Madhya Pradesh High Court
Smt.Parwati Devi vs Smt.Kalawati & Ors. on 12 September, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:21558
1 SA No. 569/2002
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
SECOND APPEAL No. 569 of 2002
SMT. PARWATI DEVI
Versus
SMT. KALAWATI & ORS.
Appearance:
Shri Jai Prakash Mishra - Advocate for the appellant.
Shri Jitendra Singh Kaurav- Advocate for the respondents No.1 to 6.
Reserved on : 11/09/2025
Pronounced on : 12/09/2025
JUDGMENT
This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 02-08-2002 passed by IX Additional District Judge, Gwalior in Regular Civil Appeal No. 38A/2001 as well as judgment and decree dated 13-09-2001 passed by X Civil Judge, Class II, Gwalior in Civil Suit No. 23A/2000.
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2. Appellant is the plaintiff who has lost the case from both the courts below.
3. The facts necessary for disposal of present appeal, in short, are that plaintiff/appellant filed a suit for eviction by claiming that she is the owner and in possession of the property in dispute. Motiram and others had executed registered sale deed dated 24-11-1972 in favour of Mathura Prasad, and on the very same day, a rent note was also executed by Motiram and others admitting that the property in dispute has been taken on rent from Mathura Prasad. Later on, Mathura Prasad sold the disputed property to the appellant by registered sale deed dated 23-11-1993, and therefore, she has become the owner of the disputed property. It was further pleaded that plaintiff is in bona fide need for residential purposes, and it was also pleaded that defendants have not paid the arrears of rent in spite of service of notice. It was further pleaded that defendant No. 1 has filed a civil suit against the plaintiff before the Court of II Civil Judge, Class II, Gwalior for declaration of title and permanent injunction which has been registered as Civil Suit No. 82A/1994 and the same has been pending in which defendants have denied the title of plaintiff.
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4. Defendants filed a written statement and admitted that a sale deed was executed in favour of Mathura Prasad but it was alleged that sale deed dated 24-11-1972 was a sham document and in fact it was a mortgage deed and not a sale deed.
5. The trial court framed issues, and after recording evidence, dismissed the suit on the ground that the sale deed dated 24-11-1972 was not a sale deed but in fact it was a mortgage deed, and therefore, the relationship of landlord and tenant do not exist between the parties.
6. Being aggrieved by the judgment and decree passed by the trial court, appellant preferred an appeal which too has been dismissed.
7. This appeal was admitted on the following substantial questions of law:
"(i) Whether the Courts below committed error in ignoring the evidence of Mathura Prasad (PW.2) and gave a finding that the plaintiff is not owner of the suit house and holding that vide Ex.P.10 and Ex.P.11 no relationship of landlord and tenant exits between them"Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07
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(ii) Whether the plaintiff is entitled for the decree under section 12 (1) (a) and section 12 (1) (e) of the M.P. Accommodation Control Act, 1961?"
8. Challenging the judgments and decrees passed by the courts below, it is submitted by counsel for appellant that the defendants have not denied that a sale deed dated 24-11-1972 was executed in favour of Mathura Prasad. However, it is their contention that the said sale deed was not a sale deed but it was a document of mortgage. It is submitted that defendants did not plead in their written statement that what was the mortgage amount and did not plead that whether the mortgage was subsequently redeemed or not. It is further submitted that defendants did not file any counterclaim for declaration of sale deed dated 24-11-1972 as a sham document, and therefore, the courts below should not have held that the sale deed dated 24- 11-1972 was not a sale deed but it was a document of mortgage.
9. Per contra, the appeal is vehemently opposed by counsel for respondents. It is submitted that the courts below have recorded a concurrent findings of fact that the sale deed dated 24-11-1972 was a mortgage deed and not a sale deed.
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10. Heard learned counsel for parties.
11. According to plaintiff, a sale deed dated 24-11-1972 was executed in favour of Mathura Prasad and a tenancy note was also executed by the vendors in favour of Mathura Prasad. Later on, Mathura Prasad executed a sale deed in favour of plaintiff, and accordingly, on the basis of the registered sale deed executed by Mathura Prasad in favour of plaintiff on 23- 11-1993, it was claimed by plaintiff that now she has become the owner of property in dispute and defendants have become her tenants.
12. Admittedly, defendants did not file any counterclaim for challenging the sale deed dated 24-11-1972 in favour of Mathura Prasad. Admittedly, later on, Mathura Prasad had also executed a sale deed in respect of the suit property in favour of plaintiff on 23-11-1993. Thus, it is clear that the trial court as well as the appellate court should not have gone into the nature of the sale deed dated 24-11-1972 which was executed in favour of Mathura Prasad. Unless and until the sale deed dated 24-11-1972 executed in favour of Mathura Prasad was challenged, there was no reason for the trial court as well as the appellate court to hold that the said sale deed was not a sale deed but it was a document of mortgage.
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13. Furthermore, it is clear that defendants had not pleaded and proved that for how much money, the property in dispute was mortgaged with Mathura Prasad. It has also not been pleaded and proved that when the mortgage was redeemed.
14. Under these circumstances, this court is of considered opinion that in absence of any counterclaim, the trial court as well as the appellate court should not have gone into the nature of the sale deed dated 24-11-1972, and should not have held that it was not a sale deed but it was a document of mortgage. The Supreme Court in the case of Bishwanath Prasad Singh v. Rajendra Prasad and Another, reported in (2006) 4 SCC 432, has held as under:
"24. In Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434] this Court in a case where a transaction in question was said to be a sham transaction opined that oral evidence was not admissible when a party relied upon the said document.
25. In Roop Kumar v. Mohan Thedani [(2003) 6 SCC 595] the Court laid down the parameters of best evidence rule in the following terms: (SCC pp. 606-07, para 13) "13. Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07 NEUTRAL CITATION NO. 2025:MPHC-GWL:21558 7 SA No. 569/2002 'best evidence rule'. It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thayer's Preliminary Law on Evidence, p. 397 and p. 398; Phipson's Evidence, 7th Edn., p. 546; Wigmore's Evidence, p. 2406.) It has been best described by Wigmore stating that the rule is in no sense a rule of evidence but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process--the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of proving it is merely that dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all the rule of prohibition does not become a rule of evidence merely because it comes into play when the counsel offers to 'prove' it or 'give evidence' of it; otherwise, any rule of law whatever might be reduced to a rule of evidence. It would become the legitimate progeny of the law of evidence. For the purpose of specific varieties of jural effects-- sale, contract, etc. there are specific requirements varying according to the subject. On the contrary there are also certain fundamental elements common to all and capable of being generalised. Every jural act may have the following four elements:
(a) the enaction or creation of the act;Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07
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(b) its integration or embodiment in a single memorial when desired;
(c) its solemnisation or fulfilment of the prescribed forms, if any; and
(d) the interpretation or application of the act to the external objects affected by it."
26. Section 58(c) of the Transfer of Property Act, 1882 defines mortgage by conditional sale in the following terms:
"58. (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."
27. A bare perusal of the said provision clearly shows that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of retransfer may be evidenced by more than one document. A sale with a condition of retransfer, is not mortgage. It is not a partial transfer. By reason of such a transfer all rights have been transferred reserving only a personal right to the purchaser (sic seller), and such a personal right would be lost, unless the same is exercised within the stipulated time.
28. In Pandit Chunchun Jha v. Sk. Ebadat Ali [(1955) 1 SCR 174 : AIR 1954 SC 345] this Court clearly held: (SCR p.
177) Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07 NEUTRAL CITATION NO. 2025:MPHC-GWL:21558 9 SA No. 569/2002 "We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another.
Each must be decided on its own facts."
29. Yet again in Mushir Mohd. Khan v. Sajeda Bano [(2000) 3 SCC 536] this Court upon construing Section 58(c) of the Transfer of Property Act opined: (SCC pp. 541-42, para 9) "9. The proviso to this clause was added by Act 20 of 1929 so as to set at rest the conflict of decisions on the question whether the conditions, specially the condition relating to reconveyance contained in a separate document could be taken into consideration in finding out whether a mortgage was intended to be created by the principal deed. The legislature enacted that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale."
30. Referring to Chunchun Jha [(1955) 1 SCR 174 : AIR 1954 SC 345] it was held: (SCC p. 544, para 14) "14. Applying the principles laid down above, the two documents read together would not constitute a 'mortgage' as the condition of repurchase is not contained in the same documents by which the property was sold. The proviso to clause (c) of Section 58 would operate in the instant case also and the transaction between the parties cannot be held to be a 'mortgage by conditional sale'."
31. In Umabai v. Nilkanth Dhondiba Chavan [(2005) 6 SCC 243] wherein one of us was a party, this Court held: (SCC p. 254, para 21) "21. There exists a distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07 NEUTRAL CITATION NO. 2025:MPHC-GWL:21558 10 SA No. 569/2002 a right to redeem remains with the debtor; but a sale with a condition of repurchase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon. Proviso appended to Section 58(c), however, states that if the condition for retransfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. (See Pandit Chunchun Jha v. Sk.
Ebadat Ali [(1955) 1 SCR 174 : AIR 1954 SC 345] , Bhaskar Waman Joshi v. Narayan Rambilas Agarwal [(1960) 2 SCR 117 : AIR 1960 SC 301] , K. Simrathmull v. S. Nanjalingiah Gowder [1962 Supp (3) SCR 476 : AIR 1963 SC 1182] , Mushir Mohd. Khan [(2000) 3 SCC 536] and Tamboli Ramanlal Motilal [Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal, 1993 Supp (1) SCC 295] .)"
32. The High Court relied upon Indira Kaur v. Sheo Lal Kapoor [(1988) 2 SCC 488 : AIR 1988 SC 1074] . Therein the Court took into consideration the factors adumbrated therein, particularly, a long stipulated period of 10 years for conveying the property and the vendee was prohibited from selling and parting with his right, title and interest for 10 years. The vendor was allowed to occupy the property as a tenant on payment of Rs 80 per month. No order of mutation was passed in his favour. It was held:
"6. ... In the present case having regard to the facts and circumstances highlighted in the course of the discussion pertaining to the question as to whether or not the transaction was a transaction of mortgage having regard to the real intention of the parties it would be difficult to hold that the agreement to sell executed by the defendant in favour of the plaintiff was by way of a Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07 NEUTRAL CITATION NO. 2025:MPHC-GWL:21558 11 SA No. 569/2002 'concession'. It was a transaction entered into by the defendant who was a hard-headed businessman and the documents in question have been carefully framed in legal terminology taking into account the relevant provisions of law. The transaction also discloses the awareness of the defendant about Section 58(c) of the Transfer of Property Act as is evident from the fact that the reconveyance clause is not embodied in the sale deed itself. In the agreement to sell, no reference has been made to the transaction of sale though it has been executed contemporaneously. The defendant who has permitted the plaintiff to continue in possession on payment of rent equivalent to about 13½ per cent interest and was evidently aware of all the dimensions of the matter would not have granted any concession or executed the agreement by way of a concession. The agreement was executed evidently because the plaintiff would not have executed the sale deed unless an agreement to sell by a contemporaneous document was also executed to enable the plaintiff to enforce specific performance within ten years. It was therefore a transaction entered into with open eyes by the defendant and there was no question of granting any concession."
33. In the instant case, as noticed hereinbefore, the transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property. Not only that, the appellant was put in possession of the land, his name was also mutated."
Even otherwise, in absence of clear pleadings regarding the nature of mortgage, it should not have been held that sale deed dated 24-11-1972 (Exhibit P10) was not a sale deed.
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15. Furthermore, the trial court has held that since plaintiff had not filed the original copy of sale deed executed by Motiram and others in favour of Mathura Prasad (Exhibit P10), therefore, the same could not be relied upon and mere marking of the said document as Exhibit P10 would not make the document admissible.
16. Considered the aforesaid reasoning assigned by the courts below.
17. At the time of recording of evidence of Parvati Bai (PW1), no objection was raised by defendants with regard to marking of the sale deed dated 24-11-1972 as Exhibit P10 and its map as Exhibit P11. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered in evidence and not subsequently. The objection as to the admissibility of evidence can be classified in two parts, i.e., objection that the document itself is not admissible; and objection with regard to the mode of proof of the said document. In case if the document itself is not admissible, then whether objection was raised or not, still the party can assail the same at a later stage. But where the objection is with regard to the mode of proof of a document, then the objection should be taken at the time when it is tendered in evidence, and once the document has been admitted in evidence and marked Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07 NEUTRAL CITATION NO. 2025:MPHC-GWL:21558 13 SA No. 569/2002 as an exhibit without any objection, then the objection cannot be allowed to be raised at any stage subsequent to the marking of document as an exhibit.
18. In the present case, defendants did not take any objection when the photocopy of sale deed dated 24-11-1972 was marked as Exhibit P10, and its map as Exhibit P11. The mode of proof of document has to be challenged at the time when the document is tendered in evidence. The simple reason behind that analogy is that if the objection is raised, then plaintiff or the concerned party shall have a choice and opportunity to tender the original document, but after having permitted the party to exhibit the photocopy, it can be said that the opposite party has waived its right to object to the mode of proof of the document because the concerning party cannot be taken by surprise at a later stage, thereby depriving it from relying upon the document which was allowed to be exhibited without any objection. The Supreme Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, reported in (2003) 8 SCC 752, has held as under:
"18. The abovesaid facts have been stated by us in somewhat such detail as would have been otherwise unnecessary, only for the purpose of demonstrating that the objection raised by the defendant-appellant before the High Court related not to Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07 NEUTRAL CITATION NO. 2025:MPHC-GWL:21558 14 SA No. 569/2002 the admissibility of the documentary evidence but to the mode and method of proof thereof."
Furthermore, in the present case, defendants themselves have admitted that a sale deed was executed in favour of Mathura Prasad (Exhibits P10 and P11).
19. Under these circumstances, the courts below should not have discarded the sale deed Exhibit P10, and its map Exhibit P11, which was executed by Motiram, Gopal, Lalla Singh, Shaligram, and Chotelal in favour of Mathura Prasad on 24-11-1972.
20. Under these circumstances, this court is of considered opinion that by virtue of the sale deed dated 24-11-1972, Exhibit P10 and its map Exhibit P11), the property in dispute was sold by Motiram, Gopal, Lalla Singh, Shaligram, and Chotelal to Mathura Prasad.
21. Merely because a tenancy note was also executed on 24-11-1972 would not make the sale deed a mortgage deed. The execution of the rent note clearly establishes that the possession was handed over to Mathura Prasad, and from the date of execution of the sale deed i.e., 24-11-1972, the possession of Motiram, Gopal, Lalla Singh, Shaligram, and Chotelal became that of tenants. Change of nature of possession would certainly mean that the Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07 NEUTRAL CITATION NO. 2025:MPHC-GWL:21558 15 SA No. 569/2002 possession of the property was given to Mathura Prasad and the vendors were allowed to retain possession in the capacity of tenants.
22. Under these circumstances, this court is of considered opinion that the courts below committed a material illegality by holding that plaintiff has failed to prove landlord-tenant relationship. Thus, it is held that the property in dispute was sold by Motiram, Gopal, Lalla Singh, Shaligram, and Chotelal to Mathura Prasad by registered sale deed dated 24-11-1972, Exhibit P10 and its map Exhibit P11, and from thereafter, by virtue of the rent note (Exhibit P12), vendors remained in possession in the capacity of tenants of Mathura Prasad. Subsequently, Mathura Prasad sold the property to plaintiff by a registered sale deed dated 23-11-1993 (Exhibit P14), and accordingly, plaintiff became the owner of the property in dispute, and defendants became the tenants of plaintiff on account of attornment.
23. Accordingly, the first substantial question of law framed by this Court is answered in favour of appellant.
24. So far as the second substantial question of law is concerned, it is categorically claimed by plaintiff that she is in bona fide need of the property in dispute for residential purposes. It is not the case of defendants that the Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07 NEUTRAL CITATION NO. 2025:MPHC-GWL:21558 16 SA No. 569/2002 plaintiff is in possession of alternative and suitable accommodation which may cater her needs. It is also not the case of defendants that they have ever paid rent to the plaintiff. On the contrary, it was their case was that they are in possession of the property in dispute in the capacity of owners, and therefore, there was no question of payment of rent.
25. Accordingly, the second substantial question of law is also answered in the affirmative, and it is held that plaintiff has successfully proved that she requires the suit property for bona fide for residential purposes, and she has no alternative and suitable accommodation to cater her need, and since the defendants have failed to pay rent to plaintiff, and no extension of time was ever prayed and granted by the courts below, therefore, plaintiff is entitled for a decree of eviction under Sections 12(1)(a) and 12(1)(e) of the M.P. Accommodation Control Act.
26. Accordingly, the judgment and decree dated 02-08-2002, passed by IX Additional District Judge, Gwalior in Regular Civil Appeal No. 38A/2001, as well as judgment and decree dated 13-09-2001, passed by X Civil Judge, Class II, Gwalior in Civil Suit No. 23A/2000, are hereby set aside. Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07
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27. The suit filed by the plaintiff/appellant is hereby decreed, and it is held that defendants are the tenants of plaintiff, and plaintiff is entitled to a decree of eviction under Sections 12(1)(a) and 12(1)(e) of the M.P. Accommodation Control Act.
28. With the aforesaid observations, the appeal succeeds and is allowed.
29. Decree be drawn accordingly.
(G.S. Ahluwalia) Judge AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 12-09-2025 17:56:07