Gauhati High Court
Mahammad Sanoowar Ali Majumdar And Ors. vs Asman Ali Majumdar And Ors. on 18 February, 1988
Equivalent citations: AIR1989GAU71, AIR 1989 GAUHATI 71, (1990) 1 CIVLJ 163
Author: B.L. Hansaria
Bench: B.L. Hansaria
ORDER B.L. Hansaria, J.
1. The present suit was filed in 1978 praying for a decree of redemption of mortgage relating to the suit land. The case , of the plaintiffs, in short, was that the suit land was mortgaged to defendants 1 to 3 on 2-3-62 and the contract was embodied in two documents executed on the same date by one of which the properly was absolutely transferred to these defendants and by the second an Ekrarnama was executed by these defendants to re-transfer the suit land. According to the plaintiffs, the transaction was in the nature of an English mortgage. The defendants denied the averments and a plea was also taken that the suit was barred by res judicata in view of the fact that an earlier suit (TS 16/70) filed by the plaintiffs was dismissed on contest which decree was affirmed in an appeal. In the earlier suit the plaintiffs had prayed for specific performance of the agreement relating to re-conveyance of the suit land by relying on the Ekrarnama. The suit was, however, dismissed, so too the appeal arising out of it.
2. The issue relating to res judicata was taken up as a preliminary issue on the prayer of the learned counsel of both the sides. By an order passed on 10-2-81 it was held that the suit was barred by res judicata and the case was fixed for peremptory hearing on 30-3-81. On that date, it was however, felt that in view of the finding relating to res judicata no useful purpose would be served in proceeding with the case. The suit was therefore dismissed. Feeling aggrieved, the plaintiffs have preferred this revision.
3. The revision came up for hearing on 30-8-84 on which date it was stated that the view taken by the Court below that the suit was barred by res judicata could not be upheld. The matter was nonetheless not remanded to the trial Court because both the sides desired that this Court itself should go into the merits to put an end to the litigation between the parties reging at least from 1970. The case was, therefore, fixed for further hearing after four weeks. Further hearing took place on 23-11-84 and by an order passed on that date, the case was remanded to the learned trial Court for reasons given in that order to decide the nature of the tranaction in the light of the observations made in the order. The learned trial Court thereafter heard the parties and has come to the conclusion vide his order dt. 15-1-86 that the transaction must be regarded as "mortgage of simple nature".
4. 1 have heard the learned counsel of both the sides further. It is contended by Shri Nur Mohammad appearing for the opposite parties that the revision itself is not maintainable inasmuch as the suit having been dismissed, though on the ground of res judicata, an appeal lay against the order of dismissal. Shri Laskar however submits that as the learned trial Court had held that the suit was barred by res judicata the revision is maintainable. The submission of Shri Laskar cannot be accepted inasmuch as even if a suit is dismissed on the ground that it is barred by res judicata, the same has to be regarded as final adjudication of the suit which order would amount to decree and as such an appeal did lie against the impugned order, because of which revisional power of this Court cannot be invoked.
5. Despite the fact that the revision is not maintainable, I have deemed it proper to express the views of this Court on the merits of the case also inasmuch as the parties were heard at length on this aspect of the case on many occasions and the matter had even been remanded to the trial court where after the parties had led evidence. Before adverting to the merits of the case, an objection taken by Shri Nur Mohammad that the present suit is barred by Order 2, Rule 2 of the Civil P.C may be disposed of. Though this plea was not taken before the learned trial Court, nonetheless the same being a pure point of law, I have heard Shri Nur Muhammad on this aspect as well In support of his submission Shri Nur Mahammad has referred to Sidramappa v. Raja Shetty, AIR 1970 SC 1059. As per this decision, the requirement of Order 2, Rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. If a cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. It was, however, observed in this decision that where the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit, and in the earlier suit the plaintiff could not have claimed the relief which he sought in subsequent suit, the plaintiffs subsequent suit would not be barred by Order 2, Rule 2. In the present case, the foundation of the two suits being different, it cannot be held that the present suit was barred by Order 2, Rule 2. The observations made in para 22 of theStateof Madhya Pradesh v. State of Maharashtra, AIR 1977 SC 1466 which too are pressed into service by Shri Nur Mohammad do not also show that the present suit was barred by Order 2, Rule 2 inasmuch as what has been stated in that para is that the plaintiff would be barred under this provision only when he omits to sue for or relinquished the claim in a suit with k nowledge that he has his right to sue for that relief as well. This principle has no application to the facts of the present case.
6. We now come to the important question as to whether the two documents executed on 2-3-62 read combinedly could be said to constitute an English mortgage instead of an outright sale with an added agreement of reconveyance. ShriLaskar has contended that (1) low consideration for which the property was sold; (2) both the contracts having taken place on the same date; and (3) the agreement to reconvey the land at the same price at which it was purportedly sold would go to show that the transaction was not really a sale outright with an added agreement to reconvey but was in the nature of English mortgage. Learned counsel submits that in finding out the true purport of the two documents the Court must look into the intention of the parties. He has referred in this connection toThakar Dass v. Tek Chand, AIR 1944 Lahore 175. There is no doubt that in such a matter the intention of the parties would be a very relevant circumstance. In so far as this aspect is concerned, the earlier suit (TS 16/70) filed by the plaintiffs would itself show that according to them the transaction was one of outright sale with an added rider of reconveyance. ShriLaskar, however, urges that the fact that the Ekrarnama was also executed on 2-3-62 would show that the two transactions together constituted a mortgage and he refers to Prag Dutt v. Hari Bahadur, AIR 1947 All 334. In that decision it was held that the two documents with which the Court was seized were evidence of one transaction and the transaction was mortgage by conditional sale and not a sale. The present transaction cannot, however, be regarded as mortgage by conditional sale in view of the proviso added to Section 58 of the T.P. Act by Act 20 of 1929 which states that no transaction shall be deemed to be mortgage unless the condition is embodied in the document which effects or purport to effect the sale. As in the present case the condition of reconveyance is not embodied in the document purporting to effect sale, the present transaction cannot be regarded as a mortgage by conditional sale. It is perhaps realisation of this difficulty which had led the plaintiffs to take the stand that the present transaction was an English mortgage.
7. Shri Laskar has stated that as the reconveyance was agreed at the amount at which the land was sold, the same would show that the transaction was not really an outright sale, as, in case of sale with condition of re-sale after lapse of sometime, the consideration for re-sale would ordinarily be higher. There is undoubtedly some force in this contention. But this factor by itself may not be decisive of the controversy inasmuch as there may be agreements to re-sale property and the price at which it was purchased if the purchaser be in a position to realise some advantage out of the land in the meantime by its usufruct.
7A. As the management of the property was handed over to defendants 1 to 3, Shri Laskar referred to Janaki v. Asad Reza, AIR 1936 Patna 211, wherein it was held that the provision in a mortgage deed for management of the property by mortgagee is a provision which' is not inconsistent with English mortgage. This decision cannot assist the petitioner inasmuch as the transaction therein was admittedly a mortgage, the question for 'determination was regarding the type of mortgage. In the case at hand, what is really required to be decided in the first instance is whether the transaction was of sale outright with a rider to repurchase, or it was one of mortgage.
8. Shri Laskar has contended that the low price at which the transaction took place would support his case of mortgage. In this connection he has referred to the finding of the learned Court below wherein it was stated that the price of per bigha of land on 2-3-62 would have been more than Rs. 334/- per bigha whereas the suit land was sold at Rs. 303/-
per bigha. Of course, the valuation of Rs. 334/-per bigha was in 1956 as it would appear from Exhibit-2 whereas in 1961 it was Rs. 486/- as evideneed by Exhibit-5. It would thus appear that the valuation per bigha in the present ease was definitely on the low side. But from this factor alone it cannot be held that the present was a case of English" mortgage, though this is one of the relevant circumstances for determining the nature of a transaction like the one at hand. What has however, stood in the way of the petitioners in regarding the present transaction as English mortgage is that one of the essentials of English mortgage, as would appear from Section 58(e) of the Transfer of Property Act, is that the mortgagor has to bind himself to pay the mortgage-money on a certain date. From the facts of the present case it cannot, however, be stated that the plaintiffs had bound themselves to repay the mortgage money on a certain date inasmuch as the Ekrarnama speaks of repayment within a period of 8 years, which originally was five years. It cannot, therefore, be stated that the binding was to repay the debt on a certain date.
9. Shri Laskar's another and final submission is that defendants 1 to 3 were allowed to retain possession of the land to enable them to adjust the usufruct towards interest. Even if this was so, it would speak of the transaction being a usufructuary mortgage, and not an English mortgage, as is the ease of the plaintiffs.
10. In view of all that has been stated-above, it cannot be held that the present was a case of English mortgage. So the prayer of the plaintiff claiming a decree of redemption of mortgage cannot be allowed. The revision, therefore, stands dismissed.