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2000 Supreme(MP) 207
2000 (1) JLJ 327
(SUPREME COURT)
S. Saghir Ahmad and Y.K. Sabharwal, JJ.
Mushir Mohammed Khan v. Smt. Sajeda Bano and others
Civil Appeal No.9 to 1988: arising out of judgment and decree of
MP. High Court passed in
Second Appeal No. 107 of 1983: Decided on 2.3.2000.
S.K. Geambhir and Anil K. Sharma for appellant;
Dr. R.B. Masodkar and K.L. Taneja for respondents.
Headnote:(1) Transfer of Property Act, 1882--Ss. 55 and 58 -- whether a transaction is of mortgage or sale -- cannot be decided only on basis of recitals of the deed -- other circumstances established on record are also to be taken into account. [Para 7]
(2) Transfer of Property Act, 1882 -- Ss. 55 and 58(c) -- ‘mortgage by conditioned sale‘ and ‘sale with a condition to repurchase‘ -- are two different transactions -- form of transaction is not always final test -- true test is intention of the parties. [Para 7]
(3) Transfer of Property Act, 1882--S. 58 (c) proviso -- sale deed itself not containing the condition of re-conveyance -- transaction cannot be regarded a ‘mortgage by conditional sale ‘. AIR 1954 SC 345 and AIR 1960 SC 30 I relied on. . . [Paras 9 & 10]
(4) Transfer of Property Act, 1882--Ss, 58(c) and 55 -- mortgage by conditional sale -- relationship of mortgager and mortgagee is, created -- sale coupled with an agreement of reconveyance -- no relation of debtor and creditor is created. AIR 1966 SC 902 relied on, [Para 12]
(5) Transfer of Property Act, 1882 -- Ss, 58 and 55 -- whether a transaction is mortgage or out and out sale -- intention of the parties from contents of deed. surrounding circumstances are to be seen -- if transaction was by way of security -- it is mortgage. (1999) 3 SCC 573 and AIR 1960 SC 902 relied on. [Para 13]
(6)Transfer of Property Act, 1882 -- S. 58 (c) proviso -- sale deed itself not containing condition of re-purchase -- transaction is not of mortgage by conditional sale. [Para 14]
(7) Transfer of Property Act, 1882 -- S. 58 (c,) and (d) -- documents not creating mortgage by conditional sale -- such documents cannot create any other kind of mortgage -- usufructuary mortgage -- normally does not have agreement to reconveyance. AIR 1988 SC 1074 and AIR 1977 SC 1005 distinguished. [Para 16 & 17
(8) Transfer of Property Act, 1882 -- Ss. 58 -- Civil P.C. 1908 -- O. 34 H. 5 -- transaction not amounting to mortgage -- sale deed not representing true value -- agreement of reconveyance written by purchaser -d`rent note also written by seller -- transaction is of debt -- seller awarded correct value of property for doing complete justice. AIR 1988 SC 1074 and (1999) 8 SCC 511 relied on. [Paras 21 to 24]
¼1½ laifÙk varj.k vf/kfu;e] 1882&/kkjk 55 rFkk 58&laOogkj ca/kd dk gS vFkok foØ; dk&foys[k ds ifjorZu ek= ds vk/kkj ij fofufnZ‘pr ugha fd;k tk ldrk&vfHkys[k ij LFkkfir vU; ifjfLFkfr;ksa dks Hkh fopkj esa fy;k tkuk gksxkA ¿iSjk 7
¼2½ laifÙk varj.k vf/kfu;e] 1882&/kkjk 55 rFkk 58¼x½&^l‘krZ foØ; }kjk ca/kd* rFkk ^iqu%Ø; djus dh ‘krZ lfgr foØ;*&nks fHkUu laO;ogkj gSa&laOogkj dk ç:i lnk vafre dlkSVh ugha gksrk&lgh dlkSVh i{kdkjksa dk vk‘k; gSA ¿iSjk 7
¼3½ laifÙk varj.k vf/kfu;e] 1882&/kkjk 58 ¼x½ ijarqd&Loa foØ;&foys[k esa iqugZLrkarj.k dh ‘krZ varfoZ"V ugha&laOogkj ^l‘krZ foØ; }kjk ca/kd ugha ekuk tk ldrkA , vkb vkj 1954 ,l lh 345 rFkk , vkb vkj 1960 ,l lh 301 voyafcrA ¿iSjk 9 ,oa 10
¼4½ laifÙk varj.k vf/kfu;e] 1882&/kkjk 58 ¼x½ rFkk 55&l‘krZ foØ; }kjk ca/kd&ca/kddrkZ rFkk ca/kdnkj dk laca/k l`ftr gksrk gS&iqugZLrkarj.k ds djkj lfgr foØ;&_.kh rFkk ysunkj dk laca/k l`ftr ugha gksrkA , vkb vkj 1966 ,l lh 902 voyafcrA ¿iSjk 12
¼5½ laifÙk varj.k vf/kfu;e] 1882&/kkjk 58 rFkk 55&laOogkj ca/kd gS vFkok iw.kZr% foØ;&foys[k dh varoLrq ls i{kdkjksa dk vk‘k; rFkk çfros‘kh ifjfLFkfr;k¡ ns[ks tkuk gksaxs&;fn laO;ogkj çfrHkwfr ds vfHkçk; ls fd;k x;k Fkk&ca/kd gSaA ¼1999½ 3 ,l lh lh 573 rFkk , vkb vkj 1960 ,l lh 902 voyafcrA ¿iSjk 13
¼6½ laifÙk varj.k vf/kfu;e] 1882&/kkjk 58 ¼x½ ijarqd&Loa foØ;&foys[k esa iqu% Ø; fd, tkus dh ‘krZ varfoZ"V ugha&laOogkj l‘krZ foØ; }kjk ca/kd ugha gSA ¿iSjk 14
¼7½ laifÙk varj.k vf/kfu;e] 1882&/kkjk 58¼x½ rFkk ¼?k½&nLrkostksa ls l‘krZ foØ; }kjk ca/kd l`ftr ugha&,sls nLrkostksa ls fdlh vU; çdkj dk ca/kd l`ftr ugha gks ldrk&Hkksxca/kd&lkekUr%iqugZLrkarj.k dk djkj lekfo"V ugha gksrkA , vkb vkj 1988 ,l lh 1074 rFkk , vkb vkj 1977 ,l lh 1005 çHksfnrA ¿iSjk 16 ,oa 17
¼8½ laifÙk varj.k vf/kfu;e] 1882&/kkjk 58&flfoy çfØ;k lafgrk] 1908&vk-34 fu-5&laOogkj ca/kd dh dksfV dk ugha&foØ;&foys[k esa lgh ewY; of.kZr ugha&Øsrk }kjk iqugZLrkarj.k dk djkj fyf[kr&foØsrk }kjk HkkM+k i=d Hkh fyf[kr&laOogkj _.k dk gS&iw.kZ U;k; djus ds fy, foØsrk dks laifÙk dk lgh ewY; vf/kfu.khZrA , vkb vkj 1988 ,l lh 1074 rFkk ¼1999½ 8 ,l lh lh 511 voyafcrA ¿iSjk 21 ,oa 24
2. Treating the above documents as mortgage, Habibur Rehman, who shall hereinafter be referred to as plaintiff, filed a suit for redemption which was dismissed by the trial Court on 5th of July, 1979. The appeal filed thereafter was also dismissed by the Vth Addl District Judge, Bhopal on 21.12.1982. But the second appeal filed by the plaintiff was allowed by the Madhya Pradesh High Court by the impugned judgment dated 27.8.1987.
3. Learned counsel appearing on behalf of the appellant [hereinafter referred to as 'defendant'] has contended that the High Court was in error in treating the transaction between the plaintiff and the defendant as mortgage. He contended that since the condition of re-conveyance was not contained in the same document by which the property was sold by the plaintiff to the defendant the document could not be treated to be a deed of mortgage. It is contended that the agreement by which the defendant agreed to re-convey the property in question to the plaintiff was an entirely separate transaction between the parties and even if that document was read along with the sale deed executed earlier the cumulative effect of both the transactions would not result in a "mortgage" and they will remain two separate transactions, namely, a sale deed by which the property was transferred to the defendant and an agreement by which the defendant agreed to re-convey the property to the plaintiff
4. Learned counsel for the plaintiff, on the contrary, contended that the Judgment passed by the High Court, in the circumstances of the case, was wholly justified inasmuch as the property which was purchased by the plaintiff himself for a sum of Rs. 3,000/- was transferred to the defendant for a sum of Rs. 1,000/- only which was far less than the real value of the property which, with the lapse of time, escalates specially in big cities like Bhopal where the property in question is situate and, therefore, the transaction cannot be treated as an out and out sale but a mortgage which was executed by the plaintiff to secure the loan of Rs. 1000/- advanced by the defendant He also contended that the plaintiff who has remained in possession throughout, has already invested huge amount of money in the improvement of the house and has made additional room on the first floor which the plaintiff would not have done if he had sold the property absolutely in favour of the defendant. He contended that the conduct of the plaintiff in selling the property for a lower price than its actual value and investing huge amount even after the sale transaction indicated that the plaintiff knew and believed that he was still the owner of that property, which he would redeem one day. The transaction, by conduct, was, therefore, a mortgage and not a sale.
5. Let us first analyse the High Court judgment on this question before proceeding to consider the respective contentions of the
