Bombay High Court
Parashram Karbhari Autade ... vs Ranjana Nanasaheb Walunj on 24 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.510 OF 2019
WITH
CIVIL APPLICATION NO.10659 OF 2019
IN SA/510/2019
PARASHRAM KARBHARI AUTADE
THROUGH GPA HOLDER
ASHISH SURESH @ SAVKAR DAUND
VERSUS
RANJANA NANASAHEB WALUNJ
.....
Advocate for Appellant : Mr. V. D. Salunke
Advocate for Respondent : Mr. N. V. Gaware
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 24-08-2021
ORDER :
1. Present appeal has been filed by the original defendant
challenging the concurrent Judgment and decree passed by the Courts
below. Present respondent/original plaintiff had filed Regular Civil Suit
No.93 of 2012 before Joint Civil Judge Senior Divsiion, Shrirampur,
district Ahmednagar, for redemption of mortgage. The said suit came
to be decreed on 09-04-2015. The original defendant challenged the
said Judgment and decree by filing Regular Civil Appeal No.21 of 2015.
The said appeal was heard and dismissed by learned District Judge-1,
Shrirampur, District Ahmednagar, on 05-04-2019. Hence, this second
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appeal.
2. Heard leaned Advocate Mr. V. D. Salunke for appellant and
learned Advocate Mr. N. V. Gaware for respondent.
3. It has been vehemently submitted on behalf of the plaintiff
that both the Courts below have not considered the facts and
evidence on record. The registered deed dated 02-12-2002 Exhibit
49 though titled as mortgage deed, yet in fact it was a conditional
sale with repurchase. The nomenclature of the document cannot be
the only criteria to consider the nature of the transaction. The
evidence adduced by the plaintiff has been taken as gospel truth
whereas the evidence adduced by the defendant has been brushed
aside without any sound reasons. In fact, the First Appellate Court
has not considered the entire evidence properly, points are also not
sufficiently determined. Another fact that has not been properly
considered is that the time of the essence of the contract as per the
contents of Exhibit 49. Plaintiff had not taken steps for
reconveyance within five years period and, therefore, it ought to
have been considered by both the Courts as to whether the said
transaction had become absolute sale considering the wordings in
the deed itself as has been laid down in Chunchun Jha vs. Ebadat
3 SA 510-2019, CA 10659-2019
Ali, reported in AIR 1954 (SC) 345. Another fact that has not been
considered is that the said property was belonging to Waman
Namdeo Dond who had given consent to execute deed dated 02-12-
2002 Exhibit 49. He expired leaving behind his widow. The widow
was not party to the suit for redemption and, therefore, the suit was
suffering from non-joinder of necessary parties. Another fact which
was important was that the document was executed on 02-12-2002,
the reconveyance was to be got done within five years i.e. up till
2007, however, the suit was filed in the year 2012. It was beyond
the period of three years and, therefore, the substantial legal
question in respect of Limitation Act is arising in this case. Though
the issue was framed by the Trial Court and also point was framed in
that respect by the First Appellate court, yet they have not
considered it in proper perspective. They have wrongly presumed
that since the document is mortgage deed, limitation of 30 years
would be applicable. Therefore, in view of Ishwar Dass Jain (dead
through LRs. vs. Soham Lal (dead) by L.Rs., reported in AIR 2000
Supreme Court 426, and Bhusawal Borough Municipality vs.
Amalgamated Electricity Company Limited, reported in 1966 AIR
(SC) 1652, the appeal deserves to be admitted by framing
substantial questions of law.
4 SA 510-2019, CA 10659-2019
4. Per contra, the learned Advocate appearing for the respondent
supported the reasons given by both the Courts below and
submitted that when the dispute has been considered in respect of
all the points raised, oral as well as documentary evidence has been
considered so also the law points involved then it cannot lead to
substantial questions of law. Exhibit 49 was the registered
document. No doubt nomenclature also showed that it is a
mortgage deed, yet even the contents also repeatedly conveyed that
the parties had the intention to enter into the transaction of
mortgage. Even in the oral evidence of the defendant he has stated
that after the document was executed, there was discussion
regarding purchase of the property and the plaintiff was saying that
she want to execute the sale deed after that document was
executed. That means, the transaction was different from the
transaction as alleged by the defendant. The witness examined by
the defendant also says that the amount of Rs.2,50,000/- was the
amount for mortgage. Hence, both the Courts have correctly held
that the transaction was mortgaged and, therefore, limitation was 30
years to get the mortgage redeemed.
5. If both the Courts below have considered the documentary as
5 SA 510-2019, CA 10659-2019
well as oral evidence as well as the law points have also been
considered properly then definitely it will not lead to substantial
questions of law. Reliance can be placed on the Full Bench decision
of the Hon'ble Apex Court in Sir Chunilal V. Mehta and sons Ltd. vs.
Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962
Supreme Court 1314 (1), wherein it has been held that,
"It is well settled that the construction of a document
of title or of a document which is the foundation of
the rights of parties necessarily raises a question of
law. The roper test for determining whether a
question of law raised in the case is substantial would
be whether it is of general public importance or
whether it directly and substantially affects the rights
of the parties and if so whether it is either an open
question in the sense that it is not finally settled by
this Court or by the Privy Council or by the Federal
Court or is not free from difficulty or calls for
discussion of alternative views. If the question is
settled by the highest Court or the general principles
to be applied in determining the question are well
settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd
the question would not be a substantial question of
law."
6. When the document Exhibit 49 is admittedly executed, it would
6 SA 510-2019, CA 10659-2019
be necessary to see whether the party had the intention to enter
into the transaction of mortgage or it was a sale with condition to
repurchase. Definitely, how such document is to be interpreted has
been well settled in the decision of Chunchun Jha vs. Ebadat Ali
(Supra) wherein it has been held that :-
"The intention of the party has to be gathered from
the documents itself along with the surrounding
circumstances. Where a document has to be
construed, the intention must be gathered, in the first
place, from the document itself. It the words are
express and clear, effect must be given to them and
any extraneous enquiry into what was thought or
intended is ruled out. The real question in such a
case is not what the parties intended or meant but
what is the legal effect of the words which they used.
If however, there is ambiguity in the language
employed, then it is permissible to look to the
surrounding circumstances to determine what was
intended. The rule of law on this subject is one
dictated by commonsence; that prima facie an
absolute conveyance, containing nothing to show that
the relation of debtor and creditor is to exit between
the parties, does not cease to be an absolute
conveyance and become a mortgage merely because
the vendor stipulates that he shall have a right to
repurchase. If the sale and agreement to repurchase
7 SA 510-2019, CA 10659-2019
are embodied in separate documents then the
transaction cannot be a mortgage whether the
documents are contemporaneously executed or not.
But the converse does not hold good, that is to say
the mere fact that there is only one document does
not necessarily mean that it must be a mortgage and
cannot be a sale. If the condition of repurchase is
embodied in the document that effects or purports to
effect the sale, then it is a matter for construction
which was meant. The legislature has made a clear
cut classification and excluded transaction embodied
in more that one document from the category of
mortgages, therefore it is reasonable to suppose that
persons who, after the amendment, choose not, to
use two documents, do not intend the transaction to
be a sale, unless they displace that presumption by
clear and express words; and if the conditions of
Section 58 (o) are fulfilled, then we are of opinion
that the deed should be construed as a mortgage."
7. If we consider Exhibit 49 then it can be seen that it was
executed by the plaintiff with consent of Waman Namdeo Dond.
Now it has been tried to be contended that the said Waman Dond
expired leaving behind his widow and then he is contending that the
suit is bad for non-joinder of necessary party. The learned Trial
Judge has correctly considered that the defendant himself had
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suggested the P.W.2 Nanasaheb Waghuji Walunj that plaintiff had
purchased 2 H 9 R land out of Gut No.126 i.e. the suit property from
her father on 03-10-2001 for the consideration of Rs.3,90,000/- and
the suit property is part of that land. The said fact put to him in
cross-examination on behalf of the defendant has been admitted by
the witness of the plaintiff. Under such circumstances, when
defendant knows it very well that the suit property was owned by
the plaintiff then it does not lie in the mouth of defendant now to
challenge the transaction itself or take objection regarding the suit
on the basis of non-joinder of necessary parties. This point can also
be considered from another angle. Admittedly the plaintiff is the
daughter of the said Waman. After Waman, the property would
devolve on his heirs. Apart from plaintiff, as per the contention of
the defendant, only widow is the legal heir left by Waman. Mortgage
can be got redeemed by any of the legal heirs and it is not
necessary then that all the sharers would be necessary party to such
suit. Such redemption would be for and on behalf of the entire
family.
8. Coming to the document Exhibit 49 it can be seen that on the
day of execution of the said document, the plaintiff had already
9 SA 510-2019, CA 10659-2019
received amount of Rs.2,50,000/- by way of loan. It is stated that
that amount has been taken in part for agriculture and to mitigate
hand loan. That means, this amount of Rs.2,50,000/- was given as
loan. Thus, it creates the relationship of creditor and debtor
between the parties to the document. The land was put in
possession of the defendant, and further it is stated as a term that
defendant would be entitled to make improvement in the Well as the
water is less and at the time when the time to redeem would come
plaintiff would mitigate that amount. It appears that the defendant
is harping upon following term in the document :-
"oj uewn tehu rqEgkal vktjksth xgk.kLo#ih cksyhus 'krZ [kjsnh nsowu rh
xgk.kLo#ih ofgokVhlkBh rqeps rkC;kr fnysyh vkgs- lnj tehuhr vlysY;k
fofgjhl ik.kh viqjs vkgs- iq<s rqEgh fofgjhlkBh dkgh lq/kkj.kk dsY;kl R;k [kpkZph
jDde tehu lksMqu ?ksrsosGh eh rqEgkal nsbZy-
---------
vktiklwu 5 os o"khZ gaxke'khj cksyhus rqeph jDde rqEgkal ijr nsoqu tehu lksMqu
ek>s rkC;kr ?ksbZy- rqeph jDde rqEgkal ijr fnY;k[ksjht tehuhpk rkck ijr
ekx.kkj ukgh."
9. Thus, it reads that the plaintiff would pay the amount and
definitely it has to be related to Rs.2,50,000/- within a period of five
years and she would read the land, till the amount is given she will
not claim possession of the land. This term cannot be interpreted as
10 SA 510-2019, CA 10659-2019
defendant intends to convey that it is a condition to repurchase.
There is absolutely no recital that if the plaintiff fails to repay that
amount within the period of five years then the said document would
be considered as sale deed. That means, there was no clause of
forfeiture enumerated in the document itself. The defendant cannot
put another interpretation which is not there in the document.
10. If we consider the oral evidence of the defendant and his
witness also then it can be seen that they are accepting that the
amount of Rs.2,50,000/- was given to the plaintiff as a loan and the
witness is clearly admitting that it was a document of mortgage.
Both the Courts, therefore, after assessing the oral as well as
documentary evidence on record and also on the basis of the
principles laid down in Chunchun Jha vs. Ebadat Ali (Supra) have
rightly considered that the Exhibit 49 was the transaction of
mortgage.
11. Since the transaction was mortgage then for its redemption
the limitation would be 30 years and not the 3 years as claimed by
the appellant/original defendant.
12. Since the substantial questions of law are not arising, the ratio
11 SA 510-2019, CA 10659-2019
laid down in Ishwar Dass Jain (dead) through LRs vs. Sohan Lal
(dead) by L.Rs. (Supra) and Bhusawal Borough Municipality vs.
Amalgamated Electricity Company Limited (Supra), will not be
helpful to the appellant.
13. Recently in Kirpa Ram (since deceased through L.Rs.) and
Others vs. Surendra Deo Gaur and Others, reported in 2021 (3)
Mh.L.J. 250, by the three Judges Bench of the Hon'ble Apex Court, it
has been held that,
"High Court is not obliged to frame substantial
question of law when it finds no error in findings
recorded by the First Appellate court. Formulation or
reformulation of the same in terms of proviso arises
only if there are some questions of law and not
otherwise."
Since the substantial questions of law as contemplated under
Section 100 of the Code of Civil Procedure are not arising in this
case, the second appeal stands dismissed. Pending Civil Application
also stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
