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Shyam Lal Vs. Shyam NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 482 of 1962
Judge
Reported inAIR1973All234
ActsEvidence Act - Sections 92; Transfer of Property Act - Sections 58
AppellantShyam Lal
RespondentShyam NaraIn and ors.
Appellant AdvocateS.C. Das, Adv.
Respondent AdvocateB.R. Gir, Adv.
DispositionAppeal allowed
Excerpt:
property - condition of repurchase - section 58 (c) of transfer of property act, 1882 - executants conveyed property absolutely to the purchaser - gave vendor only an option to recover property on payment of price - held, transaction was not a mortgage by conditional sale but an outright sale. - .....equity of redemption in half the shop in favour of ram lakhan. on 6-2-1960 ram lakhan obtained a sale deed from idris in respect of his share of equity of redemption. thereafter ram lakhan filed the suit, which has given rise to the present appeal, for redemption of the half share in the property in question. this suit was contested only by defendant no. 4, the appellant, on a variety of grounds. the trial court found that the document dated 20-6-1910 was a mortgage deed and the plaintiff had a right to redeem half of the property. it accordingly decreed the suit. against that decision shyam lal filed an appeal. 2. it appears that before the appellate court below only one point was pressed, namely, that the document dated 20-6-1910 was not properly construed inasmuch as it was an.....
Judgment:

T.S. Misra, J.

1. This is an appeal by defendant No. 4. It arises out of a suit for redemption of half share in the property in question on payment of Rs. 500/-. The material facts are as follows. The property in question was owned by two brothers Bhaggu and Buddhoo, on 20-6-1910 the sons of Bhaggu and Buddhoo executed a deed for Rs. 1,000/- in favour of Sukhdeo Prasad. Again, on 17-2-1916 the three sons of Bhaggu sold the property to Sukhdeo Pande and Sakatram defendant No. 1. Sukhdeo Pande is now dead and his sons are defendants Nos. 2 and 3. On 5-11-1959 Shyam Lal, the present appellant got the property in question by an exchange from defendants Nos. 1, 2 and 3. It appears that on 27-11-1959 Ashgar and Hafiz sons of Kallu, Ishaq son of Buddhoo and Abdul Karim son of Rahim Baksh sold their share of the equity of redemption in half the shop in favour of Ram Lakhan. On 6-2-1960 Ram Lakhan obtained a sale deed from Idris in respect of his share of equity of redemption. Thereafter Ram Lakhan filed the suit, which has given rise to the present appeal, for redemption of the half share in the property in question. This suit was contested only by defendant No. 4, the appellant, on a variety of grounds. The trial court found that the document dated 20-6-1910 was a mortgage deed and the plaintiff had a right to redeem half of the property. It accordingly decreed the suit. Against that decision Shyam Lal filed an appeal.

2. It appears that before the appellate court below only one point was pressed, namely, that the document dated 20-6-1910 was not properly construed inasmuch as it was an outright sale and not a mortgage by conditional sale. This contention did not find favour with the appellate court below and the appeal was dismissed. Aggrieved, Shyamlal has now come to this Court in second appeal.

3. Learned counsel appearing for the appellant submitted that the document dated 20-6-1910, Ext 1, was a sale deed and wasnot a deed of mortgage by a conditional sale.

4. In construing a document the fundamental rule is to ascertain the intention from the words used therein. 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 by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Evidence of contemporaneous conduct is always admissible as a surrounding circumstance; but evidence of subsequent conduct of the parties is inadmissible. (See Bhaskar Waman v. Shrinarayan Rambilas, AIR 1960 SC 301). The plaintiff had contended that the transaction in question was a mortgage by conditional sale whereas the appellant had contended that it was an outright sale subject to a condition of reconveyance of the property in favour of the vendors. Such a question is undoubtedly a vexed one and has got to be decided on its own facts. In the instant case, it was stipulated in the document, Ex. A-1, that the property in question was sold for a sum of Rs. 1,000/-and possession thereof was delivered to the purchaser on the condition that if within a period of 10 years commencing from the date of the execution of the document the principal amount was paid to the purchaser by the vendors the possession of the said property would be restored to the vendors otherwise the document would be a sale deed. It was urged that by the terms contained in the document no relationship of the debtor and the creditor was created and that the property in question was not given by way of security for any debt and as such the transaction was not a mortgage by conditional sale but was an outright sale. In the case of Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345, the Supreme Court laid down that prima facie an absolute conveyance, containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase. In every such case the question is, what upon a fair construction, is the meaning of the instruments. The document Ext. A-1 obviously does not create any relationship of debtor and creditor. There is also no stipulation of payment of any interest nor is there any provision to the effect that the property in question was being given by way of security for any loan. By that document, the executants thereof conveyed the said property absolutely to the purchaser. The document nowhere imposes any obligation on the part of the vendors to recover the property on payment of the price but gives them only an option to do so. It was argued on behalf of the respondentsthat the vendors had reserved to themselves the right to purchase the property and no right in that respect was given to the purchaser to enforce that obligation. This argument in fact supports the appellant. As indicated above the stipulation in the document merely gave an option to the vendors to purchase the property but it did not impose any obligation on the vendors to recover the property on payment of the principal sum of Rs. 1,000/-. The parties did not lead any oral evidence to prove the intention of the parties to that document. There is also no evidence on record pertaining to the contemporaneous conduct of the parties. The court below however placed reliance on the subsequent conduct of the parties, namely, the execution of the other two documents of 27-11-1959 and 6-2-1960 in coming to the conclusion that the transaction of 20-6-1910 was a mortgage by conditional sale. This evidence Was however, inadmissible and could not be looked into. (See AIR 1960 SC 301).

5. The court below also placed reliance on the fact that a substantial property had been conveyed by the document of 20-6-1910 for a paltry sum of Rs. 1,000/-. It was observed by the appellate court below that for such a small price such a substantial property could not be intended to be sold. This observation of the court below is not based on any evidence on record. The parties did not lead any evidence to prove the actual value of the property in question on 20-6-1910. The finding of the court below in that behalf is obviously based on conjectures and surmises. The courts below were, therefore, not correct in holding that the transaction evidenced by Ext. 1 was a mortgage and that the plaintiff had the right to redeem the share of property of which he allegedly owned the equity of redemption.

6. In the result the appeal is allowed, the decree passed by the court below is set aside and the suit is dismissed. The appellant is entitled to his costs here and in the courts below.


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