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Miya Dariavkhan Bathubhai Vs. Oza Shankarlal Shambhudas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR354
AppellantMiya Dariavkhan Bathubhai
RespondentOza Shankarlal Shambhudas and ors.
Cases ReferredBhaskar Waman Joshi (deceased) and Ors. v. Shrinarayan Rambilas Agarwal (deceased) and Ors.
Excerpt:
.....one of mortgage and not an out and out sale and consequently an endorsement was made below the sale deed exh. 29 as well as the endorsement made by the original defendant on the sale deed exh. 6. the dis-satisfied defendant carried the matter in appeal to the district court at mehsana. 36 was, in substance, a mortgage transaction as clearly rurns out from the record in the light of the latter document exh. shaikh to get this document considered as a mortgage is de hors the clear rectitals contained therein and is bound to fail for two obvious reasons. 36 is clearly an out and out sale deed and its recitals are binding on both the parties and the plaintiff who claims through the executant of the sale deed exh. it has now been well settled that if a document on the face of it, is a..........one of mortgage and not an out and out sale and consequently an endorsement was made below the sale deed exh. 36 by the mortgagee to the effect that the document will have to be treated as mortgage by conditional sale and a separate registered document exh. 28 was executed by the plaintiff favour of the defendant pertaining to the same agricultural land by which the plaintiff entered into a transaction of mortgage by conditional sale for an amount of rs. 2,000/-. according to the plaintiff, the consideration of rs. 2,000/- took care of the earlier amount of rs. 1,000/- which was covered by the document exh. 36 and the additional rs. 1,000/- were paid in case by the mortgagee to the plaintiff and thereafter, the mortgagee in possession remained in possession of the suit land pursuant.....
Judgment:

S.B. Majmudar, J.

1. The original plaintiff whose suit for redemption of alleged mortgage of an agricultural land came to be dismissed in appeal by the learned Assistant Judge, Mehsana, has approached this Court by way of the present second appeal.

2. A few facts leading to this proceeding may be stated at this juncture.

3. The plaintiff-appellant alleges that by way of a mortgage by conditional sale the agricultural land bearing No. 1060 admeasuring 2 acres and 28 Gunthas situated on the outskirts of village Chhatiarda in Mehsana Taluka of Mehsana District, was continued in possession of the respondent who were the original mortgagees in possession thereof. According to the plaintiff, originally the suit land was mortgaged with possession on 8th May, 1947 by a registered document Exh. 19 for Rs. 500/- with original mortgagee who was on Shambhubhai Parsottam. The property belonged to Bai Ma Bibi widow of Bakarkhan Bismillakhan whose heir is the present appellant. After the execution of the aforesaid mortgage with possession, the suit property was allegedly sold by the plaintiff by a registered document Exh 36 on 4th August, 1951 for a total amount of Rs. 1,000/- whereby the mortgagee in possession was allegedly made owner thereof. The plaintiff's contention is that even though the document Exh. 36 purports to be one of an out and out sale, in substance it was one of mortgage in favour of the existing mortgagee in possession. The plaintiff's further case is that in 1964, precisely 17th March, 1964 the parties recognized that the original transaction of 4th August, 1951 was really one of mortgage and not an out and out sale and consequently an endorsement was made below the sale deed Exh. 36 by the mortgagee to the effect that the document will have to be treated as mortgage by conditional sale and a separate registered document exh. 28 was executed by the plaintiff favour of the defendant pertaining to the same agricultural land by which the plaintiff entered into a transaction of mortgage by conditional sale for an amount of Rs. 2,000/-. According to the plaintiff, the consideration of Rs. 2,000/- took care of the earlier amount of Rs. 1,000/- which was covered by the document Exh. 36 and the additional Rs. 1,000/- were paid in case by the mortgagee to the plaintiff and thereafter, the mortgagee in possession remained in possession of the suit land pursuant to the document Exh. 29 which was a mortgage by conditional sale. Under the same document Exh. 29 the plaintiff was permitted to redeem the mortgage after six years of the date of the execution of the document by repaying Rs. 2,000/- to the mortgagee. The plaintiff's contention is that inspite of the expiry of the requisite period of non-redemption, and inspite of repeated requests of the plaintiff to the defendants to reconvey the property after the redemption of mortgage, the defendants were in no mood to comply with the said request and hence he filed Regular Civil No. 190 of 1970 in the Court of the learned Civil Judge, Senior Division, Mehsana for redemption of the suit mortgage on the basis of the document Exh. 29 and in the alternative it was prayed by the plaintiff that if the Court came to the conclusion that the document in question evidences a transaction of sale with condition of repurchase the plaintiff was entitled to repurchase the property on payment of Rs. 2,000/- from the defendants. Thus a decree for redemption or in the alternative a decree for specific performance of the condition of the repurchase embodied in the document Exh. 29 was prayed for in the plaint by the plaintiff.

4. The respondents-defendants vehemently opposed the suit and contended that by an out and out sale evidenced by document Exh. 36 they had become the full owners of the suit property and there was no question of any subsequent mortgage being created by the plaintiff on the suit property by document Exh. 29. Their contention was that the document Exh. 29 was a got-up one, and that they had not paid the additional amount of Rs. 1,000/- to the plaintiff pursuant to the alleged document Exh. 29 as contended by the plaintiff.

5. The learned Trial Judge after recording the evidence of both the parties came to the conclusion that the original document Exh. 36 really effected a mortgage as seen by the subsequent conduct of the parties reflected by Exh. 29 as well as the endorsement made by the original defendant on the sale deed Exh. 36. The learned Trial Judge held that the said endorsement was admissible in evidence. It was further held by the learned Trial Judge that the deed Exh. 29 effected a mortgage by conditional sale and the plaintiff was entitled to a decree for redemption of the said mortgage. Hence the usual preliminary decree for redemption was passed by the learned Trial Judge, in favour of the plaintiff.

6. The dis-satisfied defendant carried the matter in appeal to the District Court at Mehsana. The said appeal was heard by the learned Assistant Judge, Mehsana who came to the conclusion that the document Exh. 36 which was an out and out sale deed had the effect of extinguishing the plaintiff's title to the suit land in 1951 and the plaintiff could not have executed a second mortgage document Exh. 29 regarding the suit land which no longer belonged to the plaintiff in 1964 and consequently the document Exh. 29 was incompetent. In the view of the matter the learned Appellate judge did not go into the further question as to whether the document Exh. 29 was a concocted one or not. So far as the endorsement below Exh. 36 was concerned, it was held to be inadmissible in evidence in view of Section 17 of the Indian Registration Act. On the aforesaid conclusion, the learned Appellate Judge was pleased to allow the appeal of the respondents and the suit of the plaintiff-appellant was ordered to be dismissed. This has brought the dissatisfied the plaintiff to this Court by way of the present second appeal:

7. Mr. G.R. Shaikh, the learned Advocate for the plaintiff appellant raised the following submissions in support of the plaintiffs' appeal:

(1) The document Exh. 36 was, in substance, a mortgage transaction as clearly rurns out from the record in the light of the latter document Exh. 29 and the endorsement made by the mortgagee himself below Exh. 36;

(2) As a logical corollary to his aforesaid submission it was further contended by Mr. Shaikh that the document Exh. 29 could be legally effected by the plaintiff in favour of the defendant as the plaintiff had retained the equity of redemption in the suit land and as the document Exh. 29 was in substance a document evidencing the transaction of a mortgage by conditional sale the plaintiff was entitled to a decree for redemption.

(3) Mr. Shaikh further submitted that in any case the learned Appellate Judge was in error in holding that the endorsement below Exh. 36 required registration.

8. Before 1 proceed to consider the aforesaid submissions of Mr. Shaikh it is necessary so glance through certain admitted facts on the record of this case.

The suit land originally belonged to Baima-Bibi, widow of Bakarkhan. She was the maternal grand-mother of the present plaintiff. She had executed a usufructary mortgage in favour of the predecessor-in-title of the present respondents, Kumbhar Shambhubhai Parsottam in the year 1947. The transaction is evidenced by Exh. 49. The father of the present plaintiff had executed the said document on behalf of Baima Bibi. Pursuant to the said document, it appears, that the defendant's predecessor-in-title Shambhubhai Parsottam was put in possession of the suit field. Thereafter it appears that Bai Ma Bibi was in need of more amount and hence document Exh. 36 was executed on her behalf by her manager Nathubhai Dariakhan on 4th August, 1951. Exhibit 36 dated 4th August, 1951 is a registered document. It is evidencing a transaction of out and out sale of the suit land in favour of the mortgagee in possession Kumbhar Shambhubhai who was the ancestor of the defendants. This document recites that vender was paid Rs. 500/- more at the time of execution of the document; while the other amount of Rs. 500/- was retained towards the dues of the vendee. The suit land was sold absolutely to the vendee Kumbhar Shambhubhai Parsottam and that from that day onwards, the vendee was to remain in possession of the suit land as full owner thereof. This registered document evidencing an absolute sale transaction is sought to be construed as a mortgage transaction by the plaintiff. The plaintiff relies upon the subsequent registered document dated 17th March, 1964 which, an alleged conditional sale deed, is said to have been executed by the heir of deceased Baima Bibi in favour of the present respondents who were the heirs of the original mortgagee Shambhudas.

9. Mr. Shaikh's first submission is that the document Exh. 36 though purporting to be an out and out sale is really one of mortgage as evidenced by the subsequent conduct between the parties as reflected by the latter document Exh. 29. Now it is apparent that the document Exh. 36 which is a registered document effects an absolute sale of the suit land in favour of the then sitting mortgagee in possession Shambhudas. The attempt of Mr. Shaikh to get this document considered as a mortgage is de hors the clear rectitals contained therein and is bound to fail for two obvious reasons. Under Section (58)(c) of the Transfer of Property Act, no document which purports to transfer a property in favour of another as an absolute sale along with a condition of re-purchase can be considered as a mortgage by conditional sale unless the condition of repurchase is embodied in the deed itself. Proviso to Section 58(c) will not permit Mr. Shaikh to urge that document Exh. 36 should be construed as mortgage by conditional sale as the condition of repurchase is not embodied in the document itself. In fact, to be more precise Mr. Shaikh's contention is not that the document Exh. 36 purported to effect a mortgage by conditional sale but his condition is that even apart from the clear recitals of the document Exh. 36 as a sale deed the parties really understood it to be a mortgage and the plaintiff's effort is to show that whatever may be the recitals in the sale deed Exh. 36 they were not meant to be acted upon and the parties understood that they were effecting in substance a mortgage transaction. Even this contention cannot be open to Mr. Shah for the simple reason that under Section 92 of the Indian Evidence Act such inquiry would be completely barred. The present case does not fall within any of the exceptions to Section 92. Exh. 36 is clearly an out and out sale deed and its recitals are binding on both the parties and the plaintiff who claims through the executant of the sale deed Exh. 36 as her heir, cannot turn round and contend that inspite of the clear cut recitals as an out and out sale in Exh. 36 it should be construed as a mortgage deed. The subsequent conduct of the parties is totally irrelevant in such an inquiry. It has now been well settled that if a document on the face of it, is a regular sale deed, it cannot be construed as a mortgage deed in view of the clear provisions of Section 92 of the Indian Evidence Act. In the case of Sait Bolumal Dharmdas Fir, Bankers, represented by Partner Bolumal Dharmdas Vijayawas v. Gollapudi Venkatachelapathi Rao and Anr, reported in : AIR1959AP612 , a Division Bench of that Court on review of various judgments on the point and placing reliance on a Division Bench Judgment of the Bombay High Court has held that any attempt to let in extrinsic evidence to prove the intention of the parties for construing an instrument will violate Section 92, Evidence Act, which can be read only subject to the exceptions contained in several of its provisos. That being so, it is not competent for a court to look into the evidence of surrounding circumstances to find out whether document which purported to be an out and out sale, was intended to a document which purported to be an out and out sale, was intended to take effect only as a security bond. It has been further observed in the aforesaid decision that proviso 6 to Section 92 of the Evidence Act can be called in aid only in cases where the terms of a document are ambiguous. When a document creates a doubt as to the meaning and the intention of parties, oral evidence bearing on the surrounding circumstances can be looked into but extrinsic evidence is inadmissible to alter the legal character of an instrument. In the aforesaid decision the Division Bench of the Andhra Pradesh High Court placed reliance on the Division Bench decision of the Bombay High Court in the case of Martand Trimbak v. Amritrao Raghojirao reported in A.I.R. 1925 Bom. 501 where a question had arisen before the Bombay High Court as to whether evidence of circumstances surrounding an instrument, which was expressed to be a sale deed could be let in to show that it was in fact intended not to operate and take effect as a sale. The Division Bench of the Bombay High Court consisting of Macleod C.J. and Coyajee J. answered the said question in the negative. While doing so, Macleod C.J. observes as under:

It is true that evidence of the circumstances surrounding a document is admissible; but it is admissible only for the purpose of throwing light on its meaning. It would, we think, not be permissible to consider the surrounding circumstances with a view to holding that a document which on the fact of it is a sale deed was intended to operate as a mortgage. There must be some limit to the suggestions that the surrounding circumstances can always be scrutinised so as to enable the Court to alter or change the nature of a document to something different from that it appears to be. Otherwise there could be no certainty as to the proper construction to be placed on a document which to all appearance is unambiguous.

The same view has been taken by a Division Bench of the Sind Court in the case of Milkimal Ramrakhiomal v. Totomal Harchandmal and Ors., reported in A.I.R. 1939 Sind 200. It has been observed in the aforesaid decision that where a document executed by an agriculturist is on the face of it a sale deed but is alleged to be only an ostensible deed of sale being in reality a mortgage, and in a suit by the executant for redemption of the mortgage he pleads a contemporaneous oral agreement to reconvey, but it is proved that the executant is not an agriculturist, the beneficent provisions of Section 10, Decan Agriculturists Relief Act, cannot be taken advantage of, so that even assuming the case of the executant to be true, so far as a party to the transaction is concerned, he cannot bring either direct or circumstantial evidence to show that the document was intended to operate as a mortgage and not as a sale deed. While arriving at the aforesaid decision reliance was placed by the Court on various Bombay and Privy Council Judgments. Supreme Court in the case of Bhaskar Waman Joshi (deceased) and Ors. v. Shrinarayan Rambilas Agarwal (deceased) and Ors. reported in : [1960]2SCR117 observed while considering the scope of Section 92 of the Indian Evidence Act in the light of Section 58(c) of the Transfer of Property Act as under: '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 content, 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. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given. Evidence of contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible.'

10. In view of the aforesaid settled legal position, it is clear that the plaintiff cannot be permitted to urge that the clear cut recitals of Exh. 36 which, on the fact of it is a sale deed should be constructed as effecting, in reality, a mortgage transaction. Obviously, Section 58(c) of the Transfer of Property Act as well as Section 92 of the Evidence Act will come in the way of the plaintiff.

11. Realising these difficulties Mr. Shaikh submitted that in any case the provisions of Section 115 of the Evidence Act would over-ride Section 92 of the Indian Evidence Act. Even this submission of Mr. Shaikh will be of on avail to him for the simple reason that before Section 115 can be pressed in service it must be established that because of the representation held out by the defendants to the plaintiff the plaintiff had changed his position to his detriment. Apart from there being no such pleading or proof on this aspect it is obvious that it is not the case of the plaintiff that the defendants' alleged representation that the transaction between them was really a mortgage transaction had resulted in any detriment to the plaintiff. On the contrary, according to the plaintiff, as the defendants represented the transaction to be a mortgage transaction, they paid additional amount of Rs. 1,000/- to the plaintiff by Exh. 29. Consequently it cannot be said that there was any representation held out by the defendants to the plaintiff which had resulted in any adverse effect on the plaintiff. This plea of estoppel cannot be of any avail to the plaintiff. In that view of the matter the first submission of Mr. Shaikh is devoid of any merit and has got to fail.

12. That takes me to the second submission of Mr. Shaikh. It was contended that Exh. 29 effected a mortgage by conditional sale and the suit is based on Exh. 29 which is a registered document. Hence the present suit for redemption of mortgage evidenced by Exh. 29 apparently is a document of mortgage by conditional sale which can be either construed as a document effecting mortgage by conditional sale or as a document effecting sale with a condition of repurchase. Even this contention will be no avail to the plaintiff for the simple reason that it is found that the plaintiff's predecessor in title Bia Ma Bibi had lost ownership over the suit land by virtue of the registered sale deed Exh. 36 dt. 4-8-1951. From that day onwards the property had absolutely vested in the present defendant's predecessor-in-title. The plaintiff could not have, therefore, created a mortgage over somebody else's property in 1964 by virtue of document Exh. 29. Document Exh. 29 would be totally an incompetent document from which no right will flow in favour of the plaintiff for sustaining the present action and no decree can be passed in favour of the plaintiff on the basis of such an incompetent document. The learned Appellate Judge is perfectly justified in his finding that unless the title which was lost by Bai Ma Bibi in 1951 was revested in her prior to document Exh. 29, later document Exh. 29 would be of no real assistance to the plaintiff. It is nobody's case that the suit land which was conveyed absolutely to the defendants' predecessor-in-title in 1951 by registered sale did Exh. 36 was ever reconveyed to Bai Ma Bibi prior to 1964 or even thereafter. Under these circumstances the second submission of Mr. Shaikh for the appellant is devoid of any merit and is consequently rejected.

13. It has been found that the plaintiff is not entitled to maintain the present action against the defendants with respect to the property which did not vest either in the plaintiff or his predecessor-in-title from 1951 onwards and the suit land vested in the defendants' predecessor-in-title as an owner since 4th August, 1951. The plaintiff and his predecessor-in-title were total strangers to that property from 4-8-51 and the plaintiff could not claim ownership thereof from August, 1951 onwards. Consequently document Exh. 29 of 1964 was completely an unauthorised document and could afford no basis for filing the present suit against the defendants. This suit, consequently, was liable to fail and has been rightly dismissed by the learned Appellate Judge.

14. That takes me to the last submission of Mr. Shaikh. It was contended that the endorsement below Exh. 36 merely reflected an intention of the parties underlying the execution of the document Exh. 36 and wanted to clarify the stand of parties qua the said document and such an expression of the intention of the parties cannot and did not require any registration. It is difficult to accept the said submission of Mr. Shaikh. It is obvious that the document Exh. 36 which was a registered document clearly effected a sale transaction while the endorsement below the said document purported to contradict or vary the terms of the registered document and even by its recitals a right was sought to be created in favour of the plaintiff in the immovable property having the value of more than Rs. 100/-. Such an endorsement obviously, required registration. The last submission of Mr. Shaikh, therefore, has no substance and is rejected.

15. These were the only contentions raised by Mr. Shaikh in support of his appeal and as they were found to be devoid of any substance, the present second appeal is liable to fail and is accordingly dismissed. In the facts and circumstances of the case, there will be no order as to costs. Order accordingly.


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