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Nagindas Jekisondas Vs. Nanabhai Dullabhram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 720 of 1913
Judge
Reported inAIR1914Bom179(2); (1914)16BOMLR774
AppellantNagindas Jekisondas
RespondentNanabhai Dullabhram
Excerpt:
.....-..........third contemporaneous documents was one by which the vendee agreed that, if within three years the vendor at paid rs. 399 as principal, and paid from month to month the rent accruing due under the rent-note passed that day for rs. 27 as rent every year, he would re-sell the house to the vendor at his expense at any time within three years. then three was a clause that, if the rent was not paid for three consecutive months, the agreement for re-sale should not be binding upon the vendee. the fourth clause, not following the law of landlord and tenant as expressed in section 108 of the transfer of property act, provided that if within three years the house was destroyed by any calamity or vis major still the vendee, his heirs and representatives had the right to recover the principal.....
Judgment:

Basil Scott, Kt., C.J.

1. This was a suit for redemption by the plaintiff to recover a house. The question for decision by the lower Courts was whether the transaction with reference to which the plaint was instituted was a sale or a mortgage. On the 30th March 1900 three documents were executed. One of them purported to be a sale-deed. It recited that the house had been given in mortgage with possession to one Jagjiwandas Kaliandas in 1897, but the mortgagor had got possession of it as a tenant and continued to hold it as a tenant up to the 30th March 1900, and that a decree had been obtained by the mortgagee in 1900, and Rs. 175 was due. This amount had been paid by Ghelabhai Atmaram, the ostensible vendee, and the balance of Rs. 224 had been paid in cash making altogether Rs. 399, and consequently the house having been redeemed from the mortgagee was taken from the possession of the mortgagor and given into the possession of the ostensible vendee who was made the absolute owner.

2. Another document executed between the parties at the same time was one by which the ostensible vendor said that he had taken the house on hire from the vendee at Rs. 2-4-0 a month, or Rs. 27 a year, but the vendee might at any time demand possession of the house and it was then to be given up to him.

3. The third contemporaneous documents was one by which the vendee agreed that, if within three years the vendor at paid Rs. 399 as principal, and paid from month to month the rent accruing due under the rent-note passed that day for Rs. 27 as rent every year, he would re-sell the house to the vendor at his expense at any time within three years. Then three was a clause that, if the rent was not paid for three consecutive months, the agreement for re-sale should not be binding upon the vendee. The fourth clause, not following the law of landlord and tenant as expressed in Section 108 of the Transfer of Property Act, provided that if within three years the house was destroyed by any calamity or vis major still the vendee, his heirs and representatives had the right to recover the principal amount of Rs. 399, and the rent which might be due, from the person or the property of the vendor, or his legal representatives, or from the land of the house, or from whatever other source he pleased, a provision suggestive of one of the remedies of a mortgagee under Section 68 of the Transfer of Property Act. In the 6th clause there is again a reference to the principal sum of Rs. 399 and the rent which may be due.

4. Now the rent amounts to 6 3/4 per cent. upon Rs. 399, and we have no difficulty in arriving at the same tine conclusion as was arrived at by the Judges in the two lower Courts that these three documents read together amount to a mortgage of the house, that is to say, a transfer of the property with the right of redemption within a fixed period and an agreement to pay rent in lieu of reasonable interest. It does not appear to us that the facts in the cases which have been relied upon, such as Kapil Deo Singh v. Ram Rikha Singh I.L.R. (1910) All. 237 and Alderson v. White (1858) 2 De G. & J. 97, are so similar to the facts in this case that we ought to arrive at the same conclusion as was arrived at by the Courts in those cases. Agreeing as we do with the lower Courts we confirm the decree and dismiss the appeal with costs.


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