Bombay High Court
Pandharinath Dagadu Kankate Lrs ... vs Kalnath Bhijaki Kankate Lrs Karbhari ... on 1 August, 2024
(1) 924sa191.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
924 SECOND APPEAL NO. 191 OF 2018
PANDHARINATH DAGADU KANKATE LRS BATTASABAI LRS
MARUTI AND OTHERS
....Appellants
VERSUS
KALNATH BHIJAKI KANKATE LRS KARBHARI AND OTHERS
.....Respondents
Mr. V. D. Hon, Senior Advocate i/b Mr. A. V. Hon, Advocate, Mr.
A. D. Sonkawade, Advocate and Mr. Shubham Kote, Advocate
for the appellants
Mr. N. B. Ubale, Advocate h/f Mr. L. K. Pradhan, Advocate for
the respondent Nos. 1A to 1C
CORAM : KISHORE C. SANT, J.
DATE : 01st AUGUST, 2024
P. C.
1. Heard the parties.
2. This appeal by the original defendants challenging
the decree passed in appeal by reversing the judgment and order
passed by the learned trial court.
3. Facts in short are that, a document was executed by
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respondents-original plaintiffs in favour of appellants-original
defendants on 20-06-1962. The document is styled as sale deed
with a clause of reconveyance. Conditional sale deed shows that
land was sold for an amount of Rs.500/- i.e. land Survey
No.65/1B/1 from the village Korhale, Tq. Rahata. Possession is
handed over on the date of said conditional sale deed with a
condition that if the vendor repays the amount within five years,
the property was to be reconvened in favour of the vendor. In
case there is failure to repay the amount, sale deed was to
become absolute sale deed. Further contents of the sale deed
shows that if no amount is repaid within five years, vendee shall
become absolute owner of the property. Plaintiffs also acted
upon a document.
4. Plaintiff, however filed a suit bearing RCS
No.485/1981 for redemption of mortgage. It is the case of the
plaintiff that he went and offered an amount of Rs.500/- to the
vendee and requested to reconvey the property. Learned trial
court dismissed the suit holding that the said document was not
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a mortgage by conditional sale attracting provisions of section
58 (c) of the Transport of Property Act. The learned trial court
did not accept oral evidence that the deceased plaintiff had been
to the vendee for reconveyance of the property by tendering an
amount of Rs.500/- by judgment and order dated 06-10-2004.
5. Being aggrieved, heirs of the plaintiff filed an appeal
bearing RCA No. 84/2011 in the court of learned District Judge,
Kopargaon. It is seen from the title clause that said RCA
No.84/2011 came to be dismissed as against heirs of deceased
Pandharinath Kankate. Said RCA was thus prosecuted only
against heirs of Dada Dagadu Kankate.
6. Learned appellate court interpreted document to be
a mortgage document. Learned appellate court further
interpreted the document attracting the provision of Section
58(c) of the T. P. Act and allowed the appeal by setting aside the
judgment and order passed by the learned trial court by its
judgment and order dated 27-10-2017. Thus, the appeal stands
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allowed only against heirs of Dada Dagadu Kankate and not
against heirs of Pandharinath Kankate.
7. Before this court legal heirs of Dada Dagadu Kankate
as well as Pandharinath Kankate have filed appeal. Learned
senior counsel argued the appeal. He submits that in the present
case substantial question of law arises about interpretation of
the document. He has taken this court through the recital in the
document. He submits that recital and the contents of the sale
deed of the document would clearly show that it was not a
document of mortgage. There is nothing to show that the
plaintiffs demanded reconveyance by tendering an amount of
consideration. The contents would further show that
reconveyance was to be executed only in case, if the amount was
repaid. On failure to repay the amount within five years, same
was to become absolute. There is no other interpretation
possible. Learned District Judge has wrongly interpreted
document and thus there is a substantial question of law
involved in the appeal. He relies upon the judgment in the case
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of Vanchalabai Raghunath Ithape Vs Shankarrao Babuao Bhilare
reported in (2013) 7 SCC 173. Subhash Malhari Muneshwar
and Another Vs Arvinde Anandrao Kadam and another reported
in (2019) 17 SCC 685 and Rajendra Lalitkumar Agrawal Vs
Ratna Ashok Muranjan and anohter reported in (2019) 3 SCC
378. In all these judgments, it is held that question of
interpretation of document raises a substantial question of law.
8. Learned advocate for the respondent vehemently
opposed the appeal stating that no substantial question of law is
involved. Question is purely about the interpretation of the
document. Learned District Judge has rightly interpreted the
document. Recital shows that amount of consideration was
already taken in two installments for purchasing of land. Since
the plaintiffs could not repay the amount, taken as hand loan, he
executed the document. The document is not intended to be
executed as sale deed. But was executed because of nonpayment
of amount of hand loan. Thus, it needs to be interpreted that
document is document of mortgage by conditional sale by
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relying upon section 58(C). He further submits that now he has
deposited an amount of Rs.500/- in the District Court. He thus,
prays for rejection of the appeal. In support of his submission he
relied upon the judgment in the case of Bhimrao Ramchandra
Khalate Vs Nana Dinkar Yadav and another reported in (2021) 9
SCC 45. The Hon'ble Apex Court in the said case had held that
document therein was a document of mortgage by conditional
sale. As in that case the document was executed after the
plaintiff had quarrel, the amount from the defendant from house
expenses and thereafter possession of the land was handed over
to the defendant on condition of giving back the possession
within one year from the date of conditional sale.
9. Considering all above, this court finds that in the
present case, necessary question is about interpretation of
document. In view of the same, this court is inclined to admit
the appeal on the following substantial question of law.
"1. Whether the learned appellant court has
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rightly interpreted the document dated 20-06-1962
holding it to be mortgage by the conditional or
whether document is document of sale with a
condition of purchase
2. If the document is considered to be mortgage sale
or otherwise, whether the plaintiff has proved that
he has acted as per the document and tendered
amount with request to reconvey the property"
10. Admit.
11. Call R & P.
[KISHORE C. SANT, J.]
VishalK/924sa191.18
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