Bombay High Court
Bhairu (L.Rs.) Manik Bhairu ... vs Rajendra Balbhim Kinikar on 19 July, 2016
Bench: T.V. Nalawade
1 SA 270 of 1990
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 270 of 1990
* Bhairu, died his legal
representatives:
1) Manik s/o Bhairu Jagtap,
Age 44 years,
Occupation ; Agriculture,
R/o Ruibhar,
Taluka & District Osmanabad.
2) Vithal s/o Bhairu Jagtap,
Age 54 years,
Occupation: Agriculture
R/o As above.
3) Subhash s/o Bhairu Jagtap,
Age 38 years,
Occupation: Agriculture,
R/o As above.
4) Chandrabhagabai w/o Bhairu Jagtap,
Age 74 years,
Occupation: Household,
R/o As above.
5) Jijabai s/o Dagdu Mane,
Age 45 years,
Occupation: Household,
R/o Ansurda,
Taluka & District Osmanabad.
6) Bhamabai w/o Dasa Bhanage,
Age 44 years,
Occupation: Agriculture,
R/o Ruibhar,
Taluka & District Osmanabad.
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2 SA 270 of 1990
7) Sakharbai w/o Bhimrao Kolge,
Age 29 years,
Occupation: Household,
R/o Wadi Bamni,
Taluka & District Osmanabad. .. Appellants.
Versus
* Rajendra S/o Balbhim Kinikar,
Age 48 years,
Occupation : Agriculture,
R/o Baramgaon (Budruk)
Taluka & District Osmanabad. .. Respondent.
ig --------
Smt. M.A. Kulkani, Advocate, for appellants.
Shri. A.S. Shelke, Advocate, for respondent.
--------
CORAM: T.V. NALAWADE, J.
DATE : 19th JULY 2016
JUDGMENT:
1) The appeal is filed against the judgment and
decree of Regular Civil Suit No.107/1979 which was
pending in the Court of the Civil Judge, Junior Division,
Osmanabad and against the judgment and decree of
Regular Civil Appeal No.28/1983 which was pending in
the Court of the 3rd Additional District Judge, Osmanabad.
Suit filed by respondent Rajendra for relief of possession,
redemption of mortgage etc., is decided by the trial Court
in his favour and the first appellate Court has confirmed
3 SA 270 of 1990
the decision though on different grounds by giving
different reasons. Both sides are heard.
2) In short, the facts leading to institution of the
appeal can be stated as follows :-
3) The suit was filed in respect of land Survey
No.81 admeasuring 4 acres 19 gunthas situated at
Bharamgaon (Budruk), Tahsil Osmanabad. It is the case of
the plaintiff that he was in need of money and so he had
approached defendant Bhairu for giving loan of Rs.5,500/-.
It is his case that he wanted to make repayment of loan
taken from one cooperative society and he was in need of
money for other purposes also. It is contended that he
mortgaged the property for getting loan of Rs.5,500/- from
defendant and he was to get the property back within 7
years from the date of transaction. It is contended that
said transaction was made on 12-5-1972 and possession
was given to defendant Bhairu and he was to enjoy the
income from the property as interest on the principal
amount. It is contended that the document which was
titled as sale deed was executed as a security and there
4 SA 270 of 1990
was specific mention that within 7 years the property was
to be re-conveyed to the plaintiff.
4) It is the case of the plaintiff that market price
of the property was Rs.5,000/- per acre and so it was not
sale transaction. It is contended that annual income from
the property was around Rs.3,000/-. It is contended that
as loan was already taken by mortgaging this property
with VKSS Society, sale of the property was not
permissible in view of provisions of sections 47 and 48 of
the Maharashtra Cooperative Societies Act. It is
contended that the transaction of sale is void under these
provisions if the property is mortgaged to cooperative
society.
5) In the suit, plaintiff contended that the
transaction itself is void in view of the provisions of the
said Act and alternatively he is entitled to get redeemed
the property by repaying the amount of Rs.5,500/-. Thus,
two reliefs were claimed, one for declaration that the
transaction was void and other for redemption of the
mortgage.
5 SA 270 of 1990
6) Successors of Bhairu filed written statement
and they contested the matter. They denied that it was
mortgage transaction. However, they admitted that there
was agreement that plaintiff was to pay amount of
consideration within 7 years from the date of execution of
the document and then land was to be returned to the
plaintiff. It is contended that the plaintiff did not avail that
opportunity and so the suit cannot be decreed. They
denied that there was bar of the provisions of the
Maharashtra Cooperative Societies Act to the transaction
made in favour of Bhairu. They contended that Bhairu
had deposited the money with the said cooperative society
to make payment of dues of plaintiff and so sale deed was
not void.
7) On the basis of the aforesaid pleadings issues
were framed. Both sides gave evidence. The trial Court
gave declaration that the sale deed was void and it was hit
by the provisions of the Maharashtra Cooperative
Societies Act as contended by the plaintiff. In the appeal
filed by the defendants the decision is upheld by the first
appellate Court but it is held that the transaction is
6 SA 270 of 1990
mortgage by conditional sale which falls under section
58(c) of the Transfer of Property Act.
8) This Court, other Hon'ble judge, admitted the
appeal by order dated 10-8-1990 but no substantial
questions of law were formulated. In view of nature of
dispute this Curt allowed both sides to argue on following
substantial question of law.
"Whether the first appellate Court has committed error in
holding that the transaction between the parties was
mortgage by conditional sale under section 58(c) of the
Transfer of Property Act ?"
9) The original document is at Exhibit 44. The
document was executed on 12-5-1972. Title of the
document is "sale deed". Only at the end condition is
quoted as addition to the document and it is mentioned
that the consideration mentioned in the document of sale
viz. Rs.5,500/- was to be returned by the vendor to the
purchaser within 7 years from the date of execution and
he was to get the land redeemed.
7 SA 270 of 1990
"rk- d- jDde etdq j vkt iklq u 7 o"kkZ ap s vkr rq E gkl n s Åu
tehu lk sM o wu ?k s. ;kpk eyk gDd vkg s "
There is oral evidence of the plaintiff which is consistent
with the pleadings of the mortgage. One witness Balbhim
is examined on Exhibit 44 by the plaintiff and he has
supported the case of the plaintiff. He has deposed that
the document was nominal and it was mortgage
transaction.
10) In rebuttal, Subhash, a son of Bhairu, has given
evidence. He has no personal knowledge regarding the
transaction and it can be said that he is relying mainly on
the contents of Exhibit 44.
11) The aforesaid material shows that there is
evidence of the plaintiff and one witness on the document
with the plaintiff and there is also evidence of contents of
the document in favour of the plaintiff and as against that
there is evidence of one son of Bhairu who has no
personal knowledge.
8 SA 270 of 1990
12) Both sides relied on some reported cases.
Learned counsel for the appellant relied on a case
reported as AIR 1992 SC 1236 (Tamboli Ramanlal Motilal
v. Ghanchi Chimanlal Keshavlal). In that case even when
there was condition of repurchase in the document and
time of 5 years was given, in view of the other contents of
the document and the fact that the suit was filed in the
year 1966 when the document was executed in the year
1950, the Apex Court held that there was intention of sale
and it was not mortgage transaction. It is also observed
that the case law cannot make much difference and each
case needs to be decided on the basis of the facts of that
case. In one case reported as 2006 (1) Mh.L.J. 867
(Vamanrao vs. Vithal) this Court held that document was
out and out sale. In that case also the document was
executed in the year 1953 and 10 years period was given
for repurchase of the land but the suit was filed in the
year 1986. In the first case the Apex Court had given
stress on a circumstance that in the document there was
no condition of forfeiture.
9 SA 270 of 1990
13) Learned counsel for the respondents placed
reliance on three reported cases like (1) AIR 1954 SC 345
(Chunchun Jha v. Ebadat Ali); (2) AIR 2006 SC 3359
(Tulshi v. Chandrika Prasad); and (3) AIR 2008 SC 2510
(Vishwanath Dadoba Karale v. Parisa Shantappa
Upadhye). In these cases the Apex Court has discussed
provisions of section 58(c) of the Transfer of Property Act.
In the first case it is laid down that question as to whether
the transaction is a mortgage by conditional sale or a sale
outright with a condition of repurchase is a vexed one and
it needs to be decided on its own facts. It is observed that
intention of the parties is a determining factor. There
cannot be dispute over this proposition. In the present
matter the recital of the document which is in favour of
the plaintiff is quoted and the recital shows that right was
given to redeem the property and the period of 7 years
was fixed. The suit was filed within this period of 7 years
is again one circumstance in favour of the plaintiff. In the
cases cited for the appellant the suits were filed after the
period which was mentioned in the document. The first
appellate Court appreciated the oral evidence and the
document is interpreted in favour of the plaintiff. This
10 SA 270 of 1990
Court holds that the District Court has not committed any
error in interpreting the document in favour of the
plaintiff, in holding that it was the mortgage transaction.
14) Learned counsel for the appellant argued much
on a circumstance that the first appellate Court has given
right of set off to the plaintiff and the plaintiff is allowed
to deduct the cost of the matter before depositing the
mortgage money in Court. It can be said that after
deducting such cost the money is deposited by the
plaintiff in the Court. On the basis of this circumstance
learned counsel for the appellant submitted that plaintiff
was never ready to return the amount. It was submitted
that if the transaction is treated as sale with condition of
repurchase, relief cannot be given in favour of the
plaintiff. This submission is not acceptable. Learned
counsels for parties make submissions which are suitable
to their case but it is upto the Court to decide the
matter. In any case, the costs generally follow the cause.
The trial Court had not given decree of cost in favour of
the plaintiff and the first appellate Court made an attempt
to give such decree. So on that point also it is not possible
11 SA 270 of 1990
to interfere in the decision of the appellate Court. In the
result, the point is answered in favour of the respondent,
plaintiff and the appeal is dismissed. Protection of six
weeks to the possession is granted.
Sd/-
(T.V. NALAWADE, J. )
rsl
