Back
2010 (8) Supreme 466
SUPREME COURT OF INDIA
Markandey Katju and T.S. Thakur, JJ.
Raj Kishore (Dead) by Lrs. - Appellants
versus
Prem Singh & Ors. - Respondents
Civil Appeal No.7471 of 2003
Decided on : 10-12-2010
(b) Transfer of Property Act, 1882 – Section 58(c) – English Mortgage – Essential conditions to constitute English mortgage stated. (Para 16)
(c) Specific Relief Act 1963 – Section 16(c) – It is absolutely necessary for the plaintiff to assert that he/she was always ready and willing to perform the essential terms of the contract sought to be enforced against the defendant – This requirement is mandatory – Moreover time stipulated for re-conveyance is the essence of the contract. (Paras 18 and 19)
AIR 1954 SC 345; (1998) 2 SCC 226; (2008) 8 SCC 287; AIR 1950 FC 38; AIR 1969 SC 405 – Relied upon
AIR 1928 PC 208 – Distinguished
(d) Transfer of Property Act, 1882 – Section 58(c) – If the original vendor fails to act punctually according to the terms of the contract, the right to repurchase will be lost and cannot be specifically enforced – Refusal to enforce the terms for failure to abide by the conditions does not amount to enforcement of a penalty – Court has no power to afford relief against the forfeiture arising as a result of breach of such a condition. (Para 21)
AIR 1950 FC 38; (1830) 39 ER 195; AIR 1963 SC 1182 – Relied upon
(e) Transfer of Property Act, 1882 – Section 58(c) – Vendor’s right of re-conveyance against forfeiture may be saved if there had been incident of fraud, accident or surprise. (Para 22)
Facts of the case:
1. Late Shri Raj Kishore the predecessor-in-interest of the plaintiffs-appellants herein owned jointly with his brother defendant-respondent no.2 Shri Jugal Kishore agricultural land situate in different survey numbers of village Morasa, Tehsil Kurwai in the State of Madhya Pradesh.
2. In terms of a sale-deed executed and registered on 6th July, 1974 by Shri Raj Kishore an extent of 14 bighas and 15 biswas of the land aforementioned was transferred to the defendant-respondent no.1 for a sum of Rs.6,000/- only.
3. The plaintiff’s asserted that the transfer was only by way of security for the repayment of Rs.6,000/- which was taken only as a loan. According to the plaintiff return of the loan amount by the 6th July, 1981 would result in the land in question being transferred back to the plaintiff to which effect an agreement was also executed between the parties to the transaction on the 6th July, 1974 itself. The plaintiff alleged that the possession of the land in question continued with him and defendant no.2 as agreed. It was also agreed between the parties that defendant no.1 shall not get the disputed land mutated in their name till 6th July, 1981, the date by which the plaintiff could repay the amount of loan and secure the return of their land.
4. The plaintiff further alleged that contrary to the agreement between the parties defendant no.1 got a mutation regarding the land in question attested in his favour although he had no right to do so in view of the specific stipulation contained in the agreement between the parties forbidding any such mutation. The plaintiff asserted that they had approached defendant no.1 several times to receive back the sum of Rs.6,000/- borrowed from him and to get the land in question transferred back to them, but the said defendant had refused to do the needful. The plaintiff in that backdrop prayed for a decree for declaration to the effect that the sale-deed executed by him in favour of defendant no.1 was void and ineffective and that he continued to be in cultivating possession of the land as owner thereof.
5. The Trial Court eventually held that the sale-deed in question was not executed as security for any loan as alleged by the plaintiff nor was the execution of agreement dated 6th July, 1974 proved. The Trial Court further held that defendant no.1 had not forcibly occupied the land in question during the pendency of the suit as alleged by the plaintiff. The suit was dismissed.
6. Aggrieved by the dismissal of the suit the plaintiff appealed to the District Judge, Vidisha, M.P. which was dismissed.
7. On the merits the second appeal was allowed in part and defendant no.1 restrained from interfering with the possession of the plaintiff till such time he obtained a decree for partition from the revenue court concerned.
Finding of the Court:
The contention that the transaction between the parties was in reality one in the nature of a mortgage or that the suit was in substance one for redemption rejected.
Result : Appeal dismissed.
JUDGMENT
T.S. Thakur, J. —
1. This appeal by special appeal arises out of a judgment and order dated 25th February, 2003, passed by the High Court of Madhya Pradesh at Jabalpur, Gwalior Bench, whereby Second Appeal No.230 of 1995 filed by the appellants-plaintiffs was allowed but only in part and to the extent of granting a decree for injunction restraining the defendants-respondents from interfering with the possession of the appellants over the suit property till such time the said property is partitioned between them through the competent Revenue Court concerned. The facts necessary for disposal of this appeal may be briefly stated as under:
2. Late Shri Raj Kishore the predecessor-in-interest of the plaintiffs-appellants herein owned jointly with his brother defendant-respondent no.2 Shri Jugal Kishore agricultural land situate in different survey numbers of village Morasa, Tehsil Kurwai in the State of Madhya Pradesh. In terms of a sale-deed executed and registered on 6th July, 1974 by Shri Raj Kishore an extent of 14 bighas and 15 biswas of the land aforementioned from out of survey nos. 436, 439/1 and 441 was transferred to the defendant-respondent no.1 for a sum of Rs.6,000/- only. The plaintiff’s case is that the transfer was only by way of security for the repayment of Rs.6,000/- which according to the plaintiff was taken only as a loan. The plaintiff’s further case is that return of the loan amount by the 6th July, 1981 would result in the land in question being transferred back to the plaintiff to which effect an agreement was also executed between the parties to the transaction on the 6th July, 1974 itself. The plaintiff alleged that the possession of the land in question continued with him and defendant no.2 as agreed. It was also agreed between the parties that defendant no.1 shall not get the disputed land mutated in their name till 6th July, 1981, the date by which the plaintiff could repay the amount of loan and secure the return of their land.
3. The plaintiff further alleged that contrary to the agreement between the parties defendant no.1 got a mutation regarding the land in question attested in his favour although he had no right to do so in view of the specific stipulation contained in the agreement between the parties forbidding any such mutation. The plaintiff asserted that they had approached defendant no.1 several times to receive back the sum of Rs.6,000/- borrowed from him and to get the land in question transferred back to them, but the said defendant had refused to do the needful. The plaintiff in that backdrop prayed for a decree for declaration to the effect that the sale-deed executed by him in favour of defendant no.1 was void and ineffective and that he continued to be in cultivating possession of the land as owner thereof.
4. Defendant-respondent no.1 contested the suit by filing a written statement in which he denied the assertion that the sale-deed in question was executed by way of security for repayment of any loan. It was also alleged that the defendant was in possession of the land in question ever since the execution of the sale-deed and that a mutation based on the sale-deed had been attested in his favour. Defendant no.1 further alleged that he had made improvements over the land and that a suit for declaration simplicitor was not maintainable as the plaintiff was out of the possession of the land in question.
5. On the pleadings of the parties the Trial Court of Civil Judge First Class, Kurwai, District Vidisha, framed as many as eight issues for determination and recorded evidence adduced by the parties before it. The Trial Court eventually held that the sale-deed in question was not executed as security for any loan as alleged by the plaintiff nor was the execution of agreement dated 6th July, 1974 proved. The Trial Court further held that defendant no.1 had not forcibly occupied the land in question during the pendency of the suit as alleged by the plaintiff.
6. Aggrieved by t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
