2000 Supreme(SC) 1309

2000(5) Supreme 538
SUPREME COURT OF INDIA
(From Kerala High Court)
V.N. Khare & S.N. Variava, JJ.
Santakumari & Ors. -Appellants
versus
Lakshmi Amma Janaki Amma (D) by LRs. & Ors. -Respondents
Civil Appeal No. 1365 of 1990
Decided on 10-8-2000
Counsel for the Parties :
For the Appellants : T.L.V. Iyer, Sr. Advocate, Ms. Malini Poduval, Advocate.
For the Respondents : Sanjay Sen, S. Sukumaran and Ramesh Babu, Advocates.

IMPORTANT POINT
Construction of documents would be a substantial question of law.

Headnote:(i) Transfer of Property Act, 1882 -Section 58(c)-Mortgage by conditional sale-Property sold in execution of decree-Judgment debtor (K.N.) given option to pay decretal amount and expenditure and get back possession- K.N. selling property-Simultaneous, agreement that transferee would recall property to one K after 10 years but before expiry of 11 years for amount stated in agreement- K later assigning his right under agreement to K.N. -Sale deed and agreement registered simultaneously one after another on same day-Transaction in nature of mortgage by conditional sale- K.N. entitled to decree for redemption.

       Held : The facts leading to the execution of these documents, the manner in which these documents are executed are all very relevant. As stated above, the property had been sold in execution of a decree. Krishnan Nair was, however, given an opportunity to get back the property provided he deposited the decretal amount, interest and the commission. Krishnan Nair being heavily debted did not have the money. It is clear that he, therefore, devised a method of executing a Sale Deed in favour of Kesavan Channar, i.e. Ext. A-5 with a condition that the property be resold after 10 years. It is to be remembered that at that time the Transfer of Property Act did not operate in the State of Travancore and only the general principles of that Act, based on justice, equity and good conscience, were applicable. It is clear that even though the Sale Deed was executed Krishnan Nair had no intention to permanently dispose of the property. It is clear from the fact that simultaneously with the execution of Ext. A-5 the purchaser, i.e. Kesavan Channar, executed a second Agreement Ext. A-6. Unless there was no intention to re-convey there would be no question of a purchaser simultaneously executing the Agreement to Sell the property after 10 years. The two documents were executed immediately one after the other and were also registered simultaneously one after the other. There would not be two such documents executed simultaneously unless the intention was that the property was to be reconveyed to the vendor i.e. Krishnan Nair. It is significant that the proposed purchaser, in Ext. A-6, was a close relative of Krishnan Nair. It is also relevant that Kochu Kunja Nair at the time of execution of Ext. A-6 was already 72 years of age. This makes it clear that Ext. A-6 was for and on behalf of Krishnan Nair. This Deed of assignment in favour of the predecessor in title of the Appellant, i.e. Ext. A-7, by Kochu Kunja Nair shows that Ext. A-6 had been executed at the instance of the predecessor of the Appellant. This further indicates that the predecessor of the Appellant was aware of the fact that the property was being sold to Kesavan Channar under Ext. A-5 with a condition that the same would be sold back after a period of 10 years to Kochu Kunja Nair who was acting on behalf of Krishnan Nair. The predecessor of the Appellant was aware that the property had been taken on behalf of Krishnan Nair and he himself took the property on behalf of Krishnan Nair probably due to the old age of Kochu Kunja Nair. In our view, it cannot be said that the findings of the trial Court and the second Appellate Court that the documents Exts. A-5, A-6 and A-7 are not what they purport to be and that they had been executed with the intention that the property would be re-conveyed to Krishnan Nair is perverse and/or illogical. In our view it cannot be said that such an interpretation, of these documents, could never have been arrived at. The second Appellate Court was confirming the findings of the trial Court. Therefore it cannot be said that the second Appellate Court has reversed concurrent findings of fact. The second Appellate Court by stating that this is a mortgage by conditional sale has merely put a form to the transaction. Taken as a whole the transaction appears to be a mortgage by conditional sale. The second Appellate Court is not making out any new case but is merely interpreting the documents and putting a form to the nature of the transactions. (Para 12)

       (ii) Code of Civil Procedure, 1908 -Section 100-Second appeal-Substantial question of law-Construction of documents would be a substantial question of law-Property of respondent s predecessor, (K.N.) sold in execution of decree-Court giving option to judgment debtor (K.N.) to pay decretal amount to get back property-K.N. selling property-Simultaneous agreement with transferee to resell property to one K after 10 years but before expiry of 11 years- K later assigning right under agreement to K.N. -Suit by successor in interest of K.N. for specific performance-Trial Court holding resale agreement in favour of K and assignment deed by K benami transactions entered into on behalf of K.N. -Finding that transferee was mere trustee of K.N. -Suit decreed but possession not given in absence of prayer for rendition of accounts-First appellate Court holding transactions not benami and dismissing suit-High Court holding transaction that in nature of mortgage by conditional sale and passing preliminary decree for redemption-Interpretation of High Court correct-High Court was confirming finding of trial Court-It could not be said that second appellate Court had reversed concurrent findings of fact-High Court was not making out any new case-By stating that it was a mortgage by conditional sale High Court merely put a form to transaction-No fault could be found with judgment of High Court. (Paras 10, 11 and 12)