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2013 Supreme(Pat) 194
PATNA HIGH COURT
MUNGESHWAR SAHOO, J.
Rajwati Devi & Ors
Vs
Prem Nandani Sinha & Ors
First Appeal No. 884 of 1978
Decided on : 13.02.2013
For the Appellants: Mr. Yogendra Mishra, Mr. Durgesh Nandan, Mr. Ram Nath Saran, Miss. Manisha Prakash.
For the Respondents: Mr. Ray Shivaji Nath, Mr. Ray Saurabh Nath, Mr. Amrit Anunay
Headnote:
Transfer of Property Act, 1882 – Sections 58(C) and 67 – Redemption of mortgage – In mortgage by conditional sale a charge is created in property which impliedly creates relationship of mortgagor and mortgagee – In case of out and out sale a condition of re-conveyance is embodied – In present case, there is no condition of re-conveyance – For a transaction to constitute mortgage by conditional sale it is necessary that condition is embodied in document that purports to effect sale – If condition of repurchase is mentioned in same document then it is a mortgage by conditional sale – In clear terms it is mentioned that possession is delivered to defendant and he will take/receive income from suit property for two years – After two years only he will get the name mutated – If amount is repaid by plaintiff within two years endorsement shall be made on back of document – There is no condition that any re-conveyance deed will be executed by defendants – If it is out and out sale then a re-conveyance deed is required to be executed – There is no such condition – Defendant was put in possession as security of loan and he was getting income as interest of loan – Deed in question is a mortgage by conditional sale and not a deed of out and out sale – Finding of trial court confirmed – First appeal dismissed with cost of Rs.10,000/- payable by defendants-appellants to plaintiffs-respondents. (Paras 17, 19, 22, 33 and 34)
Interpretation of Document – Where terms and conditions have been reduced to writing document is required to be construed on the basis of contents thereof – Any pleading or evidence contrary to terms and conditions will never vary terms and conditions and will never change nature of deed – From document intentions of parties has to be gathered – Evidences have to be looked into only if terms and conditions are ambiguous – When character of a document is in question, although heading thereof would not be conclusive – It plays a second role – Intention of parties must be gathered from document itself but circumstances attending thereto would also be relevant, particularly when relationship between parties in question – For said purpose it is essential that all parts of deed should be read in their entirety – While construing a document court shall not supply any words which author thereof did not use. (Paras 11 and 13)
Mungeshwar Sahoo, J.
1. The defendants have filed this first appeal against the judgment and decree dated 5th October 1978 passed by the learned 2nd Additional Subordinate Judge, Sitamarih in Title Suit No. 16 of 1976/ 79 of 1976 whereby the learned trial court decreed the plaintiffs’ suit for redemption.
2. The plaintiffs respondents filed the aforesaid suit for redemption of the mortgage dated 8.8.1973 executed by the plaintiff No.1 in favour of defendant No.3 with respect to the suit property comprised within ward No.13 holding No.90 measuring 1 kattha 10 dhur. According to the plaintiffs grandfather of the plaintiffs namely Ambika Prasad was the owner of the property. After the death of Ambika Prasad the father of the plaintiff No.1 namely Sitaram inherited the property and on his death the plaintiff No.1 inherited. In the revisional survey R.S. plot No.189 (ka) to 189(gha) measuring 46 decimal were carved out of C.S. plot No. 1952 which were recorded in the name of plaintiff No.1. The plaintiff No.1 was in need of money of Rs.8000/- and he requested the defendants for loan on the basis of simple mortgage with respect to suit property including the house measuring 1 kattha 10 dhur. The defendants insisted for executing mortgage by conditional sale and accordingly a mortgage deed by conditional sale was executed on 8.8.1973 for a period of 2 years. The defendants insisted that the half of the court fee and other expanses which will be spent by them including interest @ 1 rupee per month should also be added in the loan amount and, therefore, the amount mentioned in the mortgage by conditional sale was Rs.10,445/-. Bihar Relief Committee, Sitamarhi was tenant of the plaintiff in the suit house from before so it was settled that on expiry of two years the plaintiffs would repay Rs.10,445/- then the defendants will return the deed making necessary endorsement on the back. The plaintiffs tendered the amount to the defendants on 1.8.1975 and also on 7.8.1975 the defendant No.3 avoided and on 12.8.1975 the defendant No.3 said that two years of limitation has expired as such there is no question of refund of money arises because now it has became a sale. The relief committee vacated the suit premises on 30.4.1975. The plaintiffs locked it but in the night of 12.8.1975 the defendants forcibly entered into the house. 144 Cr.P.C. proceeding was initiated between the parties. Thereafter, the plaintiffs deposited the amount as provided under Section 83 of the T.P. Act on 3.9.1975. According to the plaintiffs the deed was not a sale deed rather it was mortgage by conditional sale and the defendants never exercised power for foreclosure as provided under Section 67 of the T.P. Act.
3. The defendants filed the contesting written statement mainly contending that it was agreed between the parties that the form of the deed will be a Kebala Baimiyadi for a consideration of Rs. 10,445/- and accordingly, the sale deed was executed and the defendant No.3 was to be in possession of the same. The plaintiff was required to refund the said amount by 7.8.1975 and then the defendant would have re-conveyed the property and deliver vacant possession in favour of the plaintiffs. The plaintiff No.1 failed to refund the amount of Rs.10,445/- by 7.8.1975 as such he lost the right of re-conveyance. Entire consideration amount was paid to the plaintiffs and in fact the deed which is out and out sale was executed. The expenses incurred by the defendants i.e. stamp, registration fee and interest etc. were never included in the consideration amount. Since it was out and out sale there was no necessity to deposit the amount under Section 83 of the T.P. Act. The relief committee, was never in the suit premises nor the suit premises was ever vacated by relief committee rather defendant No.3 had been residing with his family in the suit house from 8.8.1973 i.e. the day of execution of the sale deed. He has spent Rs.4500/- in repairing the suit premises.
