Bombay High Court
Navinchand Khushalchand Mutha vs Ganaji Damu Sonde on 6 June, 2016
Bench: T.V. Nalawade
1 SA 251 of 2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 251 of 2002
* Navinchand Khushalchand Mutha,
Occupation : Agriculture,
R/o Deolali Pravara,
Taluka Rahuri,
District Ahmednagar. .. Appellant.
Versus
* Banaji Damu Sonde,
Since deceased per
legal representatives.
1) Anjani Bhausaheb Gagre,
Age 36 years,
Occupation : Household
R/o At & Post Tambhere,
Taluka Rahuri,
District Ahmednagar.
2) Manjula Dhondiram More,
Age 32 years,
Occupation: Household,
R/o. Deolali Pravara,
Taluka Rahuri,
District Ahmednagar.
3) Tarabai Sahebrao Pathare,
Age 30 years,
Occupation: Household,
R/o Mamdapur,
Taluka Shrirampur,
District Ahmednagar.
4) Mathurabai Vithalrao Nalkar,
Age 33 years,
Occupation: Household,
R/o Taharabad, Taluka Rahuri,
District Ahmednagar.
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2 SA 251 of 2002
5) Gangubai Banaji Sonde,
Age 45 years,
Occupation: Household,
R/o Deolali Pravara,
Taluka Rahuri,
District Ahmednagar.
6) Ravsaheb Banaji Sonde,
Age 30 years,
Occupation: Household,
R/o Deolali Pravara,
Taluka Rahuri,
District Ahmednagar.
7)
Santosh Khushalchand Mutha,
Age 43 years,
Occupation: Agriculture,
R/o Deolali Pravara,
Taluka Rahuri,
District Ahmednagar.
8) Narendra Khushalchand Mutha,
Age 41 years,
Occupation: Agriculture,
R/o Deolali Pravara,
Taluka Rahuri,
District Ahmednagar.
9) Rajni Birdichand Chopda,
Age 40 years,
Occupation: Agriculture
R/o Ichalkaranji,
District Sangli.
10) Suraj Khushalchand Mutha,
Age 28 years,
Occupation: Agriculture
R/o Ichalkaranji,
District Sangli.
11) Alka Shivlal Gandhi,
Age 27 years,
Occupation: Agriculture
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3 SA 251 of 2002
R/o Junnar, Taluka Khed,
District Ahmednagar.
12) Asha Chandrakant Gandhi,
Age 27 years,
Occupation: Household,
R/o Ahmednagar.
13) Chanchal @ Baby Premraj Gandhi,
Age 34 years,
Occupation: Household,
R/o Deolali Pravara,
Taluka Rahuri,
District Ahmednagar.
14)
Shantabai Khushalchand Mutha,
Age 49 years,
Occupation Household,
R/o Deolali Pravara,
Taluka Rahuri,
District Ahmednagar.
15) Sakahari Genu Sansare,
Age 38 years,
Occupation: Agriculture
R/o Deolali Pravara,
Taluka Rahuri,
District Ahmednagar. .. Respondents.
--------
Shri. S.S. Bora, Advocate, for appellant.
Shri. V.D. Hon, Senior Advocate, for respondent Nos.1 to
6.
Shri Ram B. Deshpande, Advocate, for respondent Nos.7
to 14.
--------
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4 SA 251 of 2002
CORAM: T.V. NALAWADE, J.
DATE : 6th JUNE 2016.
JUDGMENT:
1) The appeal is filed against the judgment and
decree of Regular Civil Appeal No.358/1997 which was
pending in District Court Ahmednagar. The appeal of the
present respondents, plaintiffs, is allowed by the District
Court and the suit filed by the respondents for relief of
redemption of mortgage is decreed. Both the sides are
heard.
2) The suit was filed in respect of land Survey
No.655/4 (Gat No.2132), admeasuring 2 hectares 31 R
situated at village Deolali Pravara, Tahsil Rahuri, District
Ahmednagar. The owner of this land has right to take
water from the well situated in previous Survey No.655 in
the proportion of the area.
3) It is the case of the respondent, plaintiff that in
the year 1970 the suit property was given by way of
mortgage to Khushalchand, the predecessor-in-title of
present appellant for securing debt amount of Rs.5000/-
5 SA 251 of 2002
taken from Khushalchand. The document of mortgage was
registered and the period of 5 years was mentioned in the
document. It is contended that before expiry of the period,
the amount was tendered to defendant No.1, Navinchand,
successor of Khushalchand, but he refused to accept the
amount. It is contended that the possession of the land
was given to Khushalchand and so possession was also to
be returned by defendant No.1 to the plaintiffs. It is
contended that notice was then issued in the year 1984
through Advocate and they were requested to accept the
amount and return back the possession. It is contended
that false reply was given by successors of Khushalchand
and they refused to return back the land and so cause of
action took place for the suit. Relief of redemption of this
mortgage was claimed.
4) Defendant No.1 filed written statement and
contested the matter. He did not dispute that the suit land
was initially belonging to the plaintiffs. The defendant
contended that under document dated 15-9-1970 the land
was given in possession of Khushalchand and under the
disputed document, the transaction of absolute sale was
6 SA 251 of 2002
made and it was not a mortgage transaction. It is
contended that Khushalchand died in the year 1972 and
the plaintiffs were not in a position to return the money
and repurchase the property as per the aforesaid
agreement. Defendant No.1 contended that on 28-5-1974
the plaintiffs agreed to sell the suit property and one more
land viz Survey No.655/2 to the defendant No.1 for
consideration of Rs.42,000/- and the agreement was
written on a stamp paper. It is contended that on the date
of the agreement cash amount of Rs.10,000/- was given
and the previous amount of Rs.5,000/- was adjusted as
earnest money. It is contended that remaining amount of
Rs.27,000/- was to be given at the time of execution of
sale deed and the sale deed was not immediately executed
as it was necessary to take permission under the
provisions of the Prevention of Fragmentation and
Consolidation of Holdings Act. It is contended that on 28-
5-1974 under agreement of sale possession of the land
Survey No.655/4 was confirmed but the possession of
Survey No.655/2 was to be given after taking permission
of the revenue authorities.
7 SA 251 of 2002
5) It is the case of the defendant No.1 that he was
always ready and willing to perform his part of contract.
He contended that he is entitled to the protection of
Section 53-A of the Transfer of Property Act as he came in
possession as the part performance of the contract.
Defendant No.1 admitted that notice dated 3-1-1984 was
issued by the plaintiffs to him and he admitted that reply
was given by him. Defendant No.1 contended that he has
spent huge amount for improving the quality of the land
and he has spent amount for preparing the land for
horticulture. He prayed for dismissal of the suit.
6) Issues were framed on the basis of the
aforesaid pleadings by the trial Court. Only the plaintiff
gave evidence. The plaintiff was cross examined to some
extent but as no interest was shown to further cross
examine the plaintiff, order of "No Cross" was made by
the trial Court. The trial Court dismissed the suit by
holding that the defendant No.1 is entitled to protection of
the provision of Section 53-A of the Transfer of Property
Act. However, the trial Court had held that the transaction
of 1970 was of mortgage.
8 SA 251 of 2002
7) The first appellate Court held that there was
agreement of sale but the agreement of sale had not
discharged the liability under the mortgage and there was
no merger of the previous transaction into the agreement
of sale. The first appellate Court held that the plaintiffs
are entitled to redemption of mortgage. The first appellate
Court has considered the conditions which need to be
fulfilled for taking protection of section 53-A of the
Transfer of Property Act and has held that two conditions
of Section 53-A of the Transfer of Property Act including
readiness and willingness to perform part of the contract
are not fulfilled. By giving such finding the suit for
redemption is decreed by the first appellate Court.
8) This Court, other Hon'ble Judge, admitted the
appeal by observing that substantial questions of law
raised in Ground Nos.1 to 3 in the appeal memo need to
be decided in the second appeal. Thus, following
substantial questions of law are formulated :-
(i) Whether defendant No.1 is entitled to take
protection of section 53-A of the Transfer of Property
9 SA 251 of 2002
Act though the prescribed period of limitation for suit
of specific performance has expired ?
(ii) Whether in view of the observations made by the
Apex Court in the case of Shrimant Suryawanshi,
reported as 2002 AIR SCW 659 and the ratio of
Mahadeo v. Surajbai, 1994 Mh.L.J. 1145, the District
Court has committed error in holding that protection
of section 53-A of the Transfer of Property Act is not
available as the suit for specific performance is barred
by limitation ? And,
(iii) Whether the District Court has committed error
in not considering the material on the record and in
holding that conditions which need to be fulfilled for
getting protection of section 53-A of the Transfer of
Property Act are not fulfilled by defendant No.1 ?
9) Both the Courts below have held that the
transaction of 1970 was mortgage transaction. This
finding of the trial Court was not challenged by the
present appellant. The document at Exhibit 62 of 1970
shows that it was titled as conditional sale ( 'krZ [kj sn h [kr ).
Period of 5 years was fixed and it was mentioned that if
the amount is not returned within 5 years, the document
was to be treated as sale deed. Within this period the
10 SA 251 of 2002
plaintiff was expected to get redeemed the property ( tehu
lk sM wo u ?k sb Z u ).
10) The definition of mortgage and mortgage by
conditional sale can be found in section 58 of the Transfer
of Property Act. Relevant provision is as under :
"58. "Mortgage",
ig "mortgagor", "mortgagee",
"mortgage-money" and "mortgage-deed" defined .--
(a) A mortgage is the transfer of an interest in specific
immovable property for the purpose of securing the
payment of money advanced or to be advanced by way of
loan, an existing or future debt, or the performance of an
engagement which may give rise to a pecuniary liability.
The transferor is called as mortgagor, the transferee a
mortgagee; the principal money and interest of which
payment is secured or the time being are called the
mortgage-money, and the instrument (if any) by which
the transfer is effected is called a mortgage-deed.
(b) ....
(c) Mortgage by conditional sale - Where, the
mortgagor ostensibly sells the mortgaged property--
on condition that on default of payment of the mortgage-
money on a certain date the sale shall become absolute,
or
11 SA 251 of 2002
on condition that on such payment being made the sale
shall become void, or
on condition that on such payment being made the
buyer shall transfer the property to the seller,
the transaction is called mortgage by conditional sale
and the mortgagee a mortgagee by conditional sale:
Provided that no such transaction shall be deemed to
be a mortgage, unless the condition is embodied in the
document which effects or purports to effect the sale."
11)
It is true that only because the condition that
on repayment of the money the buyer shall transfer the
property to the seller is embodied in the document,
inference cannot be straightway drawn that it was
mortgage by conditional sale. It is also true that the real
intention needs to be ascertained on the basis of contents
of the document. This Court has no hesitation to hold
that the aforesaid contents which are mentioned for the
present purpose are sufficient to infer that it was
mortgage by conditional sale. Further the finding on this
point given by the trial Court was not challenged by the
defendant. The relationship of mortgagor and mortgagee
continued and subsequent transaction needs to be
considered separately.
12 SA 251 of 2002
12) There is something more against defendant
No.1 on aforesaid point. Defendant No.1 is relying on
document of agreement of sale, Exhibit 73. The suit
property is mentioned in this document and it is
mentioned that plaintiffs had agreed to sell this land and
other land like Survey No.655/2 for the consideration of
Rs.42,000/-. There is specific mention that amount of
Rs.5000/- was taken as loan and it was to be returned for
redemption of mortgage and that amount was adjusted in
the amount of Rs.42,000/- mentioned as consideration in
Exhibit 73. (5000 ji; s eyk vki.kkl 'krZ [kj sn h ik sV h xgku
lk sM o wu ?k s. ;klkBh n;ko;kp s r s otk d#u 37000 ji; s jk s[ k
n;ko;kp s vkg sr - ). In view of such mention in Exhibit 73 it
was not open to defendant No.1 to contend that in the
year 1970 sale deed was executed and there was only
agreement of re-transfer.
13) The learned counsel for the appellant placed
reliance on a case reported as AIR 2013 SC 2924
(Vanchalabai v. Shankarrao). In this case the Apex Court
has reproduced and considered the observations made by
13 SA 251 of 2002
it in the case reported as AIR 1992 SC 1236 (Tamboli
Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal) . the
relevant portion is as under :-
"16. In order to appreciate the respective
contentions, it is necessary for us to analyse Ex.26
dated December 11, 1950. Before that, it is necessary
to utter a word of caution. Having regard to the nice
distinctions between a mortgage by conditional sale
and a sale with an option to repurchase, one should be
guided by the terms of the document alone without
much help from the case law. Of course, cases could
be referred for the purposes of interpreting a
particular clause to gather the intention. Then again,
it is also settled law that nomenclature of the
document is hardly conclusive and much importance
cannot be attached to the nomenclature alone since it
is the real intention which requires to be gathered. It
is from this angle we propose to analyse the
document. No doubt the document is styled as a deed
of conditional sale, but as we have just now observed,
that is not conclusive of the matter.
17. What does the executant do under the document ?
He takes a sum of Rs.5,000/- in cash. The particulars
are (a) Rs.2,499/- i.e. Rs.899/- by mortgage of his
house on 27-1-1944 and (b) Rs.1,600 by a further
mortgage on 31-5-1947 totalling to Rs.2,499/-,
Thereafter, an amount o Rs.2,501/- in cash was taken
from the transferee. The purpose was to repay
miscellaneous debts and domestic expenses and
14 SA 251 of 2002
business. It has to be carefully noted that this amount
of Rs.5,000/- was not taken as a loan at all. As rightly
observed by the High Court, by executing this
document the executant discharges all the prior debts
and outstandings. Where, therefore, for a
consideration of a sum of Rs.5,000/- with the
conditional sale is executed, we are unable to see how
the relationship of debtor and creditor can be forged
in. In other words, by reading the document as a
whole, we are unable to conclude that there is a debt
and the relationship between the parties is that of a
debtor and a creditor. This is a vital point to
determine the nature of the transaction."
14) There cannot be dispute over the propositions
made in the aforesaid cases cited by the learned counsel
for the appellant. The relevant material is considered by
this Court which includes the wording used in the
disputed document and also the subsequent transaction,
agreement of sale between the same parties. In view of
the facts of the present case, there is no other alternative
than to hold that it was mortgage by conditional sale. It is
true that the intention of the parties needs to be gathered
from the document of transaction ordinarily. The conduct
of the parties prior to the execution of document and even
subsequent to the execution of the document cannot be
15 SA 251 of 2002
ignored. When there is some doubt about the real
intention such conduct can be considered and such
conduct can be considered even for confirmation about
the intention which can be gathered from the wording of
the document.
15) So far as the defence taken that the appellant-
defendant is entitled to protection of the provision of
section 53-A of the Transfer of Property Act is concerned,
it can be said that the conditions laid down in section 53-A
of the Act need to be fulfilled for getting such protection.
Firstly it needs to be ascertained as to whether in a case
like the present one, such protection was available due to
peculiar circumstances of the case and then secondly it
needs to be ascertained as to whether the conditions laid
down in section 53-A of the Act are fulfilled. On this point
learned counsel for the respondents placed reliance on a
case reported as AIR 1982 SC 989 (Govindrao Mahadik v.
Devi Sahai). The observations, which are relevant for the
present matter, are at paragraphs 31 and 32 and they are
as under :-
16 SA 251 of 2002
"31. . . . . To qualify for the protection of the doctrine
of part-performance it must be shown that there is a
contract to transfer for consideration immovable
property and the contract is evidenced by a writing
signed by the person sought to be bound by it and
from which the terms necessary to constitute the
transfer can be ascertained with reasonable certainty.
These are prerequisites to invoke the equitable
doctrine of part performance. After establishing the
aforementioned circumstances it must be further
shown that a transferee had in part performance of the
contract either taken possession of the property or any
part thereof or the transferee being already in
possession continues in possession in part
performance of the contract and has done some act in
furtherance of the contract. The acts claimed to be in
part performance must be unequivocally referable to
the pre-existing contract and the acts of part
performance must unequivocally point in the direction
of the existence of contract and evidencing
implementation or performance of contract. There
must be a real nexus between the contract and the
acts done in pursuance of the contract or in
furtherance of the contract and must be unequivocally
referable to the contract. . . . . "
"32. We may recall here that the acts preliminary to
the contract would be hardly of any assistance in
ascertaining whether they were in furtherance of the
contract. Anything done in furtherance of the contact
postulates the pre-existing contract and the acts done
17 SA 251 of 2002
in furtherance thereof. Therefore, the acts anterior to
the contract or merely incidental to the contract
would hardly provide any evidence of part
performance."
For using the observations made by the Apex Court in the
cases cited supra, if the facts of the present matter are
seen it can be said that in the present matter, in part
performance of the contract, the previous possession of
the defendants was confirmed under the document of
agreement of sale and some consideration was paid to the
plaintiffs. In view of these circumstances it can be said
that some conditions laid down in Section 53-A of the Act
were fulfilled. The necessary conditions which need to be
fulfilled for getting protection of section 53-A can be
found in the same case (cited supra) at paragraph 10 and
they are as under :-
"10. In order to qualify for the protection conferred by
the equitable doctrine of part performance as enacted
in S.53-A, the following facts will have to be
established:
"(1) That the trasnferor has contracted to transfer for
consideration any immovable property by writing
18 SA 251 of 2002
signed by him or on his behalf from which the terms
necessary to constitute the transfer can be ascertained
with reasonable certainty;
(2) That the transferee has in part-performance of the
contract taken possession of the property or any part
thereof, or the transferee, being already in possession,
continues in possession in part performance of the
contract;
(3) That ig the transferee has done some act in
furtherance of the contract; and
(4) That the transferee has already or is willing to
perform his part of the contract."
16) From the facts of the present case already
quoted and the requirements of section 53-A, it can be
said that the first three conditions quoted above are
fulfilled. The execution of the document of agreement of
sale is proved in the present matter and other two
conditions are fulfilled as already observed. The question
remains as to whether the remaining conditions of
readiness and willingness on the part of the defendants to
perform his part of the contract were fulfilled. From the
contents of the agreement of sale, Exhibit 73, it can be
19 SA 251 of 2002
said that total area of 2 hectares 24 R was to be sold to
the defendants for consideration of Rs.42,000/-. The
amount of Rs.5,000/- was already paid as mortgage money
under Exhibit 62 and so the remaining consideration
which was to be paid, was Rs.37,000/-. Out of that amount
Rs.10,000/- was paid under Exhibit 73 and so the amount
remained was Rs.27,000/-. Even if it is considered that in
respect of land Survey No.655/4 the total amount of
Rs.10,000/- was paid, the defendant was liable to pay the
remaining amount of Rs.11,000/- if the consideration is
divided for aforesaid two lands. The defendant was
already in possession and so he was expected to take
steps for completion of the transaction.
17) In agreement, Exhibit 73, it is mentioned that
possession of land Survey No.655/2 was to be received
from the revenue authorities as rights of third party
tenant were involved in that land and then the permission
of the Sub Divisional Officer was to be obtained for sale
transaction and then the possession of land Survey
No.655/2 was to be given to the defendant. The relevant
contents run as under :-
20 SA 251 of 2002
R;kpk rkck yodjp eglwy vf/kdkjh ;kapsdMwu feG.kkj vkgs- R;kosGh
dCtsikorh nsowu o R;k vxksnj es- iazkr lkgsc ;kaph ijokuxh vk.kqu tehu
vkiYks dCtkr nsbZu-
This mention was in respect of land Survey No.655/2 as it
was previously in possession of tenant though he had
handed over the possession before making the order by
the concerned authority. There is another mention in
Exhibit 73 which can be said to be in respect of land
Survey No.655/4. It is mentioned that for sale transaction
permission of Assistant Collector Ahmednagar was
required to be obtained. The Act under which permission
was required to be obtained was not mentioned in Exhibit
73. In the pleadings of the written statement it is
mentioned that permission was necessary under the
provisions of the Prevention of Fragmentation and
Consolidation of Holdings Act. The area of the land was 1
hectare 12 R and specific admission is given by the
defendant in the cross examination that from the year
1977 there was no necessity of obtaining such permission.
Nothing is shown to this Court to create probability that
such permission was necessary under the aforesaid Act or
21 SA 251 of 2002
any other Act. Thus the agreement of sale was made on
28-5-1974 and at least from 1977 there was no necessity
of permission and it was within the knowledge of the
defendant. In spite of this circumstance, no steps at all
were taken by the defendant for performance of his part
of the contract like making payment of remaining
consideration to the plaintiff. Admittedly the plaintiff had
given notice dated 3-1-1984 and its copy is produced on
the record. It is not disputed that this notice was replied
by the defendant but the reply was not produced. From
the reply it could have been ascertained as to whether the
defendant was ready and willing to pay the remaining
amount to the plaintiff for getting the sale deed executed.
Though such reply was not proved a copy of such reply
was shown to this Court. It can be said that the defendant
wanted to use the document of mortgage by conditional
sale as the document of absolute sale and he wanted to
show that he had become owner as the money was not
returned within the period fixed in Exhibit 62. In the
evidence also the defendant had taken stand that the land
was not given by way of mortgage to him and so the
plaintiff has no right to get back the land from him. In the
22 SA 251 of 2002
evidence, he has stated that the amount was not returned
within time fixed in the aforesaid document. In the
evidence he has not stated that he is still ready to pay the
remaining amount. Thus, no evidence is given to prove the
readiness and willingness by the defendant. On the
contrary, the defendant had no intention to pay remaining
amount and he wanted to prove that he had become
owner under the document at Exhibit 62. Due to this
circumstance, inference is easy that the remaining
conditions of section 53-A of the Transfer of Property Act
are not fulfilled by the defendants.
18) There is one more circumstance against the
defendant. In the agreement, Exhibit 73, one more land
viz Survey No.655/2 was mentioned. Admittedly, this land
was sold to third party even prior to the date of suit by the
plaintiff but no steps were taken by the defendant to get
relief in respect of Survey No.655/2. He was to pay
consideration for completing that transaction also. It can
be said that no steps at all were taken by the defendant to
show his readiness and willingness. Due to this
circumstance, the protection of section 53-A of the Act
23 SA 251 of 2002
cannot be given to the defendant.
19) Reliance was placed by the learned counsel for
the appellant on the cases reported as AIR 1970 SC 546
(Nathulal v. Phoolchand); AIR 1971 SC 1238 (R.C.
Chandiok v. Chuni Lal Sabharwal), AIR 2005 SC 3503
in support of the
(Aniglase Yohannan v. Ramlatha)
aforesaid contentions made in respect Section 53-A of the
Transfer of Property Act. Facts and circumstances of each
and every case are always different. Relevant facts of the
present matter are already quoted by this Court. These
cases are of no help to the appellant.
20) The learned counsel for the appellant submitted
that the first appellate Court has not framed relevant
points and findings are not given specifically on the
relevant points on which the issues were framed and on
that ground the decision of the first appellate Court needs
to be set aside. In support of this contention reliance was
placed on the cases reported as (1) 2006 (6) Mh.L.J. 759
(Khatunbi v. Aminabi), (2) AIR 2013 SC 2924
(Vanchalabai v. Shankarrao) and the decision given by
24 SA 251 of 2002
this Court in Second Appeal No.68 of 1991 (between
Abdul Kadar and Ammenabi). The facts of these reported
cases were also different. In the present matter the
District Court has considered the relevant points and
findings on relevant points are given by the District Court.
In view of this circumstance, this Court holds that it is not
possible to interfere in the decision given by the District
Court. All the three points of substantial questions of law
are answered against the appellant.
21) In the result, the appeal stands dismissed. The
prayer for relief of continuation of the stay to the
execution of the judgment and decree given by the first
appellate Court is refused.
Sd/-
(T.V. NALAWADE, J. )
rsl
