Bombay High Court
Mansing Bajirao Sawant vs Waman Laxman Sawant on 20 October, 1994
Equivalent citations: 1995(1)BOMCR645
Author: S.D. Pandit
Bench: S.D. Pandit
JUDGMENT S.D. Pandit, J.
1. Mansing Bajirao Sawant, original defendant in Regular Civil Suit No. 172 of 1977 on the file of II Jt. Civil Judge, Satara has come in the Second Appeal before this Court.
2. Before considering the pleadings of the parties, it is necessary for to me give pedigree of the original plaintiff and original holder of the lands in dispute, which is as under :
Chimaji Sawant was the owner of all the eleven pieces of lands which are described by the respondent-plaintiff Waman in his plaint in Regular Civil Suit No. 172 of 1977. The said Chimaji Sawant died in the year 1953 leaving behind him his four sons Ramu, Laxman, Arjun and Bapu. His eldest son Ramu died in the year 1960, leaving behind him his widow Manjulabai and his son Kisan. Thus, Kisan and Ramu and Manjulabai Ramu are cousin brothers and paternal aunt of respondent-plaintiff Waman Laxman Sawant.
3. Kisan Ramu Sawant entered into a transaction with the present appellant Mansing Bajirao Sawant on 18th June, 1965 and Kisan Ramu Sawant executed a deed with the stipulation of reconveyance and gave his property to the present appellant-defendant Mansing Sawant. The said Kisan Ramu Sawant was suffering from tuberculosis. He was indebted and he also wanted money for treatment and, therefore, Kisan entered into the said transaction with the appellant Mansing.
4. It appears that after the said transaction, Kisan died sometime in January, 1990 leaving behind him only his mother Manjubai as his heir. This Manjulabai had executed one gift deed and one will in favour of the present plaintiff-respondent on 1st June, 1970. By the said gift deed at Exh. 52 and the will deed at Exh. 58, respondent Waman get right, title and interest, which Manjulabai was having in the said properties as the sole surviving heir of deceased Ramu as well as Kisan. She had transferred and bequeathed her agricultural lands and one tenanted house in Bombay in favour of respondent Waman Laxman.
5. Respondent Waman (Original Plaintiff) brought this suit after issuing a notice to the present appellant-defendant on 21st July, 1974 alleging that the transaction between Kisan Ramu Sawant and appellant-defendant Mansing of 18th June, 1965 was a transaction of mortagage by conditional sale. He, therefore, sought a decree for redemption of the mortgaged property and to get possession of the mortgaged property by alleging that he had become the owner of the property mortgaged with the present appellant by Kisan on account of the gift deed of Exh. 52 and the will at Exh. 53 which took place on 1st June, 1970.
6. The present appellant-original defendant contested the claim of the plaintiff by filing his written-statement at Exh. 13. Apellant-defendant contended that the gift deed and the will in favour of the respondent-plaintiff Waman were illegal and invalid and that they were fraudulent documents and the respondent-plaintiff had obtained them by taking disadvantage of Manjulabai's bad physical and mental condition. Appellant-defendant had further contended that the claim of the plaintiff that the amount of mortgage is satisfied on account of his enjoyment of the income of the land was not correct. On the contrary, the income of the land was so meagre that even the interest of the said amount is not satisfied. Appellant-defendant, therefore, contended that the plaintiff is not entitled to ask for the redemption of the land. Appellant-defendant further contended that he was a tenant of the land, therefore, the plaintiff was not entitled to get possession of the land.
7. In view of the rival pleadings, the trial Court had settled issues at Exh. 14 and recorded evidence for both the sides. The trial Court came to the conclusion that the gift deed and the will executed in favour of the respondent-plaintiff were void and illegal as these were obtained by misrepresentation as well as coercion. The trial Court also came to the conclusion that the transaction of 18th June, 1965 was not of a mortgage. The trial Court, therefore, dismissed the plaintiff's suit with costs.
8. Being aggrieved by the decision of the trial Court, the original plaintiff preferred Civil Appeal No. 42 of 1982 in the District Court of Satara. The said appeal was heard by Extra Assistant Judge, Satara, who by his judgment and decree dated 8th February, 1984 reversed and set aside the judgment and order of the trial Court by recording a finding that the will and the gift deed executed in favour of the respondent-plaintiff were valid and legal and that the real transaction between the deceased Kisan and the appellant-defendant was of a mortgage by conditional sale and that the plaintiff was entitled to get a decree for redemption.
9. Being aggrieved by the said decision of the first appellate Court, the original defendant has come in second appeal before this Court. It is urged before me by the learned advocate for the appellant Shri Gole that the first appellate Court was not at all justified in reversing the finding of the trial Court that the gift deed and the will of 1-6-1970 were obtained by the respondent-plaintiff by misrepresentation and fraud and that they were not valid and legal documents. According to him, there are circumstances which indicate that the will in favour of the respondent-plaintiff must not be valid and legal one. The learned advocate for the appellant cited before me the case of Gorantla Thataiah v. Thotakurs Venkata Subbaiah, and he relied on the following head-note of the case :
"In a case in which a will is prepared under circumstances which raise the suspicion of the Court that it does not express the mind of the testator, it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the Court should proceed in a vigilant and cautious manner."
Before considering the said proposition and application of the said proposition to the facts of the case before me, it will be appropriate to consider here the circumstances on which Shri Gole wants to rely on in support of his contention that there are suspicious circumstances regarding the genuineness and correctness of the Will as well as the gift deed dated 1st June, 1970. Shri Gole contended before me that Manjulabai had lost her son few days prior to the date in question and, therefore, she must not have been in a free mind to execute the documents in question. She must be in a depressed mood and the plaintiff has tried to take disadvantage of her depressed mind and obtained execution of the said documents in his favour. Shri Gole further contended that Manjulabai was suffering from Tuberculosis as well as cancer and, therefore, she had no proper physical health to know the nature of the said transactions and she must not have executed those documents of her own sweet will. Unfortunately, there is no clear evidence on record as to on what date Kisan had died, but one thing is quite clear that Kisan died at least four to five months prior to the transactions in question. No doubt, Kisan was the only child of Manjulabai and on account of his death, she must have suffered mentally, but that does not mean that she must not have been in a fit mental condition to execute the documents in question. It must be remembered that her son Kisan had not died all of a sudden or accidentally. The material on record shows that Kisan was suffering from Tuberculosis at least five years prior to his death. Therefore, in the circumstances Manjulabai must be quite well aware of the fact that her son Kisan was going to die due to the disease from which he was suffering. The deceased Kisan was her only issue and when he was suffering from the said disease five years prior to his death, she must have made up her mind at the time of his death and it could not be said that she must have been so much mentally shocked as not to be able to know the nature of the things about four to five months after the death of her son. When she had lost her son and when there was no direct descendant of hers, it is but natural that she would try to dispose of the property belonging to her and her family to a person who was looking after her. It has come in the evidence of the plaintiff Waman that Manjulabai was living with him and he and his wife were looking after her. Even appellant has stated in his examination-in-chief that the plaintiff Waman and his family members were looking after her during her illness. Therefore, in the circumstances, the say of the plaintiff that Manjulabai was insisting on him to execute the documents in question to dispose of her property in his favour could not be said to be improbable, unbelievable or unacceptable. There is absolutely no evidence on record to show that after the death of her son, Manjulabai was really shocked and that she was not in a fit mental condition to know the nature of the transactions in question. Merely because there was death of her son, that too four to five months prior to the date of the documents and that too on account of his illness which was persisting for the last four to five years, it could not be said that she must not necessarily have been in a fit mental condition to know the nature of the things.
10. The next contention of Shri Gole is that Manjulabai had died due to Tuberculosis and Cancer. In order to support that contention of his, Shri Gole has put reliance on the death extract at Exh. 61. The death certificate at Exh. 61 shows that the Medical Officer of the Municipal Corporation of Greater Bombay had given the cause of death as "Koch's glands and Hypoprotemia Tuberculosis." If the said cause of death is taken into consideration, then at the most what could it be said is that Kisan was suffering from Tuberculosis. But the material on record shows that Manjulabai was alive for nearly one year and five months after execution of the deeds. Therefore, it could not be said that at the time of execution of these documents she must not have been in a proper physical condition to execute the said documents. The evidence of attestings witness Laxman Antu Sawant at Exh. 51 clearly shows that Manjulabai was quite fit mentally as well as physically. There is nothing in the cross-examination of both the attesting witnesses to discard and reject their claim. It must be further mentioned here that both the gift deed at Exh. 52 and the will at Exh. 53 are presented by Manjulabai before the Sub-Registrar and there is an endorsement of the Sub-Registrar that Manjulabai had admitted before him about the correctness of the contents of those documents. That endorsement of the Sub-Registrar goes a long way to disbelieve the contentions raised on behalf of the appellant. The appellant-defendant has not examined any other neighbour of Manjulabai to show that Manjulabai was in fact not in a fit mental and physical condition. Therefore, appellant's own interested words could not be believed and accepted, particularly in view of the evidence of the attesting witnesses and the endorsement of the Sub-Registrar.
11. The learned advocate for the appellant further brought to my attention the admission given by respondent-plaintiff Waman that he himself had called the attesting witnesses and that he had gone along with Manjulabai and the attesting witnesses to the Sub-Registrar's office. It must be mentioned here that Manjulabai had no direct descendent of her's. She had only a paternal nephew as her near relation and admittedly she was residing with respondent-plaintiff Waman and she is also an illiterate and old lady. Therefore, in the circumstances, if she happened to ask the plaintiff to bring the attesting witnesses and if the plaintiff happened to call the attesting witnesses along with her who went along with her to the office of the Sub-Registrar, then that could not be said to be a suspicious circumstance. It is very pertinent to note that the evidence of Waman as well as the attesting witnesses is that they had gone to Satara in open day light and they had gone by a public conveyance. Nothing was done secretly or by concealing from others. The Will was also presented by Manjulabai herself to the Sub-Registrar and, therefore, in the circumstances, merely because the plaintiff had called the attesting witnesses, the will could not be doubted. In the above case cited before me by the learned advocate for the appellant, the facts clearly show that the person who is said to have bequeathed the property was having poor mental development. He was having a widowed mother and he was also suffering from Typhoid. Evidence of attesting witness shows that the testator was not even able to sit at the time of executing the will. The attesting witness had also admitted that he was not in a position to understand what he was doing. Therefore, in view of these peculiar circumstances, it has been held that the active part taken by the person in whose favour the property was bequeathed creates a suspicion about the genuineness of the Will. It was also observed that when he (the testator) was not in a proper mental condition and when he had his widowed mother, it was not probable that the testator would bequeath whole of his property in favour of his maternal uncle. But that is not the case before me.
12. It must also be mentioned here that the learned advocate for the appellant has urged before me that Manjulabai was suffering from Tuberculosis and Cancer and, therefore, she was not in a proper physical condition to know the nature of the documents. If the pleadings of the appellant-defendant are read, then it would be quite clear that the appellant-defendant has not raised this contention in his pleadings. What he has pleaded in para five of his written-statement in that the deceased Manjulabai was always remaining sick only due to old age. The translation of the Marathi version used by the appellant-defendant is as under : "But, Manjulabai was on account of her old age remaining sick for about one month prior to her death and as the days passed on she had also lost her senses." Thus, according to the defendant, she was only suffering from old age, that too one month prior to her death. The execution of the deeds in question took place one year and five months prior to her death. Defendant's claim that she was confined to bed and she had also lost her senses is not supported by any documentary or oral evidence.
13. The next circumstance on which Shri Gole put reliance on is that there are two documents - one of gift deed and another of will and according to him the existence of these two documents creates suspicion about the genuineness of these documents. But, on the contrary, in my opinion the existence of these two documents rule out that there was any plan by the present respondent-plaintiff to fraudulently obtain documents from Manjulabai. If at all, respondent-plaintiff wanted to obtain documents fraudulently and by misrepresentation, then he would have made all the preparations to see that he get all the property by one document. In the will itself there is an explanation as to why the said will is executed after she executed the gift deed. She realised that besides the land transferred by the said gift deed, she had more pieces of land and she had also one rented house property and those (sic). Therefore, in my opinion the existence of the two separate documents would not be a circumstance showing or indicating that there was suspicion regarding the genuineness of these two documents.
14. Another attack on the will made by Shri Gole is that the said will is bequeathing the premises which were in possession of Manjulabai as a tenant and, therefore, the said will is invalid and illegal. It is true that by the said will Manjulabai has also bequeathed her tenanted premises in favour of plaintiff Waman. It is also true that the Bombay Rent Act prohibits transfer of possession by a tenant without consent of landlord. But the Will will take effect after the death of Manjulabai. That the Will is creating the heirship of the tenancy rights in favour of the plaintiff Bhaskar. The evidence on record shows that the tenanted room is in possession of plaintiff Bhaskar since her death. This show landlord has okayed the bequeathing of tenancy rights by Manjulabai. Apart from this if the provisions of sections 14, 15 and 15-A of the Bombay Rent Act, 1947 are seen, then all the transfers prior to 1st February, 1973 are valid and protected. The Will has become effective in month of November, 1971. Hence, the bequeath by Will which is prior to 1st February, 1973 will not be invalid or illegal.
15. It is further urged before me by Shri Gole that the gift is not valid as there is no acceptance as provided by section 122 of Transfer of Property Act. But if the provisions of section 123 of Transfer of Property Act are seen, then it would be quite clear that the gift of immovable property is to be effected by registered document signed by donor and attested by at least two witnesses. The gift deed in favour of plaintiff Waman is fulfilling these conditions of section 123 of Transfer of Property Act. The gift deed was handed over by Manjulabai to Waman and Waman has accepted the gift deed. That handing over of the gift deed by donor and acceptance of gift deed by donee will amount to acceptance of gift. Production of the gift deed from his custody by plaintiff Waman proves acceptance of gift.
16. Shri Gole also urged before me that the respondent-plaintiff and the attesting witness should not be believed as both of them have denied her illness during their cross-examination when the death certificate at Exh. 61 shows that Manjulabai was ill. I have already quoted above what the death certificate at Exh. 61 is saying regarding the cause of death of Manjulabai. What was asked to both of them is as to whether one and half year prior to execution of these documents Manjulabai was suffering from Tuberculosis and Cancer and both the witnesses have denied the same. It could not be said that their denial shows that they are dishonest witnesses. Merely because the death certificate is mentioning the cause of death that she was having "Koch's glands and Hypoprotemia Tuberculosis" it could not be said that those things must necessarily be in existence at the time of execution of these documents and that they would not be known to the persons who were present at the time of execution of these documents. "Koch's Glands" might have been formed as she started suffering from Tuberculosis and those things might have arisen after the execution of these documents. Therefore, when the witnesses are asked about the existence of those things at the time of execution of the documents and if they deny the same, it could not be said that they are dishonest witnesses so that their evidence could not be believed.
17. It must also be mentioned here that from the admission of the appellant-defendant it is quite clear that plaintiff Waman and members of his family were looking after Manjulabai even during her illness, as deposed to by the appellant in his examination-in-chief, then the execution of the Will and gift in favour of the respondent in preference to her nephew could not be said to be an unnatural act on her part. When the respondent-plaintiff was looking after her and when she was living with him, it is but natural that she will try to give her property to him. Therefore, it could not be said that the disposition by her in favour of the respondent-plaintiff is unnatural.
18. Therefore, in view of the foregoing consideration of all the facts and circumstances on record, I am in agreement with the First Appellate Court that the Will and the gift deed in question are valid documents and that those documents are genuinely executed by Manjulabai in favour of the respondent-plaintiff.
19. The next contention raised on behalf of the appellant is regarding the finding of the first appellate Court that the transaction dated 18th June, 1965 between Kisan Ramu Sawant and appellant Mansing is that of a mortgage by conditional sale. There is no dispute about the fact that the said document, the certified copy of which is produced at Exh. 43, is having the title as "Sale with stipulation for reconveyance". Thus the term of reconveyance of the property is covered by the said documents itself. The provisions of section 58(c) of the Transfer of Property Act, 1882 run as under :
"58(c) Where the mortgager 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 buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgager 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."
The proviso to the above section 58(c) was added by an amendment to the Transfer of Property Act in the year 1929. The learned advocate for the appellant has cited before me the decision of our own High Court in the case of Nana Tukaram Jaikar v. Sonabai Madhav Saindate, reported in 1982 Maharashtra Law Journal 538 and he put reliance on the following head-note of the same :
"Held, that the deed did not create expressly or by implication the relationship of debtor and creditor, nor was the amount paid by the transferee to the transferor made a charge on the land. The statement in the deed was to be treated as a permanent sale-deed and the transferee would thereafter enjoy the land for ever without the transferor and his successors but claiming any ownership emphasised that the condition of repurchase was to operate only within the stipulated period and no further. These were indications of a sale with a condition of repurchase. The recital that the amount was received by the transferor for the marriage of his daughter and family expenses, was not indicative either way. A man may when he is in need of money sell his property or mortgage it. The contention that the property had been transferred at an under-valuation, which was alleged to be indicative of a mortgage, had properly been rejected, by the trial Court inasmuch as it was sought to be established by nothing more than the bare word of the executant. In the light of the surrounding circumstances the deed in question was a deed of sale with a condition of repurchase."
The underlined portion of the above head-note clearly shows that His Lordship Bharucha, J., (as His Lordship then was and now the sitting Judge of the Supreme Court) had found that the document before him was a deed of sale with the condition to repurchase in the light of the surrounding circumstances and the evidence on record. Apart from the above emphasised portion of the head-note, the following observations of His Lordship (at page 542) also make that position clear :
"If the sale and the agreement to repurchase were embodied in separate documents then the transaction could not be a mortgage, whether the documents were contemporaneously executed or not. But the converse did not hold good. If the condition of repurchase was embodied in the document that effected or purported to effect the sale then it was a matter for construction which was meant. In the judgment the Supreme Court said that the question whether by the incorporation of a condition of sale a transaction ostensibly of sale could be regarded as a mortgage was one of the intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances."
Therefore, as per the decision of this Court cited above, the Court has to consider the surrounding circumstances and the contents of the document in order to find out as to what is the real nature of the document - whether it is a document of sale with the condition to repurchase or whether it is a document of mortgage with conditional sale. The Division Bench of the Patna High Court has considered the provisions of section 58(c) of the Transfer of Property Act in the case of Madhu Lal Singh v. Dhonga Mandal, and have laid down the following principles :
"Where a document which has to be construed as to whether it is a sale with condition of repurchase or a mortgage by conditional sale squarely falls within the definition of mortgage by conditional sale the presumption may be that the document is a mortgage by conditional sale and the onus will be upon the defendant to displace it."
20. Therefore, bearing all the above principles in mind, I proceed to consider the document at Exh. 43 to find out as to whether the finding recorded by the first appellate Court is correct or not. If the said document of sale with the stipulation for reconveyance (Exh. 43) is read carefully, then it would be quite clear that the said document clearly mentions as under :
"The land as described as aforesaid with surroundings including trees, shrubs, stones, mud etc. is conveyed today by periodical sale and delivered in your possession. I shall get the land reconveyed at the end of any year within 10 years from today. On failure to obtain the reconveyance within the aforesaid period, the instant sale-deed would be deemed to be absolute conveyance and you would occupy the said lands on payment of assessment permanently for generations to generations in any manner as you deem fit. Thereafter, neither I nor my heirs or anybody from my brotherin shall have any right, title and/or interest in the said lands. If anybody would raise any claim or objection, I shall remove the same." (Pages 42 and 43 of the Appeal Paper Book).
If the above contents of the said document are read, then it would be quite clear that the said document shows that he was entitled to claim the reconveyance of the said document within ten years from the date of the document at the end of any year. This condition is put in order to show that the appellant was to get the income of the land before the transaction in question has taken place in the month of June. The land in question is a Jerayat land and it is common knowledge that income of Jerayat land is received before the end of every English year. Therefore, he was to get reconveyance only after the end of every year. The said document further mentions that it was open to him to get the reconveyance of the document within ten years from the date of the document. If at all, the transaction in question was a transaction of sale with the stipulation for reconveyance, then there would not been such a long period of ten years, because nobody would like to have harvesting done on a land sold to him with the stipulation for reconveyance of the property after such a pretty long period. Therefore, that condition also indicates that the transaction between the parties was that of a mortgage. Then the document Exh. 43 further mentions that the appellant was liable to pay assessments of the land only if he failed to get the land reconveyed within ten years. In the natural course of conduct if at all the transaction was a real transaction of sale, then the liability to pay assessments of the land would go to the purchaser from the date of the transaction. But in the case before me it has been clearly mentioned that only in case if he failed to get the land reconveyed then he would occupy the said land permanently from generation to generation on payment of assessments of the land. Therefore, that condition also clearly indicates that the transaction between the parties was not that of a sale with condition to repurchase. The price of the land in question is mentioned as only Rs. 800/-. There is a controversy between the parties as to whether by the said document only 1 Acre - 8 Gunthas of the land are transferred in favour of the appellant or whether whole of the land i.e. nearly 5 Acres of land is transferred in his favour. In any case, if the area or acrage is taken into consideration, then the price of Rs. 800/- is very meagre. The appellant-plaintiff has stated that the price of the said land was more than Rs. 20,000/- to Rs. 25,000/-. But apart from it, if the acrage is taken into consideration along with the fact that it is an agricultural land in a Taluka of Satara District and the extract of the record of rights shows that the crops of Jowar, Bajri and groundnuts are grown in the said land, then the price of Rs. 800/- is obviously an inadequate price. Therefore, this is also a circumstance indicating that the real transaction between the parties must be that of a mortgage.
21. The plaintiff has filed the suit to get a decree for redemption and in the plaint the plaintiff has clearly averred and alleged that the mortgage money of Rs. 800/- has already stood satisfied on account of the appellant-defendant getting the income of the said land. The defendant has filed written-statement to the suit at Exh. 13. In his written-statement at Exh. 13, para eight, he has averred in marathi and translation of the same would be as under :
"That the said lands are of very inferior quality and no income from the same is received. Due to this, the interest is not satisfied and, therefore, on account of the income of land, the mortgage amount could not stand satisfied, as contended by the plaintiff, is false and the defendant does not admit the same."
If the above pleading of the defendant is read, then it would be quite clear that the defendant has clearly admitted therein that the income of the lands was such that he was not even getting the interest on the amount satisfied. So when the defendant's pleading is to this effect, he clearly admits that the transaction in question was a transaction of mortgage. If it was not a transaction of mortgage, then there was no question of his getting the interest on the amount satisfied. It is also very pertinent to note that in his written-statement he has nowhere stated that the real transaction between him and the respondent - plaintiff was purely a transaction of sale with an agreement to reconvey. When he is not raising a specific plea in his written-statement that the real transaction between the parties is not of mortgage and he raises a specific contention that the interest on the amount advanced by him was not satisfied by the income of the land, then it becomes very difficult to accept the contention of the learned advocate for the appellant that the real transaction between the parties was that of a sale with condition of reconveyance.
22. This, in view of the above discussion, circumstances and facts of the case before me, it would be quite clear that the case of Nana Tukaram Jaikar v. Sonabai Madhav Saindate, 1982 Mh.L.J. 538 is not applicable to the facts before me. I thus hold that the transaction between the parties was that of a mortgage by conditional sale.
23. Next contention raised by Shri Gole, the learned advocate for the appellant is two-fold. According to the learned advocate, by the Gift Deed (Exh. 52) and the Will (Exh. 53) plaintiff has got 1/4th share in the property in question and as to whether his suit will amount to a suit for partial redemption of the property in question. Mr. Gole further contended that if the provisions of Rule 1 of Order 34 of the Code of Civil Procedure are seen, then it would be quite clear that under the provisions of the said rule, all the parties who are interested in the mortgaged security or in the right of redemption shall be joined. As the plaintiff has not joined the others, the plaintiff's present suit is not tenable in law. At the outset, it must be said that no such contention was raised by the appellant either in the trial Court or in the first appellate Court. If the provisions of Order I, Rule 9 of the Code of Civil Procedure are seen, then it would be quite clear that if any objection is to the non-joinder of necessary parties is to be raised, it must be raised at the first instance. Now, apart from this technical side of the said contention, I proceed to consider as to whether there is any substance in the contention of the learned advocate for the appellant or whether by accepting the said contention, the plaintiff could be non-suited.
24. I have already given pedigre of the defendant and Manjulabai in para two of my judgment. That pedigre will clearly show that the husband of Manjulabai had three brothers viz. Laxman, Arjun and Bapu. Admittedly, the properties in question were belonging to the grandfather Chimaji, who died on 9th October, 1953. Consequently, in those properties, Chimaji's four sons - Ramu, Laxman, Arjun and Bapu had 1/4th share each. It is true that in the document of mortgage by conditional sale at Exh. 43 as well as in the plaint, there is no mention that the appellant-defendant is in possession of nearly 1/4th share out of the whole of the suit property. But is seems that there is no mention of 1/4th share being mortgaged with appellant Mansingh by Kisan in the mortgage deed at Exh. 43 due to sheer mistake. The material on record clearly shows that the parties are all along aware that Kisan had only 1/4th share in the suit properties; appellant Mansing got the mortgage of only 1/4th share in the suit properties and he is actually in occupation and possession of 1/4th share of the suit properties. This would be quite clear from the documentary as well as oral evidence on record. If the extract of record of rights Exh. 4 of eleven pieces of the lands in question is seen, then it would be quite clear that in the said 7/12 extracts in the Kabjedar column the names of Laxman, Chimaji, Arjun and Bapu and Kisan Ram are shown with each holding 4 Annas share. The said 7/12 extracts of the record of rights further shows that after the death of Bapu Chimaji, name of his son Jagtap is entered as the Manager of his joint family for his branch with 0-4-0 (Four Annas) share. The next document is a document of the mutation entry which has taken place on account of the mortgage in question. Certified copy of the said mutation entry bearing No. 8760 is produced at Exh. 44. The said mutation entry mentions that on account of the mortgage deed of 18th June, 1965 for Rs. 800/-, Mansing Bajirao Sawant came in possession of joint 0-4-0 (Four Annas) share in the lands shown therein. The said mutation entry also clearly shows that notice of the said mutation entry was given to the parties and the same has been certified after the service of the notice. It also mentions that the said mutation entry was made on account of the production of the mortgage deed. If the said mutation entry along with the extract of the record of rights at Exh. 4 is seen, then it would be quite clear that the name of the appellant-defendant has come in the Kabjedar's column on the strength of the said Mutation Entry No. 8760. The appellant has also clearly admitted in his deposition at Exh. 62 that he is in possession of only 1 Acre - 8 Gunthas of land out of the said land. If the admission of the appellant is taken into consideration along with his conduct in getting his name entered for only 1/4th share described in the plaint as well as in the mortgage deed at Exh. 43, then it will be quite clear that what was really mortgaged with him was only 1/4th share i.e. about 1 Acre - 8 Gunthas of land which is jointly in his possession along with other co-owners including appellant Waman. Therefore, in the circumstances, the plaintiff had filed the suit and the defendant has also contested the claim of the plaintiff on assumption that the real property in dispute was only 1/4th share out of the suit property and that the plaintiff wants redemption of that 1/4th share, which admeasures about 1 Acre - 8 Gunthas, which is in occupation and possession of the defendant on the strength of the mortgage deed in question. I have already mentioned above that after the death of Chimaji, the names of his four sons are entered against the land in question with 1/4th share. That can be verified by the certified copy of the Mutation Entry No. 701 at Exh. 50. Thus, there is a misdescription in the mortgage deed as well as in the plaint by not mentioning the 1/4th joint share out of the suit properties, though it has been specifically mentioned in the Gift Deed (Exh. 52) and the Will (Exh. 53). In view of the documents at Exh. 4 as well as at Exh. 50, it is quite clear that Kisan Ramu Sawant could not have mortgaged the whole of the land, because as per the Mutation Entry at Exh. 50 as well as per as the record of rights at Exh. 4, he had only 1/4th share and, therefore, he could enter into a transaction of mortgage of only 1/4th share in the said property. The conduct of the parties also clearly shows and particularly the conduct of the appellant-defendant that he got the possession of only 1/4th share and he is in fact in possession of only 1/4th share out of the suit properties. I have already taken into consideration this 1/4th share i.e. 1 Acre - 8 Gunthas while considering the adequacy of price and I have not taken into consideration the whole of the land while taking into consideration the adequacy of price.
25. It is vehemently urged by Shri Gole, learned advocate for the appellant that unless the plaintiff gets an amendment of his plaint to get the redemption of only 1/4th share and unless the original document of mortgage is rectified, the plaintiff's present suit is not tenable in law. It is true that in the original document of mortgage there is no mention about 1/4th share. The conduct of the parties show that they are not at all having any misunderstanding and there is no ambiguity in the minds of the parties to the document and further there is no dispute regarding the identify of the property between the parties. In the circumstances, therefore, there is no necessity to have the rectification of the said document of mortgage. At the cost of repetition, it must be mentioned here that both the appellant as well as the respondent has gone through the whole litigation. They have all along conducted themselves prior to the litigation as well as after the litigation that the real disputed property is the joint 1/4th share out of the suit property and, therefore, in the circumstances, it is not at all necessary to have the amendment of the plaint or to have the rectification of the document in question. In the case of Kedar Lal Seal and another v. Hari Lal Seal, , the following principles are laid down:
"The courts would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however, clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs."
In the case of Vishnu Arjun v. Irukulla Shankariah, A.I.R. 1957 Andhra Pradesh 784, the following principles are laid down :
"No doubt as a general rule, no plaintiff is entitled to a relief for which there is no foundation in the plaint. But when on the pleadings and the issues and the evidence adduced, the relief is clear, this general rule does not apply because it is duty bound of the Court to grant relief as the circumstances of the case would warrant even though it may not be asked for.
The primary duty of the courts after all is to do justice. Rules of procedure are intended only to advance the cause of justice rather than to impede the same. All that the Court is to guard against is that no prejudice has been done to or no surprise has been sprung upon the other party."
26. Therefore, bearing the above principles in mind, I hold that in the instant case the appellant original defendant was all along aware that he has got 1/4th share out of the suit property. He has also stated so in his deposition and he has never raised a contention that besides the share which the plaintiff got on account of the Will and the Gift deed there is any other share which has been mortgaged with him. Therefore, in the circumstances, the decree will have to be passed not for the redemption of the suit property as has been passed by the trial Court but a decree only in respect of 1/4th joint share admeasuring 1 Acre - 8 Gunthas in actual possession and vahiwat of the defendant-appellant will have to be passed. If such a relief is granted, it could not be said that by granting such relief any prejudice is caused to the appellant or any injustice is caused in the case.
27. The learned advocate for the appellant, however, urged before me that the plaintiff's plaint is not tenable in view of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. He put reliance on sections 7 and 8 of the said Act of 1947. If the provisions of sections 7 and 8 of the said Act of 1947 are read, then it becomes quite clear that they do not support his contention. Section 8 says that no land in any local area shall be transferred or partitioned so as to create a fragmentation. Therefore, what is going to be passed is a decree for joint possession of 1/4th share in the suit properties which was mortgaged with the present appellant-defendant and the decree is not going to partition or create any fragmentation in the present case. Section 7 then says that no person shall transfer any fragmentation in respect of which a notice has been given under sub-section (2) of section 8 except to the owner of a contiguous survey number of recognised sub-division of a survey number. If the extract of the record of rights at Exh. 4 is considered, then it will be quite clear that the present appellant and his brother are the holders of another 1/4th share in the suit lands. Therefore, the transfer in question is to the other co-owner in the same survey number and, therefore, it could not be said that the said transfer is hit by the provisions of the said Act of 1947.
28. The learned advocate for the appellant further urged before me that the appellant-defendant had raised a contention of tenancy and, therefore, it was necessary to raise an issue and to make a reference to the competent authority under section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948. But if the provisions of section 100 of the Code of Civil Procedure are read, then it will be clear that it is not now open for Shri Gole in the second appeal to raise that contention. Apart from this technical objection to the said contention, from the material on record also it is quite clear that there is no substance in the said contention of Shri Gole. It is settled law that whenever a person is raising a contention that he is a tenant of a land governed by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, it is for him to give all the particulars and details regarding the tenancy like the date from which the tenancy commenced, the agreed rent between the parties, the payment receipt for payment of rent. If the written-statement of the appellant-defendant is read carefully, then it would be quite clear that the pleadings of the appellant are vague. It is settled law that by merely raising a vague contention under the Bombay Tenancy and Agricultural Lands Act the applicant-occupier was a tenant of the land in question that will not warrant raising of any issue and then referring it to the competent Court under section 85-A. It must be mentioned here that the present appellant had never given any application to the trial Court seeking to raise such an issue and asking the trial Court to make a reference under section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948. Even in his deposition, the appellant has not given any particulars as to when the tenancy began, what were terms of the alleged tenancy. If the document at Exh. 43 is read, then it would be quite clear that the said document gives a date below the said contention raised on his behalf. Exh. 43 clearly mentions that the appellant was put in possession of the property in question by the executant on the date of the transaction. Therefore, that document clearly shows that the appellant had come in possession of the property in question on the date of the document at Exh. 43. His contention that he was the tenant of the land four to five years prior to the transaction in question is obviously a vexatious contention and, therefore, it was at all necessary to raise any issue on the said plea and to make a reference to the competent Court.
29. Thus, I hold that the present appeal will have to be dismissed, but the decree passed by the first appellate Court will have to be modified not only as indicated above but also by passing a final decree for redemption, because there is no question of taking any action as per the agreement between the parties as alleged in Exh. 43. The mortgagee has to return the mortgage money of Rs. 800/- and to get the property redeemed. Therefore, when there is no question of taking any action as per the agreement between the parties as embodied in Exh. 43, there is no question of passing any preliminary decree. If the provisions of Rule 14-A of Order 37 of the Code of Civil Procedure are read, then it would be quite clear that it is open to the Court to pass a final decree of redemption straightway instead of passing a preliminary decree of redemption. Therefore, in the circumstances, I hold that the decree passed by the first appellate Court will have to be modified by passing a final decree for redemption. As I have already pointed out that there is a misdescription of the suit property in the plaint as well as in the mortgage deed, by exercising discretion under Order VII, Rule 7 and section 151 of the Code of Civil Procedure, is passing necessary decree in favour of plaintiff.
29. Thus, the present appeal deserves to be dismissed in toto. However, the decree passed by the first appellate Court is set aside and in its place the following decree is passed :
"It is hereby ordered and decreed that the plaintiff do pay in Court the amount of Rs. 800 on or before 20th December, 1994. It is hereby ordered and decreed that on the plaintiff depositing the amount of Rs. 800/-, the defendant do execute a deed of reconveyance of the property viz. joint 1/4th share out of the suit properties in favour of the plaintiff and he should bring in Court all the documents in his possession and power relevant to the mortgaged property.
And it is hereby further ordered and decreed that upon the mortgagee executed the deed of reconveyance or in case if he fails to execute the deed of reconveyance, then the plaintiff would be entitled to get the deed of reconveyance executed through Court at the costs of the defendant.
It is hereby further ordered and decreed that the said amount of Rs. 800/- be paid out of Court to the defendant and the documents, if any, delivered by the defendant in Court be delivered to the plaintiff and the defendant do forthwith deliver possession of the mortgaged property of 1/4th joint share out of the suit properties to the plaintiff.
In case the plaintiff fails to deposit the amount as ordered, above the defendant will be at liberty to apply for foreclosure of the mortagage."
Both the parties are directed to bear their respective costs throughout.