IMPORTANT POINT
The court established that a transaction must clearly indicate its nature, and the absence of a reconveyance clause in a deed typically signifies an outright sale rather than a mortgage.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This second appeal has been preferred by the defendant/ appellant challenging the judgment and decree dated 31st March 1997 passed by the learned Additional District Judge, 8th Court, Alipore, in T.A. No. 379 of 1994. By the impugned judgment the court below set aside the judgment and decree passed by the Trial court on 31st August, 1994 in T.S No. 584 of 1984.

2. The main issue involved in this Second Appeal is whether the deed dated 25th June, 1974 is an out and out sale or it was a mortgage by conditional sale.

3. Plaintiff’s case in brief is that the plaintiff is an illiterate and rustic woman. After sudden demise of her husband, she faced acute poverty and was in need of money. Accordingly she proposed to take a loan of Rs. 500/-at the rate of 7.5% interest from the defendant no.1. The defendant no.1 also proposed to execute an ekrarnama. At first the defendant no.1 handed over half of the loan amount and the defendant no.1 assured her that the remaining portion of the loan shall be handed over to her after registration of document. The defendant no.1 instructed the plaintiff to come to registry office for the purpose of registration of document and accordingly plaintiff complied the same. In the registry office, the defendant no.1 obtained her L.T.I. (Left Thump Impression) on the document, contents of which was never read over or explained to her. The defendant assured her that said document contains a clause of re conveyance and accordingly asked her to come to his house in the month of Falgun 1391 BS (corresponding to February, 1975), with a sum of Rs. 500/-along with interest. In the next Bengali month of Chaitra, the plaintiff went to the defendants house to repay the loan with interest but the defendant started avoiding the plaintiff on one pretext or the other. The plaintiff became suspicious and she applied for the certified copy of the said document dated 25.08.1974 and after obtaining the certified copy she came to know that defendant had practised fraud on her and had not referred to or written about the agreement for re conveyance of the mortgaged property in case of full payment of loan. Plaintiff further claimed that contemporary market price of the suit property was Rs.6,000/-to Rs, 7000/-and the impugned deed is not an out and out sale deed but it is a deed of mortgage by conditional sale.

4. The defendant contested the suit by filing written statement and contended that on 25.06.1974, the plaintiff executed a deed of sale in favour of defendant and the possession of the suit land was also delivered to him. Further defence contention is that the plaintiff/appellant subsequently applied before the special officer Bishnupur under the West Bengal Restoration of Alienated Land Act, 1973 though said prayer of plaintiff was dismissed on 16.10.1984. Plaintiff did not prefer any appeal against the said order of dismissal. His further case is that the document in question is an out and out sale deed, since there is no re conveyance clause. Defendant further denied that plaintiff took any loan from him and he asserted that the suit property was sold at the prevailing market price. Defendant further contended that before the special officer, Bishunupur-1, in the aforesaid proceeding, plaintiff had acknowledged the impugned document as a sale deed. Defendant accordingly prayed for dismissal of the suit.

5. Learned Trial Court found that defendant is in possession in the suit property and that defendant had been paying revenue and ultimately came to a finding that impugned transaction was an out and out sale and accordingly Trial Court by a judgment and decree dated 31st August, 1994 was pleased to dismiss the suit on contest against the plaintiff

6. Being aggrieved by and dissatisfied with the judgment and decree passed by the Trial Judge, the plaintiff preferred aforesaid First Appeal being T.A. No. 379 of 1994 and after hearing learned court below was pleased to set aside the judgmen