Patna High Court
Rajmangal Singh vs Kameshwar Pd. & Ors on 13 February, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.884 of 1978
Against the judgment and decree dated 5th October 1978 passed by
2nd Additional Subordinate Judge, Sitamarhi in Title Suit No. 16 of
1976/ 79 of 1976.
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Rajwati Devi & Ors.
.... .... Defendants-Appellants
Versus
Prem Nandani Sinha & Ors.
.... .... Plaintiffs-Respondents
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Appearance :
For the Appellants : Mr. Yogendra Mishra, Advocate.
Mr. Durgesh Nandan, Advocate.
Mr. Ram Nath Saran, Advocate.
Miss. Manisha Prakash, Advocate.
For the Respondents : Mr. Ray Shivaji Nath, Sr. Advocate.
Mr. Ray Saurabh Nath, Advocate.
Mr. Amrit Anunay, Advocate with him.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 13-02-2013
Mungeshwar 1. The defendants have filed this first appeal against the
Sahoo, J.
judgment and decree dated 5th October 1978 passed by the learned 2nd Additional Subordinate Judge, Sitamarih in Title Suit No. 16 of 1976/ 79 of 1976 whereby the learned trial court decreed the plaintiffs' suit for redemption.
2. The plaintiffs respondents filed the aforesaid suit for redemption of the mortgage dated 8.8.1973 executed by the plaintiff No.1 in favour of defendant No.3 with respect to the suit property Patna High Court FA No.884 of 1978 dt.13-02-2013 -2- comprised within ward No.13 holding No.90 measuring 1 kattha 10 dhur. According to the plaintiffs grandfather of the plaintiffs namely Ambika Prasad was the owner of the property. After the death of Ambika Prasad the father of the plaintiff No.1 namely Sitaram inherited the property and on his death the plaintiff No.1 inherited. In the revisional survey R.S. plot No.189 (ka) to 189(gha) measuring 46 decimal were carved out of C.S. plot No. 1952 which were recorded in the name of plaintiff No.1. The plaintiff No.1 was in need of money of Rs.8000/- and he requested the defendants for loan on the basis of simple mortgage with respect to suit property including the house measuring 1 kattha 10 dhur. The defendants insisted for executing mortgage by conditional sale and accordingly a mortgage deed by conditional sale was executed on 8.8.1973 for a period of 2 years. The defendants insisted that the half of the court fee and other expanses which will be spent by them including interest @ 1 rupee per month should also be added in the loan amount and, therefore, the amount mentioned in the mortgage by conditional sale was Rs.10,445/-. Bihar Relief Committee, Sitamarhi was tenant of the plaintiff in the suit house from before so it was settled that on expiry of two years the plaintiffs would repay Rs.10,445/- then the defendants will return the deed making necessary endorsement on the back. The plaintiffs tendered the Patna High Court FA No.884 of 1978 dt.13-02-2013 -3- amount to the defendants on 1.8.1975 and also on 7.8.1975 the defendant No.3 avoided and on 12.8.1975 the defendant No.3 said that two years of limitation has expired as such there is no question of refund of money arises because now it has became a sale. The relief committee vacated the suit premises on 30.4.1975. The plaintiffs locked it but in the night of 12.8.1975 the defendants forcibly entered into the house. 144 Cr.P.C. proceeding was initiated between the parties. Thereafter, the plaintiffs deposited the amount as provided under Section 83 of the T.P. Act on 3.9.1975. According to the plaintiffs the deed was not a sale deed rather it was mortgage by conditional sale and the defendants never exercised power for foreclosure as provided under Section 67 of the T.P. Act.
3. The defendants filed the contesting written statement mainly contending that it was agreed between the parties that the form of the deed will be a Kebala Baimiyadi for a consideration of Rs. 10,445/- and accordingly, the sale deed was executed and the defendant No.3 was to be in possession of the same. The plaintiff was required to refund the said amount by 7.8.1975 and then the defendant would have re-conveyed the property and deliver vacant possession in favour of the plaintiffs. The plaintiff No.1 failed to refund the amount of Rs.10,445/- by 7.8.1975 as such he lost the right of re-conveyance. Entire consideration amount was paid to the Patna High Court FA No.884 of 1978 dt.13-02-2013 -4- plaintiffs and in fact the deed which is out and out sale was executed. The expenses incurred by the defendants i.e. stamp, registration fee and interest etc. were never included in the consideration amount. Since it was out and out sale there was no necessity to deposit the amount under Section 83 of the T.P. Act. The relief committee, was never in the suit premises nor the suit premises was ever vacated by relief committee rather defendant No.3 had been residing with his family in the suit house from 8.8.1973 i.e. the day of execution of the sale deed. He has spent Rs.4500/- in repairing the suit premises.
4. On the basis of the above pleadings of the parties, the following issues were framed by the trial court:-
I. Is the suit as fraud maintainable ? II. Have the plaintiffs any cause of action or right to sue ? III. Is the suit hit by section 12 of the Bihar Money Lenders Act ? IV. Is the deed dated 8.8.73 (Ext. E) executed by plaintiff no.1 in
favour of defendant no.3 a deed of out and out sale with a condition of repurchase or a deed of mortgage by conditional sale ?
V. Are the plaintiffs entitled to a decree for redemption as sought for ?
VI. To what relief or reliefs are the plaintiffs entitled ?
5. The trial Court recorded a finding that Ext. E is a mortgage Patna High Court FA No.884 of 1978 dt.13-02-2013 -5- by conditional sale and accordingly decreed the Suit.
6. The learned counsel appearing on behalf of the appellants submitted that in this case the pleading of the plaintiffs is contrary to the statements made in the deed itself. Since the deed is registered one, the oral evidence which is contrary to the terms and conditions of the deed are not admissible. According to the learned counsel in the deed dated 8.8.1973 it is specifically mentioned that possession of the suit property was delivered to the defendants appellants but contrary to this the plaintiffs pleaded that one relief committee was in possession of the suit house and on vacation the defendant broke open the lock and entered into the suit premises. If this case of the plaintiffs is believed then the defendants are entitled for interest at the rate of Rs. 1 per month as mentioned in the deed dated 8.8.1973. The plaintiffs respondents therefore, have not deposited the amount due to be paid to the appellants as provided under Section 83 of the Transfer of Property Act. Therefore, the deposit itself is not complete.
7. The learned counsel further submitted that the appellants paid the entire adequate consideration amount which was the market value of the property at the time of execution of the document Ext.(E). The name of the appellants was also mutated and he was paying tax to the municipality. In the document Ext.(E) itself it is Patna High Court FA No.884 of 1978 dt.13-02-2013 -6- mentioned that within two years the amount has to be returned to the defendants appellants which was never returned. Here since this was the agreement between the parties time was the essence of the contract. In such circumstances, on expiry of two years the right of re-conveyance was lost. The document itself is in two parts. In the document in first part it is mentioned about complete sale and full consideration amount i.e. market price of the suit property was given to the plaintiff and plaintiff was put in possession thereof. In the second part the agreement was entered into between the parties regarding re-conveyance therefore, all these factors if considers together it will lead to only and only conclusion that the document executed on 8.8.1973 is out and out sale wherein subsequently it was agreed between the parties that if the amount of consideration is paid back within two years the appellant will re-convey the property. Without considering these settled laws the trial court has wrongly held that the document is mortgage by conditional sale.
8. The learned counsel further submitted that the scribe of the document was not examined and the right of re-conveyance was not exercised by the plaintiffs within two years. The appellants produced the sale deeds of the locality of a contiguous plot to show that the consideration amount mentioned in the deed is the market value of the land but the trial court did not consider the same in its right Patna High Court FA No.884 of 1978 dt.13-02-2013 -7- perspective. In the deed itself the word consideration amount has been mentioned. If the document was mortgage by conditional sale then in the document it should have been mentioned as mortgage money. All these facts lead to the conclusion that there is no relationship of mortgagor and mortgagee between the parties. In support of his contention on these points stated above the learned counsel relied upon AIR 1960 SC 301, 1998 PLJR 48 SC and AIR 1974 Patna 246. The learned counsel further submitted that the intention of the parties was to execute out and out sale deed and pursuant to that possession was delivered and the appellant also spent money in repairing and re-modeling the suit property. If it was mortgage only then there is no question of repairing or renovating the suit house arises. According to the learned counsel the trial court has not properly appreciated the evidence and principle of law. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside. It may be mentioned here that the written argument has been filed by the appellants dealing with these points.
9. On the contrary, the learned senior counsel Mr. Ray Shivaji Nath appearing on behalf of the respondents submitted that the condition of return of the amount has been mentioned in the same very document which is the requirement of the law as provided Patna High Court FA No.884 of 1978 dt.13-02-2013 -8- under Section 58 (C) of the Transfer of Property Act. The document speaks that after return of the amount endorsement should be made in the back of the deed itself which clearly indicate that it was mortgage by conditional sale. According to the learned counsel the pleadings of the parties or the oral evidences contrary to the terms and conditions mentioned in Ext. (E) will not be the decisive factor for decision as to whether the document is out and out sale with a condition to repurchase or it is a mortgage by conditional sale. For construing the document the entire contents of the document has to be read together and then considering the circumstances the decision has to be made. No doubt, in the deed it is not mentioned that relief committee was in possession as tenant but the defendant admitted that he came in possession of the property from the date of execution of Ext.(E) i.e. 8.8.1973. In the deed it is mentioned that the title will pass to the defendant only after two years if amount of consideration is not returned. If the document was out and out sale and entire consideration was paid then title would have passed on the date of registration of the document itself and it could not have been kept in abeyance for long two years. If the deed was out and out sale then in such circumstances a separate agreement to repurchase would have been executed between the parties and in that case another sale deed is required to be executed by the vendee but is not done in the Patna High Court FA No.884 of 1978 dt.13-02-2013 -9- present case. The sale instances produced by the defendant appellants are with respect to the lands which are of different nature and moreover only because adequate consideration was paid the deed cannot be termed as out and out sale. So far tendering the money within two years is concerned, the plaintiffs have produced reliable evidences to the effect that the amount was delivered within two years but the appellants avoided the same on one pretext or other and on completion of two years he became dishonest and said that it was out and out sale. The learned counsel relied upon decisions reported in AIR 1954 SC 345 and AIR 2008 SC 2510. Further the learned counsel submitted that even if the plaintiffs did not offer the amount within two years then also the period of redemption is 30 years and the agreement if any contrary to law will be void. If the deed is mortgage by additional sale then it can be redeemed by the plaintiff within 30 years. Moreover here the appellant never exercised the right of foreclosure prior to redemption. The learned counsel on these point relied upon 1981 PLJR 178. On these grounds, the learned counsel submitted that the intention of the appellants was dishonest and on frivolous grounds against the settled principles of law set up the defence and on these grounds he has been able to continue in possession of the suit property till today. As such the appellants are liable to pay an Patna High Court FA No.884 of 1978 dt.13-02-2013 -10- exemplary cost and the mense profit.
10. In view of the above contentions of the parties, the point arises for consideration in this case is as to whether the document in question i.e. Ext.(E) dated 8.8.1973 is out and out sale or is a mortgage by conditional sale and whether the judgment and decree passed by the court below is sustainable in the eye of law.
11. It may be mentioned here that this Ext.(E) has been filed by the plaintiffs also which is certified copy and has been marked as Ext.(6). Since the terms and conditions have been reduced to writing the document is required to be construed on the basis of the contents thereof. Any pleading or evidence contrary to the terms and conditions will never vary the terms and conditions and will never change the nature of the deed. From the document the intentions of the parties has to be gathered. The evidences have to be looked into only if the terms and conditions are ambiguous.
12. On these point the settled proposition of law has been laid down by the five judges Bench of the Apex Court in the case of Ramkishorelal and another vs. Kamalnarayan AIR 1963 SC 890 as follows :
"The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention Patna High Court FA No.884 of 1978 dt.13-02-2013 -11- the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in. more than one sense and that sense differs in different circumstances. Again, even where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of convincing."
13. In the case of P. S. Ranakrishna Reddy vs. M. K. Bhagyalakshmi and Anr. (2007) 10 SCC 231 the Apex Court has reiterated the law that the document as is well known, must be read in its entirety. When character of a document is in question, although the heading thereof would not be conclusive. It plays a second role. The intention of the parties must be gathered from the document itself but therefore circumstances attending thereto would also be relevant, particularly when the relationship between the parties in question. For the said purpose it is essential that all parts of the deed should be read in their entirety. The same view has been taken by the Patna High Court FA No.884 of 1978 dt.13-02-2013 -12- Apex Court in the case of State Bank of India and another vs. Mula Sahakari Sakhar Karkhana limited (2006) 6 SCC 293 wherein it has been held that a document, as is well known, must primarily be construed on the basis of the terms and conditions contained therein. It is also trite while construing a document the court shall not supply any words which the author thereof did not use vide paragraph 22.
14. In the case of C. Cheriathan vs. P. Narayanan Embranthiri (2009) 2 SCC 673 the Apex Court has again followed the said decisions vide paragraph 9 and 10.
15. In the case of Chunchun Jha vs. Ebadat Ali and another AIR 1954 SC 345 at paragraph 8 the Apex Court has held has follows :
"Because of the walter of confusion caused by a multitude of conflicting decisions the legislature stepped in and amended Section S. 58(c) of the Transfer of Property Act. Unfortunately that brought in its train a further conflict of authority. But this much is now clear. If the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But the converse does not hold good, that is to say the mere fact that there is only one document does not Patna High Court FA No.884 of 1978 dt.13-02-2013 -13- necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. The legislature has made a clear cut classification and excluded transactions embodied in more that one document from the category of mortgages, therefore it is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words; and if the conditions of Section 58(c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage."
16. In view of this decision of the Apex Court the person who after the amendment chose not to use two documents do not intend the transaction to be a sale, unless they displace that presumption by clear and express words, and if the conditions of Section 58 (C) are fulfilled then the deed should be construed as a mortgage.
17. In the case of Vishwanath Dadoba Karale vs. Parisa Shantappa Upadhye (deceased by L.Rs.) AIR 2008 SC 2510 the Apex Court has also held that if the condition of repurchase is mentioned in the same document then it is a mortgage by conditional sale. Same view has again been taken by the Apex Court in the case Patna High Court FA No.884 of 1978 dt.13-02-2013 -14- of Raj Kishore (Dead) By L.Rs. vs. Prem Singh and others (2011) 1 SCC 657. The Apex Court has held that a bare reading of Section 58 (c) would show that for a transaction to constitute mortgage by conditional sale it is necessary that the condition is embodied in the document that purports to effect the sale.
18. It is better to quote here Section 58 (c) of the Transfer of Property Act for ready reference :
"(a) ..................................................................
(b) ....................................................................
(c) Mortgage by conditional sale. - 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 a 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."
19. Now in view of this provision itself coupled with proviso Patna High Court FA No.884 of 1978 dt.13-02-2013 -15- unless the condition of repurchase is embodied in the document which effects or purports to effect the sale it cannot be construed as a mortgage. In the present case at our hand, in the deed dated 8.8.1973 the condition of repayment of the consideration amount has been mentioned. From the reading of the document it appears that the terms and conditions are not at all ambiguous rather in clear terms it is mentioned that possession is delivered to the defendant and he will take/ receive the income from the suit property for two years. After two years only he will get the name mutated. If the amount is repaid by the plaintiff within two years endorsement shall been made on the back of the document. There is no condition that any re-conveyance deed will be executed by the defendants. If the appellants' case is accepted that it is out and out sale then title vested on the appellants on the date of registration of the document itself i.e. on 8.8.1973. In such circumstances, how can it be said that only after return of the money and by mere making endorsement to that effect on the deed title will again re-vest on the plaintiff. If it is out and out sale then a re-conveyance deed is required to be executed. There is no such condition.
20. The learned counsel for the appellants submitted that according to the plaintiff's case delivery of possession was not given. So far this submission is concerned, it may be mentioned here Patna High Court FA No.884 of 1978 dt.13-02-2013 -16- that in registered deed itself there is clear mention that possession was delivered to the appellant and the appellant shall get the income of the suit property for two years and if he will be dispossessed then the defendant will be entitled to receive interest @ Rs. 1 per month. In the written statement also the defendant pleaded that he came in possession of the suit property on the date of execution of the deed on 8.8.1973. Now therefore, the submission of the learned counsel for the appellants to the effect that there is no relationship of mortgagor and mortgagee has got no force. No doubt, these words have not been stated in the deed Ext. (E) but these are the circumstances which clearly indicate that the possession was delivered to the defendant who was getting the income in lieu of interest on the amount advance to the plaintiff.
21. So far the decision relied upon by the learned counsel for the appellants i.e. AIR 1960 SC 301 Bhaskar Waman Joshi (deceased) and others vs. Shrinarayan Rambilas Agarwal (deceased) and others it appears that in that case the Apex Court has given the guidelines for consideration while construing the nature of a document. The Apex Court at paragraph 7 has held as follows :
"The proviso to this clause was added by Act XX of 1929. Prior to the amendment there was a conflict of decisions on the question whether the condition Patna High Court FA No.884 of 1978 dt.13-02-2013 -17- contained in a separate deed could be taken into account in ascertaining whether a mortgage was intended by the principal deed. The Legislature resolved this conflict by enacting that a transaction shall not be deemed to be a mortgage unless the condition referred to in the clause is embodied in the document which effects or purports to effect the sale. But it does not follow that if the condition is incorporated in the deed effecting or purporting to effect a sale a mortgage transaction must of necessity have been intended. The question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances. The circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account, but the value to be attached thereto must vary with the degree of formality attending upon the transaction. The definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and the mortgagee, the price being charged on the property conveyed. In a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. What distinguishes the two transactions is Patna High Court FA No.884 of 1978 dt.13-02-2013 -18- the relationship of debtor and creditor and the transfer being a security for the debt. The form in which the deed is clothed is not decisive. The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property. As pointed out by the Judicial Committee of the Privy Council in Narasingerji Gyanagerji v. P. Parthasaradhi, 51 Ind App 305: (AIR 1924 PC 226), the circumstance that the transaction as phrased in the document is ostensibly a sale with a right of repurchase in the vendor, the appearance being laboriously maintained by the words of conveyance needlessly iterating the description of an absolute interest or the right of repurchase bearing the appearance of a right in relation to the exercise of which time was of the essence is not decisive. The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to Patna High Court FA No.884 of 1978 dt.13-02-2013 -19- explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given. Evidence of the contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible."
22. So far this decision relied upon by the learned counsel for the appellants is concerned, there is no dispute about the settled principles of law. In this decision the Apex Court has given the differences between the out and out sale and a mortgage by conditional sale. In mortgage by conditional sale a charge is created in the property which impliedly creates relationship of mortgagor and mortgagee. In case of out and out sale a condition of re- conveyance is embodied. In the present case at our hand, there is no condition of re-conveyance. Only the condition is that on repayment the same shall be endorsed in the deed. The condition is that for these two years the defendants will be entitled to use the usufruct that is the income from the suit premises and he was put in possession. This condition implies that the defendant was put in possession as security of the loan and he was getting the income as interest of the loan.
23. The learned counsel for the appellants submitted that in the plaint at paragraph 23 the plaintiffs pleaded that this condition of Patna High Court FA No.884 of 1978 dt.13-02-2013 -20- repayment within two years and if not paid within two years the right will be ceased has been fraudulently entered in the deed. So far this submission is concerned, as stated above on the basis of the pleadings the nature of the deed cannot be decided. According to the learned counsel if this second portion of the deed is fraudulently mentioned then only the first portion of the deed remained which is out and out sale. It may be mentioned here that the defendant in the written statement denied this allegation and moreover there is no evidence adduced by the plaintiff to the effect that in fact it was fraudulently entered into.
24. The learned counsel for the appellants submitted that full consideration amount was paid which was the market price. In my opinion, only because the market price has been paid on that basis it cannot be inferred that the parties had the intention to execute the out and out sale deed particularly when in the present case the terms and condition mentioned in the deed are unambiguous and clear. The terms and conditions are in terms of Section 58 (c) of the T.P. Act.
25. The learned counsel submitted that documentary evidences i.e. Ext. (E) series has been produced to prove that the market value of the property was Rs.10,000 and odd in the year 1973. In my opinion, even if it is held that it was the market value then also here from the other attending circumstances no finding can be recorded Patna High Court FA No.884 of 1978 dt.13-02-2013 -21- that the deed was out and out sale.
26. The learned counsel submitted that municipal tax has been paid by Ext. A series. In my opinion, on this ground also the document Ext. (E) cannot be construed as out and out sale. Admittedly, the appellant was in possession of the property therefore, notices were given to him for payment of the tax which he paid as such it will not change the character of the deed.
27. The plaintiff's case with regard to the repayment is concerned is that he tendered the amount on 1.8.1975 and 7.8.1975. On the contrary, the defendant's case is that within two years the plaintiff never tendered the amount to the defendants. In support of their respective case the parties have adduced oral evidences. PW 5 has stated that the plaintiff had gone to pay the amount of Rs.19,445/- on 1.8.1975 and 7.8.1975 but he avoided. On the ground that the document was not available because of flood. On 17.8.1975 the defendants refused saying that the deed is no longer a mortgage deed. Such is the evidences of PW 6, PW 7, PW 25 and plaintiff PW
28.
28. So far the question as to whether the amount was offered by the plaintiff to the appellant or not within the period is concerned it may be mentioned here that this question will be relevant only in a suit for specific performance of contract. Here if it is held that the Patna High Court FA No.884 of 1978 dt.13-02-2013 -22- deed is out and out sale then the suit itself will not be maintainable because the suit has been filed redemption of the mortgage. If it is held that the deed is mortgage by additional sale then the period for redemption is thirty years.
29. In the case of Smt. Janki Devi vs. Mt. Murta Kuer and others AIR 1974 Patna 246 this Court held that where the condition referred to in section 58 (c) is embodied in the document, it need not necessarily be deemed to have been intended to be a mortgage. The presumption, however, will be that the parties intended to regard the transaction as one of mortgage, and unless that presumption is displaced by other cogent circumstances, the document must be construed as a mortgage by additional sale. It appears that in that case also in the deed it was mentioned as deed of conditional sale. It was for one year and the claimant was in possession. The claimant and her heirs and representatives remained in possession and continued to appreciate the produce income thereof. The claimant was paying tax and rent of the Malik to the extent of 1/3 rd share on obtaining receipt. Only annual repair of the house was to be done by the executant. This Court held that the document was a deed of mortgage by conditional sale. It appears that in the present case also the conditions are same. Here it is not necessary to restate the conditions mentioned in the deed. In my opinion, therefore, only Patna High Court FA No.884 of 1978 dt.13-02-2013 -23- because either the appellant has paid the adequate consideration or paid the municipal tax and he was put in possession no finding can be recorded that the deed was an out and out sale deed with a condition to repurchase.
30. It appears that the defendants have examined DW 1, 2, 3, 5 and 6 on the question of payment of municipal tax and the DW 4, 7, 10 and 17 on the point that the defendant had taken over possession just after the execution of Ext. (E). Likewise the defendants have examined DW 7, 10, 15, 17, 19, 22 and 23 on the point that the market price of the land was Rs.10,445/- which was adequate consideration.
31. I have already discussed the points raised by the learned counsel regarding payment of tax or coming in possession of the property or that the consideration was adequate and the defendants appellants have adduced evidences as discussed above on that line but from the discussed made above the intention of the parties was otherwise. The condition is embodied in the same document. It is clearly stipulated that after two years only the appellants will be entitled to get the name mutated. During this period the appellants will be entitled for appropriating the income from the suit premises. It further appears that the register of registration office was produced before the Court below Ext.18 and 18-A and it was found that the Patna High Court FA No.884 of 1978 dt.13-02-2013 -24- deed itself was registered as usufructuary mortgage deed.
32. The plaintiffs have produced Ext.12 to show that the amount has been deposited under Section 83 of the Transfer of Property Act and Ext. 13(A) that is Misc. Case No. 32 of 1975 shows that under Section 83 amount was deposited on 13.11.1975. The defendants did not exercise the right of foreclosure under Section 67 of the Transfer of Property Act.
33. In view of the above settled proposition of law laid down by the Apex Court as well as by this Court and the circumstances and the evidences produced by the parties, I am satisfied that the deed in question that is Ext. (E) is a mortgage by conditional sale and not a deed of out and out sale. Therefore, the finding of the trial court is hereby confirmed.
34. In the result, this first appeal is dismissed with cost of Rs.10,000/- payable by the defendants-appellants to the plaintiffs- respondents within two months, failing which the respondents shall realize the same through process of the Court. The interim order, if any, is vacated.
Patna High Court, Patna. (Mungeshwar Sahoo, J.) Date : 13.02.2013 A.F.R. S.S.