Bombay High Court
Subhadrabai Himmatrao Thakur vs Jaydeep Vinayak Sali And Others on 24 March, 2021
Bench: Anil S. Kilor
1 921-2018-SA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 921 OF 2018
Subhadrabai Himmatrao Thakur
Age : 59 years, Occu : Household,
R/o Mohadikar Plot, Kalyan Bhavan,
Zami Chauk Road, Amalner,
Tq. Amalner, Dist. Jalgaon .. Appellants
(Orig. Defendant)
Versus
1] Jaydeep Vinayak Sali,
Age : 48 years, Occu : Service,
R/o Sudaiv, 173/2013, Patil Colony,
Amalner, Dist. Jalgaon
2] Pradip Vinayakrao Sali,
Age : 50 years, Occu : Service,
R/o Bhaktipushpa, MIG III,
33, HUDCO, Manmad, Dist. Nasik
3] Vinayakrao Shankarrao Sali,
Age : 50 years, Occu : Pensioner,
R/o Sudaiv, 173/2003, Patil Colony,
Amalner, Dist. Jalgaon
4] Rohini Dilip Sali,
Age : 44 years, Occu : Household,
5] Ku. Suyog Dilip Sali (minor)
Represented by mother guardian
Rohini Dilip Sali
6] Ku. Shubhada Dilip Sali,
Age : 23 years, Occu : Education,
Nos. 4 to 6 R/o Vaibhav-Laxmi Apartment,
Govind Nagar, First Chauk, Mumbai Naka,
Nasik, Tq. & Dist. Nasik .. Respondents
::: Uploaded on - 01/04/2021 ::: Downloaded on - 03/09/2021 09:54:31 :::
2 921-2018-SA
...
Mr. M.L. Dharashive, Advocate for the appellant
Mr. B.N. Magar, Advocate and Mr. S.S. Puri, Advocate for
respondent no. 3 - caveator
...
CORAM : ANIL S. KILOR, J.
DATE : 24-03-2021
ORDER :
1. The original defendant by way of present Appeal is challenging the
Judgment and Decree passed by the District Judge-1 in Civil Appeal no. 52 of
2005, upholding the Judgment and Decree dated 16-9-2015 passed in
RCS/23/2009, decreeing the suit for redemption of mortgage and for
possession of the mortgaged property.
2. I have heard learned counsel for the appellant.
3. Brief facts of the present case are as follows. [Parties are referred
as per their status in suit].
. It is the case of the plaintiff that the plaintiff was in need of
money and the defendant paid ` 25000/- against which a document - "हमीपत्र"
was executed and thereby possession was handed over to the defendant on
condition that on repayment of amount of ` 25000/-, the defendant will hand
over the possession of the suit property which is a constructed house bearing
CTS No. 3456/2, Kalyan Bhavan, Mohadikar Plots, admeasuring 30 feet each
East-West and 13 feet each North-South. According to the plaintiff, the said
document is a mortgage deed executed on 09-01-1998. It is the further case of
3 921-2018-SA
the plaintiff that after making payment of ` 25000/-. the possession was
demanded by the plaintiff, however, on one or the other pretext the defendant
avoided to handover the possession to the plaintiff which caused the plaintiff to
file suit for redemption of mortgage and for possession. The learned trial
Court decreed the suit in favour of the plaintiff and directed the defendant to
handover the possession of the mortgaged property within one month on
deposit of ` 25000/- by the plaintiff in the Court vide Judgment and Decree
passed in RCS/23/2009.
4. Feeling aggrieved by the said Judgment and Decree, the
defendant preferred an Appeal viz. Civil Appeal no. 52/2015 which came to be
dismissed by the impugned Judgment and Decree dated 31-10-2017 passed by
the District Judge-1 Amalner.
5. Learned counsel for the appellant submits that the document
"हमीपत्र" - exhibit 53 is wrongly considered by both the Courts below as a
mortgage deed whereas there is no word "mortgage" used in the said document
and, therefore, considering the said "हमीपत्र" as mortgage deed, is erroneous.
6. He further submits that if the document - exhibit 53 is a mortgage
deed in that case, the same cannot be read in evidence as the said document is
not a registered mortgage deed which is required to be registered one under
the provisions of the Registration Act, 1908.
4 921-2018-SA
7. To consider the contentions raised by learned counsel for the
appellant, I have gone through the record and proceedings and also the
judgments of both the Courts below.
8. The appellant is not disputing execution of the document -
exhibit 53 and the contents of the same. It is true that the title of the
document - exhibit-53 is "हमीपत्र" (Undertaking), however, after going through
the contents and after reading it minutely, the intention of the parties can be
gathered from the same and it is clear that the intention of the parties to was
execute a mortgage deed in respect of the suit property.
9. It is settled law that to know the intention of the parties to any
document, the contents of the document should be taken into consideration
and not the title of the document. Thus, both the Courts below after
considering the contents of the document and also after considering the
intention of both the parties to execute the said document, has arrived at a
definite conclusion that the said document is a mortgage deed. As I observed
that after considering the contents of the document, I am also of the same view
that the said document is a mortgage deed and in that view of the matter, I do
not find any perversity or illegality in the findings recorded by both the code
below that exhibit - 53 is a mortgage deed.
10. As regards the second contention of the learned counsel for the
appellant that if this document is considered to be a mortgage deed, in that
event, it is mandatory to have the said document registered one under the
provisions of the Registration Act, 1908. There is no dispute about the said
5 921-2018-SA
legal position of law, however, it is a settled law that even if the said
document is not a registered one, it can be used for collateral purposes and in
the present matter, both the Courts below have considered the said document
for the collateral purposes to arrive at a particular conclusion and to decide the
controversy between the parties.
11. Thus, I do not find any merit in the present appeal and, therefore,
in absence of any substantial question of law involved in the present appeal,
the Appeal is dismissed. No order as to costs.
12. In view of dismissal of Second Appeal, civil application no. 14435
of 2018 stands disposed of.
[ ANIL S. KILOR ]
JUDGE
arp/
