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Mahendra Mallik Vs. Brundaban Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 23 of 1979
Judge
Reported inAIR1984Ori62; 1984(I)OLR135
ActsEvidence Act, 1872 - Sections 92; Transfer of Property Act, 1882 - Sections 54 and 58
AppellantMahendra Mallik
RespondentBrundaban Das
Appellant AdvocateDeepak Misra, Adv.
Respondent AdvocateN.C. Panigrahi, Adv.
DispositionAppeal allowed
Cases ReferredGadadhar Mohanty v. Gangadhar Mohanty
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........for a direction to the defendant to re-transfer the property conveyed to him under the so-called sale deed after obtaining necessary permission from the sub-divisional officer.2. according to the plaint case, as he was in need of money to purchase certain homestead land from one malati debi, the plaintiff approached the defendant for a loan of rs. 1,500/- by mortgaging the property in question. defendant agreed to advance the loan, but insisted that plaintiff should execute a sale deed and further orally agreed that the document would be treated as a deed of mortgage for all practical purposes and he would re-transfer the property or receiving the loan amount plus interest at the rate of nine per cent per annum. with this understanding the plaintiff executed the deed on 19-1-1968, but.....
Judgment:

G.B. Patnaik, J.

1. Defendant is the appellant against a reversing, judgment. The suit was filed for a declaration that the document (Ext. A) executed on 19-1-1968 by the plaintiff though purported to be a sale deed conveying title was actually a deed of mortgage and for a direction to the defendant to re-transfer the property conveyed to him under the so-called sale deed after obtaining necessary permission from the Sub-Divisional Officer.

2. According to the plaint case, as he was in need of money to purchase certain homestead land from one Malati Debi, the plaintiff approached the defendant for a loan of Rs. 1,500/- by mortgaging the property in question. Defendant agreed to advance the loan, but insisted that plaintiff should execute a sale deed and further orally agreed that the document would be treated as a deed of mortgage for all practical purposes and he would re-transfer the property or receiving the loan amount plus interest at the rate of nine per cent per annum. With this understanding the plaintiff executed the deed on 19-1-1968, but did not deliver the possession of the land as it was intended to be a deed of mortgage. Plaintiff repaid Rs. 1,300/- to the defendant and approached the defendant for calculation of interest so that he could pay up the balance amount and get a deed of re-transfer from the defendant, but the defendant refused to re-transfer the suit property. Hence the present suit.

3. The defendant denied the allegations made in the plaint and contended that the document executed On 19-1-1968 was a sale out and out which the plaintiff had executed after receiving the consideration money thereof and it was never intended to be a deed, of mortgage as alleged in the plaint According to the further defence case, apart from the consideration money of Rs. 1,500/-under the sale deed in question, the plaintiff wanted another Rs. 1,000/- and executed a handnote for the said sum and took the amount. The sum of Rs. 800/- sent by the plaintiff to the defendant by post was towards re-payment of the aforesaid loan amount of Rs. 1,000/- and had got no connection with the consideration money under the impugned sale deed. He also averred that he was in possession of the land pursuant to the sale deed (Ext. A).

4. On these pleadings, the learned Munsif framed as many as three issues and on issue No. 1 found that the transfer of the suit land by the plaintiff to the defendant under Ext. A was not a mortgage but out and out a sale and the parties had never intended the alleged transaction as one of mortgage, on these findings the trial court dismissed the suit.

5. On appeal by the plaintiff, the leaned Subordinate Judge has reversed the aforesaid findings and held that the transaction in question was a mortgage and not a sale. He accordingly directed that the defendant should re-transfer the suit property in favour of the plaintiff on taking Rs. 678/- from the plaintiff within two months from the date of the judgment after obtaining necessary permission from the local Sub-Divisional Officer.

6. The finding of the lower appellate court that Ext. A is a mortgage will not stand a minute's scrutiny, inasmuch as a bare perusal of the said document would show that it was a sale out and out. Even it is not the plaintiffs case that it was a deed of mortgage but what the plaintiff alleged was that it was intended to be treated as a deed of mortgage for all purposes. It is, therefore, necessary to find out whether on the facts and circumstances and on the materials on record, it is possible to hold that it was intended between the parties that Ext. A would be treated as a mortgage.

7. Mr. Misra, the learned, counsel for the defendant-appellant, has contended that in view of Section 92 of the Evidence Act, it is not permissible for a court of law to take oral evidence to find out the intention of the parties, since the document is unambiguous. Mr. Panigrahi, learned counsel for the respondent, on the other hand, has contended on the basis of the authority of this court in the case of Gadadhar Mohanty v. Gangadhar Mohanty, (1972) 1 Cut WR 504 that Section 92 of the Evidence Act is not a bar to the admission of oral evidence to prove that the transaction was intended to be something other than what it purports to be. I will apply the dictum of the aforesaid case and take into consideration the oral evidence adduced to find out whether it is permissible to hold that the document was never intended to operate as a sale deed but was intended to be a deed of mortgage as alleged in the plaint.

8. D. Ws. 1 and 2 categorically proved the factum of loan of Rs. 1,000/-taken by the plaintiff from the defendant and for no justifiable reason, the lower appellate court has dubbed them as highly interested witnesses. That apart, the admission of P. W. 7 who is no other than the wife of the plaintiff to the effect that her husband sold some land and made some loan from the defendant to purchase the land from Malati, has been lightly brushed aside by the lower appellate court only on the ground that in her admission she never stated that her husband took a loan from the defendant by executing a handnote. In my opinion, the learned Subordinate Judge was wholly in error in not taking into consideration the aforesaid admission of P. W. 7. The said admission coupled with the evidence of D. Ws 1 and 2 will unequivocally support the defence case that apart the consideration money that passed under the sale deed (Ext. A), the plaintiff had taken a loan of Rs. 1,000/-from the defendant for the purpose of purchasing a piece of land from Malati and it was in re-payment of the said amount, a sum of Rs. 800/- had been sent by the plaintiff to the defendant by post. The learned Subordinate Judge has observed that if money was required by the plaintiff to be paid to Malati before the Sub-Registrar, there was no necessity of his taking a loan of Rs. 1,000/-from the defendant in the early morning. To my mind, such a reasoning is wholly uncalled for. Further, the conclusion of the learned Subordinate Judge that the plea of the defendant that he advanced the loan of Rs. l,000/- cannot be believed as the defendant has not stated to whom and when his father sold the lands and how much he gat as sale proceeds, is also based on thorough misappreciation of the evidence and no reasonable man can come to the aforesaid conclusion on the basis of the evidence relied upon by the learned Subordinate Judge, I would, therefore, set aside the finding of the learned Subordinate Judge regarding taking of loan of Rs, 1,000/- from the defendant by the plaintiff and hold that the defendant's case that plaintiff took Rs. 1,000/- on executing a handnote has been established.

One of the main grounds on which the learned Subordinate Judge held that Ext. A was intended to be a deed of mortgage thus falls through. The recitals of Ext. A leave no room for doubt that the vendor conveyed the title under the deed after receiving the consideration money thereof and became divested of all rights and interests on the property. P. W. 2 categorically stated that when the defendant did not agree to take the suit land on mortgage and, told that he would advance money only if a sale deed was executed, the plaintiff executed the deed. D. Ws. 1 and 2 both denied the suggestion that there was ever any intention of treating the deed (Ext. A) as the deed of mortgage and on clear understanding the plaintiff executed the sale deed (Ext. A) on receiving the consideration thereof. It also appears from the records that the land has been mutated in the name of the defendant. P. W. 5 in his evidence admitted that defendant cultivated the suit land. The finding of possession with respect to the suit land arrived at by the learned Subordinate Judge cannot be upheld in view of the admission of P. W. 5 and also the evidence of D. Ws. 1 and 2. The learned Subordinate Judge also has taken another factor into consideration which in my view would not be very relevant and that is the valuation of Rs. 65/- per gunth under the sale deed. There is no material from which it can be held that the valuation of Rs. 65/- per gunth is grossly low. In the circumstances, without hesitation I would set aside the finding of the learned Subordinate Judge that the transaction in question was a mortgage and hold, that the transaction under Ext. A was a sale out and out and accordingly the plaintiff's suit must be dismissed.

9. In the result, the judgment and decree of the Subordinate Judge are set aside and those of the Munsif are affirmed. The second appeal is allowed, but in the circumstances, there will be no order for costs.


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