Balam Monibhai Shaikh vs Ameen Karimbhai Shaikh (L.Rs.) ...
2016 Latest Caselaw 1281 Bom

                                                                SA No. 54/1992
                                         1




                                                                           
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                   
                           SECOND APPEAL NO. 54 OF 1992
                                        WITH
                         CIVIL APPLICATION NO. 4161 OF 1997
                                        WITH
                         CIVIL APPLICATION NO. 6151 OF 2011




                                                  
              Balam Monibhai Shaikh
              Age 50 years, Occu. Business,
              R/o. Shirdi, Taluka Kopargaon,




                                      
              Dist. Ahmednagar. (Died) per L.Rs.

     1-a.     Salim s/o. Balambhai Shaikh
                             
     1-b.     Usman s/o. Balambhai Shaikh
                            
     1-c.     Abdul s/o. Balambhai Shaikh

     1-d.     Shaikh Chand s/o. Balambhai Shaikh

              All Age Major, Occu. Business,
      

              R/o. Shirdi, Taluka Kopargaon,
              District - Ahmednagar.               ....Appellant.
   



                                                   (Ori. Defendant)

                      Versus





              Amin Karimbhai Shaikh
              Age 55 years, Occu. Agriculturist,
              R/o. Shirdi, Taluka Kopargaon,
              Dist. Ahmednagar.
              Deceased through his L.Rs.





     A)       Smt. Chhanubee Amin Shaikh
              Age 50 years, Occu. Household,
              R/o. Shirdi, Tal. Kopargaon,
              District Ahmednagar.

     B)       Madeenabee Amin Shaikh,
              Age 33 years, Occu. Service,
              R/o. Sainath Hospital,
              Shirdi, Tal. Kopargaon,




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                                                                       SA No. 54/1992
                                              2




                                                                                 
              Dist. Ahmednagar.

     C)       Rubabee Sandu Sayyad,




                                                         
              Age 29 years, R/o. Kolgaonpati,
              Tal. Kopargaon, District Ahmednagar.

     D)       Chandbee Amin Shaikh,
              R/o. Shirdi, Near Masjid,




                                                        
              Tal. Kopargaon, District
              Ahmednagar.                                ....Respondents.
                                                         (Ori. Plaintiff)




                                            
     Mr. V.D. Hon, Senior Counsel i/b. Shri. P.B. Shirsat, Advocate for
     appellants.
     Mr.     Sanket
                             
                          Kulkarni   h/f.   Mr.   S.D.   Kulkarni,      Advocate         for
     respondent Nos. 1A to 1D.
                            
                                            CORAM : T.V. NALAWADE, J.
                                            DATED : 6th April, 2016.
      


     JUDGMENT:

1) The appeal is filed to challenge the judgment and

decree of Regular Civil Suit No. 261/1983, which was pending in

the Court of Civil Judge, Senior Division, Kopargaon, District

Ahmednagar and also against the judgment and decree of

Regular Civil Appeal No. 127/1989, which was pending in the

Court of 3rd Additional District Judge, Ahmednagar. Both the

sides are heard.

2) The suit was filed for redemption of mortgage in

respect of house property bearing No. 303 situated at Shirdi,

SA No. 54/1992

Tahsil Kopargaon, District Ahmednagar. The size and boundaries

of the property are given in the plaint by the respondent,

plaintiff. It is his case that the property was mortgaged for

consideration of Rs. 9500/- to the defendant. Two documents

were executed by plaintiff in favour of defendant, dated

16.4.1970 and 13.7.1970 and under those documents, total

amount of Rs. 9500/- was taken as loan and the property was

mortgaged. It is contended that it was mortgage transaction and

so, plaintiff was entitled to get the redemption of mortgage, but

the defendant is not ready to return back the possession of the

property by accepting loan amount. The suit was filed on

25.2.1983.

3) The defendant filed written statement and contested

the matter. The defendant first contended that there was no

relationship as creditor and debtor between plaintiff and

defendant. Alternatively, defendant contended that he was

required to spend Rs. 4,000/- for repairs of one wall and plaintiff

is bound to give that amount also. Defendant contended that

plaintiff needs to give Rs. 9500/-, the loan amount and the

amount of Rs. 4,000/- spent by defendant on repairs and only

after that relief of redemption of mortgage can be given.

SA No. 54/1992

4) Issues were framed on the basis of aforesaid

pleadings. Both the sides gave evidence. Copies of aforesaid two

documents were produced on the record. In view of the contents

of the document and aforesaid pleading and nature of evidence,

both the Courts below have held that the transaction was of

mortgage by conditional sale. Both the Courts below have held

that the defendant failed to prove that he spent Rs. 4,000/- on

repairs and plaintiff is liable to pay that amount also.

5) When this Court admitted appeal on 9.2.1992, no

substantial question of law as such was framed. Learned Senior

Counsel Shri. V.D. Hon appearing for appellants submitted that

following substantial questions of law need to be formulated.

(i) Whether the Courts below have committed error

in construing documents and by holding that the

transaction was of mortgage by conditional sale ?

(ii) Whether the Courts below have committed error

in not considering the material and whether the

defendant has proved that he was required to spend

Rs. 4,000/- on repairs ?

(iii) Whether after expiry of period of 10 years, the

defendant had become owner in view of the language

of two documents ?

SA No. 54/1992

6) Both the Courts below have reproduced the relevant

contents of the two documents. Defendant did not produce the

original document and so, certified copies of two registered

documents were produced on the record and they are at Exhs.

22 and 23. In the first document dated 16.4.1969, there is

mention that the suit property was given in possession of

defendant under the transaction of conditional sale. The

document was also titled as conditional sale. The period of 10

years was fixed during which the defendant was to enjoy the

property and during which the plaintiff was to return the amount

after giving six months notice. In this document, there is

mention that the plaintiff had agreed to make the construction of

southern wall which was in dilapidated condition at his own cost.

Exh. 23, the second document was also titled as conditional sale

deed (but it was also specifically mentioned that it was

mortgage deed). Additional amount was accepted by plaintiff,

mortgagor, but the other conditions were kept intact. In the body

of the document also, it was specifically mentioned that it was

mortgage transaction and during the period fixed in the previous

document, the amount (Rs. 9500/-) was to be returned by the

mortgagor.

SA No. 54/1992

7) Both the Courts below have considered the

provisions of section 58 (c) of Transfer of Property Act, 1982 and

aforesaid contents of the two documents. On the basis of the

conditions laid down in aforesaid provision of law and the

contents of the two documents, the Courts below have held that

it was mortgage by conditional sale. In such document, always

the period is fixed for returning the money, but that does not

mean that after ig expiry of the period, the document

automatically becomes sale deed. The provision of section 67 of

the Transfer of Property Act, 1982 shows that it is necessary for

mortgagee to obtain decree of foreclosure before giving of the

decree of redemption by the Court in favour of mortgagor. Such

step was not taken.

8) The learned Senior Counsel placed reliance on the

case reported as 1982 (1) Bom.C.R. 811 [Nana Tukaram

Jaikar Vs. Sonabai w/o. Madhav Saindare & Ors.]. In view

of the facts of that case, it was held that the transaction was not

of mortgage transaction and there was no relationship of debtor

and creditor. It is also observed that the construction of

document involves question of law. There cannot be dispute over

this proposition. In view of the facts and circumstances of the

present case, which are already quoted, this Court has no

SA No. 54/1992

hesitation to observe that it was mortgage transaction and the

mortgage was mortgage by conditional sale. As aforesaid steps

were not taken by defendant, mortgagee, the plaintiff was

entitled to get redemption of mortgage. Defendant failed to

prove that he has spent Rs. 4,000/- on repairs and he was

entitled to get back that amount. So, the aforesaid points are

answered accordingly against the defendant and following order

is made. ig ORDER

The appeal stands dismissed. All Civil Applications

disposed of.

Five weeks time is given to the appellants to

challenge the decision of this Court. Till then the decree is not to

be executed.

[ T.V. NALAWADE, J. ]

ssc/