Patna High Court
Darshan Dass And Anr. vs Ganga Bux And Ors. on 14 July, 1961
Equivalent citations: AIR1962PAT53, AIR 1962 PATNA 53
JUDGMENT Tarkeshwar Nath, J.
1. These two first appeals are by the plaintiffs of two title suite. First Appeal No. 240 of 1956 arises out of Title Suit No. 22 of 1955 whereas the other First Appeal No. 446 of 1956 arises out of Title Suit No. 15 of 1955.
2. The facts giving rise to these litigations are these. The plaintiff of Title Suit No. 22 of 1955 obtained a decree for money against defendants 2 to 4 (defendants 2nd party) for a sum of Rs. 19,112/8/- in Money Suit No. 37 of 1953 and filed Execution Case No. 77 of 1954 for executing that decree. Similarly, the plaintiff of Title Suit No. 15 of 1955 obtained another money decree fur a sum of Rs. 4,946/3/3 pies in Money Suit No. 107 of 1953 against the same defendants and there was an Execution case No. 90 of 1954 in respect of that decree. It appears that defendant No. 1 (defendant 1st party) of both the suits got a deed dated the 20th of April, 1950 (Exhibit E) executed in his favour by Hari Ram Jalan, husband of defendant No. 4 and father of defendants 2 and 3, in respect of a house in the town of Muzaffarpur for a sum of Rs. 10,000/-. The controversy between the parties in the present case was as to whether this deed was a mortgage by conditional sale or an out and out sale with a condition of repurchase.
In the two execution cases defendant No. 1 filed applications under Order 21, Rule 58 of the Code of Civil Procedure claiming that he was the owner of the attached house in question and it was not liable to sale. On the 10th of February, 1953, his objections were allowed and the executing court came to the conclusion that the deed dated the 20th of April, 1950, was an out and out sale with a condition of repurchase. It is alleged, further, that the disputed property was sold on the 15th of November, 1954, in Execution Case No. 77 of 1954 and it was purchased by Satyadeva Chaudhary, defendant No. 5, (defendant 3rd party) of Title Suit No. 22 of 1955. Defendants 1 to 4 are common in both the suits. In these circumstances, the plaintiffs of the two suits sought for declarations that the deed dated the 20th of April, 1950, executed by Hari Ram Jallan, husband of defendant No. 4 and father of defendants 2 and 3, in favour of defendant No. 1 (defendant 1st party) was a mortgage by conditional sale and not an out and out sale with a condition of repurchase.
3. The suits were contested by defendant No. 1 mainly on the ground that the said deed was really a sale with a condition of repurchase and not a mortgage by conditional sale as alleged by the plaintiffs. His contention found approval in the trial court, and the Additional Subordinate Judge on a consideration of the evidence came to the conclusion that the said deed dated the 20th of April, 1950, was not a deed of mortgage by conditional sale, but, it was an out and out sale with a condition of repurchase. On that finding, he dismissed both the suits. Hence the plaintiff's have preferred these appeals.
4. The question which arises for consideration in these appeals is as to whether the deed dated the 20th April, 1950, was a deed of mortgage by conditional sale or a deed of sale with a condition of repurchase. In order to ascertain the intention of the parties, it is much better to consider the various recitals of the document itself, It appears that the nature of the document, according to the description in the deed itself, was a deed of sale for a definite period, and the amount of consideration was Rs. 10,000/-. Mr. Kailash Roy for the, appellants has referred to the following portion of that document :
""'Hence I, the executant, desired to take loan from any creditor and to increase the capital of grain business so that I might expect considerable profit out of a big capital."
Learned counsel submitted that the word "loan" in this document was significant and an inference should be drawn that the effect of this transaction was that of a mortgage and not a sale. This Word "loan'', however, cannot lead to that inference.
AS I proceed further with the consideration of this document, I rind that there is a recital in clear terms that the executant was executing a deed of absolute sale in favour of Ganga Bux (defendant No. 1). The executant further agreed that the vendee on entering into possession should get his name entered in the office of the landlord and the Municipality. In cases of mortgage, the name of the mortgagor still remains in the office of the landlord as the tenant paying rent, although the mortgagee might pay rent to the landlord and what happens is that the landlord only enters the name of the mortgagee on the back of the receipt indicating the mortgagee as the person through Whom the rent was received. The mortgagee does not get himself mutated in the office of the landlord's sherista as a tenant in respect of a holding. This being the position, the stipulation between the parties that the vendee was to get his name mutated in the office of the landlord suggests that the intention of the parties was that the property dealt with by that deed was being transferred and not merely mortgaged. I would refer to another relevant portion of that deed which runs thus :
''I, the executant declare that I expressed my desire to the said vendee that if I, the executant repay the sum of Rs. 10,000/- (Rupees ten thousand) the consideration money covered by the sale deed up to 1-5-1955, which is the essence of contract, in that case, the claimant shall lake pity upon me, the executant, and on taking Rs. 10,000/-aforesaid, shall execute a deed of sale in favour of me, the executant, at my cost and he himself shall cease to have all concern. If, I, the executant fail to repay the consideration money covered by this deed of sale, by 1-5-1955, which is the essence of contract, in that case, I, the executant, shall have no right to take back this deed of sale, nor shall the claimant or his heirs and representatives shall be bound to execute the deed of sale. This deed of sale as it has been completed, shall Redeemed to be a deed of absolute sale. Be it noted that on account of the recitals entered in this paragraph this deed cannot at all be deemed to be of a deed of conditional sale, rather it will be deemed to be a deed of absolute sale. This para cannot have the effect of mortgage by conditional sale, according to the law of conditional sale, rather it will have the effect of a deed of absolute sale."
The portion quoted above puts the matter beyond any shadow of doubt that the executant was executing a deed of sale inasmuch as there is a clear stipulation that if the amount of consideration would be paid by the 1st of May, 1955, the property would be reconveyed to the executant. At the time of the execution of this deed, the parties had in their mind distinction between a mortgage by conditional sale and an absolute sale which becomes clear from the last sentence of the quotation referred to above. Towards the end of thus deed the executant further stated that he executed the deed of absolute sale as per stipulations made above, and the endorsement on the , margin further indicates that Hari Ram Jallan was executing a deed of absolute sale for a sum of Rs. 10,000/-. The question as to whether a particular document is a mortgage bond by conditional sale or an out and out sale with a condition of repurchase depends on the facts and circumstances of each case. The real crux is as to whether title is to be re-conveyed by the execution of another sale deed and whether that term has been stipulated in the deed itself which is the subject-matter of interpretation. In the present case the deed (Exhibit E) contains such a term of reconveyance in clear and specific words. If a document is couched in a language of Uncertainty, dubiousness and ambiguity and it is not possible to ascertain its nature from a perusal of it, then it is permissible to determine the intention of the parties as envisaged in the document or even from surrounding circumstances. Mr. Kailash Roy for the appellants pointed out that even after the amendment of Section 58(c) of the Transfer of Property Act, the parties to the deed (Exhibit B) did not choose to have two separate documents and as such he urged that there was a presumption that they intended that a mortgage deed was being executed and not a deed of sale. He referred to the decision in the case of Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345 in support of his proposition. The proviso to Section 58(c) of the Transfer of Property Act was considered in that case and their Lordships held that if the sale and 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, that is to say, the mere fact that there was only one document did not necessarily mean that it must he a mortgage and could not be a sale. It was further observed that if the condition of repurchase was embodied in the document itself that effected or purported to effect the sale, then it was a matter for construction which was meant. Learned Counsel for the appellants Urged that the presumption which arose in this case from the execution of only one document was not rebutted by defendant No. 1. The answer to this contention is that the words themselves of this deed are clear and specific indicating that a sale deed was being executed. The decision cited by the learned counsel is an authority for another proposition, namely, that if the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended must be ruled out. The real question in such a case was not what the parties intended Or meant but what was the legal effect of the words which they used. Looking at the deed (Exhibit E) from this stand point, I find that it was a sale deed with a condition of retransfer. The relationship of debtor and creditor did not exist and there was no debt for which the transfer Was a security. There was a transfer of all the rights in the property reserving only a personal right of repurchase within a stipulated time.
5. Learned counsel for the appellants referred to two circumstances in support, of his submission that the intention of the parties was to execute a mortgage deed and not a sale deed. The first one is culled from the deed itself. The executant stated in the deed that he had received a sum of Rs. 500/- before the execution of the deed for purchase of stamp papers and also for Other expenses relating to the deed of sale. Reference has been made to Section 29 of the Indian Stamp Act. which provides that in the absence of an agreement to the contrary, the expense of providing the proper stamp duty in the case of a mortgage deed shall be home by the person executing that deed. On the basis of this provision, it has been urged that the executant Hari Ham Jallan having paid the price of the stamp, which was required for the execution of the deed (Exhibit E), it was a clear indication that he intended to execute a deed of mortgage and not that of sale. Apart from this, there is no material for coming to the conclusion as to in what circumstances the executant paid for the stamp. In any event, a mere payment of the cost of stamp by the executant Hari Ram Jallan will not alter the nature and character of the deed (Exhibit E).
6. Another circumstance pointed out by the learned counsel was that the value of the house in question, which was dealt with by Exhibit E, was very much more and the evidence adduced by the plaintiffs in that connection was accepted by the trial Judge. That being, so, he urged that the inadequacy of consideration was a ground for holding that the deed was, one of mortgage and not of sale. The trial Judge observed that evidence had been adduced to the effect the value of the house in suit would be more than Rs. 28,000/-in 1950 the document was executed and the house was sold in auction for Rs. 7,715/- with an encumbrance of Rs. 10,000/- in Execution Case No. 77 of 1954 filed by the plaintiff of Title Suit No. 22 of 1955. In my opinion, the inadequacy of consideration is not by itself sufficient to outweigh the intention of the parties executing the document, which was expressed in clear and explicit terms in the deed itself. There can be more than one reason for selling a property at a lower value. The pressing necessity and the dearth of a purchaser might have been responsible for such a transaction. Mr. B. C. De for the contesting respondent referred to the decision in the case of Ram Narain v. Manki Singh, ILR 133 Pal 638 : (AIR 1954 Pat 562) in support of the proposition that if the terms of a registered document of sale are clear and unambiguous, the parties to the transaction or their successors-in-interest should not be allowed under Section 92 of the Evidence Act to prove by parole evidence that it was intended to operate as a deed of mortgage. In view of my finding that the terms of this deed (Exhibit E) are clear and specific, they serve as a best guide to determine the nature of the deed. Any other consideration, either inadequacy of price or payment of the cost of stamp, cannot arise. I am, therefore, in agreement with the finding of the learned trial judge that the document executed on 20th April, 1950, in favour of defendant No. 1 by the husband of defendant No. 4 was not a deed of mortgage by conditional sale but a deed of an out and out sate with a condition of repurchase.
7. In the result, the appeals fail and are dismissed but without costs in the circumstances of this case.
Mahapatra, J.
8. I agree.