue has not considered various aspects, which are clear from the evidence of the parties as noted above. It cannot be that irrespective of the factual situation, in all circumstances such a mortgage deed will amount to automatic cancellation of the tenancy rights, the issue will have to be considered in the facts and circumstances of each case. The conclusion of the learned District Judge is perverse and in ignorance of the record. The third question of law is thus answered in favour of the Appellants.
13. Furthermore, it has to be noted that if the deed of 18 April 1985 is to be construed as superseding the right of the Appellants as tenants in the suit property, the parties would have provided so in the deed in express terms. The statutory protection accrued to the Appellants of being a tenant, cannot be thus taken away by implication. Once the parties have chosen to execute a deed with clear and lucid terms, it is not explained as to why the extinguishment of tenancy rights was not provided in the deed. This is one more facet to be considered while examining the issue whether the deed of 18 April 1985 extinguish the rights of the Appellants ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 00:25:47 ::: 10 901. SA 790.16.doc and that whether even if mortgage is to be redeemed, the Appellants would loose the statutory protection under the provisions of the Rent Act.
14. In the circumstances, the Second Appeal is partly allowed. The findings of both the Courts as regard the deed of 18 April 1985 being a mortgage deed are confirmed. The findings of the Courts on the issue regarding tenancy rights are reversed. It is declared that the Appellants are the tenants in the suit property since the year 1984 and their tenancy rights are not extinguished by the document dated 18 April 1985. It is open to the Respondents - Plaintiffs to institute proceedings for recovery of the suit premises as per the provisions of the rent legislation applicable to the suit premises. If such proceedings are filed, they will be decided on their own merits. No order as to costs.
(N.M. Jamdar, J.) ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 00:25:47 :::