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1955 Supreme(Gau) 49
Manipur High Court
BRIJ NARAIN, J.
Kangabam Bira Singh
Versus
Manipur Drivers Union Co-operative Association Ltd.
First Appeal No. 43 of 1955
Decided On : 09-09-1955
T.N. Bhattacharya, for Appellant; N. Ibotombi Singh, for Respondents.
A sale deed is an out and out sale and not a mortgage by conditional sale if it clearly states that it is a sale deed, if the plaintiff has not produced any evidence to show that the transaction was intended to be a mortgage, and if the plaintiff has not taken any steps to redeem the property after the execution of the sale deed.
Headnote:
SALE DEED - INTERPRETATION - MORTGAGE BY CONDITIONAL SALE - EVIDENCE ACT, SECTION 91 - TRANSFER OF PROPERTY ACT, SECTION 53-A - MESNE PROFITS - IMMOVABLE PROPERTY - MOTOR LORRY - CIVIL PROCEDURE CODE, SECTION 2(12), ORDER 33, RULE 14.
Fact of the Case:
Plaintiff alleged that the sale deed executed in favor of defendant 2 was actually a mortgage by conditional sale and sought to redeem the lorry. Defendant 2 denied the mortgage and claimed that the transaction was an out and out sale. Plaintiff also claimed mesne profits for the period during which the lorry was in possession of the defendants.
Finding of the Court:
The court held that the sale deed was an out and out sale and not a mortgage by conditional sale. The court also held that the plaintiff failed to prove that he had given a jeep to defendant 2 in satisfaction of the mortgage dues. The court further held that the plaintiff was not entitled to mesne profits as the lorry was not immovable property.
Issues: 1. Whether the sale deed was an out and out sale or a mortgage by conditional sale. 2. Whether the plaintiff had given a jeep to defendant 2 in satisfaction of the mortgage dues. 3. Whether the plaintiff was entitled to mesne profits.
Ratio Decidendi: 1. The court held that the sale deed was an out and out sale and not a mortgage by conditional sale based on the following reasons: (a) The deed itself clearly stated that it was a sale deed. (b) The plaintiff had not produced any evidence to show that the transaction was intended to be a mortgage. (c) The plaintiff had not taken any steps to redeem the lorry after the execution of the sale deed. 2. The court held that the plaintiff failed to prove that he had given a jeep to defendant 2 in satisfaction of the mortgage dues based on the following reasons: (a) The plaintiff's witnesses failed to prove that any jeep was actually delivered to defendant 2. (b) The plaintiff did not get the alleged receipt for the jeep registered. (c) The plaintiff did not take any steps to compare the signatures on the receipt with the admitted signatures of defendant 2. 3. The court held that the plaintiff was not entitled to mesne profits as the lorry was not immovable property.
Final Decision: The court dismissed the plaintiff's appeal and upheld the trial court's decision.
The suit (No. 6 of 1952 of the Sub-Judges Court, Manipur) which has given rise to the appeal was brought by the plaintiff-appellant for adjudging the sale deed dated 14-9-1946 executed by the plaintiff in favour of Moirangthen Mani Singh, respondent 2, Ex. A-2 as void and for recovery of Rs. 17,700/- as mesne profits on the allegation that he and defendants 1 to 3 were members of the Manipur Drivers Union Co-operative Association Ltd., and the plaintiff took a loan of Rs. 2500/- on 14-9-1946 from the Manipur Drivers Union through defendant 2 the then Secretary after pledging his lorry No. 427 A.S.M., but he executed the deed Ex. A-1 in the form of a sale deed.
The plaintiff further alleged that even though the deed in question was in the form of a sale deed it was really a mortgage by conditional sale as he promised to repay the loan and take back the lorry within one month. Lastly the plaintiffs allegation was that the loan was satisfied by him within the prescribed time limit by giving a jeep to defendant 2 and then the receipt dated 15-10-1946 Ex. P-A was obtained by him.
The lorry was kept in the custody of defendant 2 on the understanding that the plaintiff would get the net hire dues from this defendant, but the latter transferred the lorry to defendant 3 without giving any information to the plaintiff and defendant 3 took away the lorry, and so there was a litigation in criminal Court about this lorry.
Criminal Case No. 247 of 1950 was started against the plaintiff while criminal case No.66 of 1947 was started by the plaintiff against defendant 3 and ultimately on 16-7-1951 it was held that the present plaintiff should approach a proper Civil Court for the recovery of the lorry from the defendants and the same decision was given in Criminal Case No. 66 of 1947-48 on 4-8-1951. It was then that the present suit No. 6 of 1952 was brought by the plaintiff in the Court of the Sub-Judge, Manipur on 24-11-1951 in forma pauperis for recovery of possession of the lorry and also for mesne profits.
2. The defendants contested the suit on the ground that the transaction between defendants 1 and 2 and the plaintiff was that of an out and out sale and the sale deed Ex. A-1 was duly executed by the plaintiff after receiving its full consideration of Rs. 2500/-. The transaction regarding the jeep car and the issuing of the receipt Ex. P-A was totally denied.
It was also contended that the claim for mesne profits amounting to Rs. 17,700/- was barred by limitation under Art. 50, Limitation Act. Defendant 3 has urged in this Court that the present suit is not maintainable in view of the principle enunciated in S. 53-A, Transfer of Property Act. The learned Sub-Judge dismissed the suit and so the plaintiff has come in appeal to this Court. The following points arise for determination in this appeal :
1. Was the sale deed dated 24-9-1946 Ex. A-1 in reality a mortgage deed by conditional sale, and is the plaintiff entitled to redeem the lorry No. A.S.M. 427 in question?
2. Were the dues of defendants 1 and 2 duly paid up by the plaintiff by giving them a jeep on 15-10-1946, and is the receipt Ex. P-A genuine?
3. Is the plaintiff entitled to recover any mesne profits from the defendants on account of hire dues relating to the lorry in question or is any portion of the claim for mesne profits time-barred?
FINDINGS
3. Point No. 1. Kangabam Bira Singh plaintiff has stated that the transaction embodied in the deed Ex. A-1 dated 14-9-1946 was in reality a mortgage by conditional sale and entries were made in defendants account books as such. Aheibam Gokulchand Singh P. W. 8 has tried to vaguely support the plaintiffs statement on this point, but as the plaintiff has stood surety for him in a criminal case, his statement cannot be accepted at its face value.
Moreover, Aheibam Gokulchand Singh P. W. 8 has not exactly proved the contents of the account as had been seen by him in the year 1948-49, and so his statement is very vague. H. Tomba Singh, P. W
