Gujarat High Court
Tushar Naranbhai Alias Nalinbhai Patel vs Kishorchand Kalidas Parekh on 17 September, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2308 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 2308 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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TUSHAR NARANBHAI ALIAS NALINBHAI PATEL
Versus
KISHORCHAND KALIDAS PAREKH & ORS.
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Appearance:
MR.DEVEN PARIKH, LD. SENIOR ADVOCATE for MR SP
MAJMUDAR(3456) with MR. HJ KARATHIYA(7012) for the Appellant(s) No. 1
ADITYA R PARIKH(8769) for the Defendant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 3.5,3.5.1
MR.MIHIR JOSHI, LD. SENIOR ADVOCATE for MR AMIT V
THAKKAR(3073) for the Defendant(s) No. 3.1,3.2,3.3,3.4,3.5.1.1,3.5.2
UNSERVED EXPIRED (N) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 17/09/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This First Appeal is filed by the original plaintiff.
The challenge is to the judgement and decree
dated 25.04.2018 passed by the learned Principal
Senior Civil Judge, Gandhinagar in Special Civil
Suit No.178 of 2017. By the aforesaid
judgement, the learned Trial Judge entertained
an application under Order VII Rule XI(a) and (d)
on behalf of the defendant nos.2 and 3 -
respondent nos.2 and 3 herein and dismissed the
suit of the appellant.
2. FACTS IN BRIEF:
2.1 The appellant filed a Special Civil Suit for
specific performance, permanent injunction and
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declaration. The narrative in the plaint was as
under:
(a) The suit was filed for agricultural land at
Ahmedabad, sub-district Gandhinagar,
Taluka:Gandhinagar, Mouje Gam Zundal,
Revenue Khata No.473, Block Survey No.483
admeasuring 10218 square meters.
(b) According to the plaintiff, during the course
of negotiations, the defendant no.1 had
confirmed that he was the sole and absolute
owner of the suit land and therefore competent
to sell.
(c) It was decided and agreed that the plaintiff
will pay Rs.36,00,000/- in installments to the
defendant no.1. Initially payment of the
Rs.20,00,000/- in four equal installments and the
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balance of Rs.16,00,000/- would be paid. The
case of the plaintiff was that four cheques of
Rs.5,00,000/- each had duly been received by the
defendant no.1.
(d) The parties decided to execute a sale deed
for which a visit was made at the office of the
sub-registrar where one Ghanshyamji Chamanji,
defendant no.3/4 had lodged objections on
13.06.2017.
(e) Having come to know of some disputes
pending between defendant no.1 and defendant
nos.2 to 5, a Banakhat was thereafter executed
on 25.06.2017 between defendant no.1 and the
plaintiff.
(f) According to the plaintiff, the Banakhat
made a clear disclosure on the part of the
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defendant no.1 that he had acquired the land as
a legal heir of Nathiben who was a mortgagee.
Late Ranaji Bhaluji Thakore, a mortgagor had
entered into a mortgage by conditional sale on
27.04.1943, inter-alia, one of the conditions
being that in the event the mortgagor fails to pay
a debt of Rs.475/- within a period of five years
then the mortgagee will be entitled to get the
ownership of the mortgaged land. By virtue of
this conditional sale, the defendant no.1 was the
owner.
(g) The plaintiff's case further was that the
defendant no.1, in collusion with defendant nos.2
to 5, executed a release deed dated 13.09.2017
on being paid Rs.21,00,000/-. Such a release
deed was bad and the defendant No.1 had legal
obligation to execute the Banakhat on the
payment of remaining consideration of
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Rs.16,00,000/-.
2.2 The case of the defendant no.2 and 3 in the
suit, through the written statement, after listing
a chronology of events and dates was that the
mortgage was not a mortgage by conditional
sale. As the mortgage deed was not a mortgage
by conditional sale, the defendant no.1 had no
right to execute a Banakhat as he was not the
owner of the property, land in question. That
revenue entries made as a result of the execution
of a mortgage deed did not confer ownership
rights on defendant no.1.
2.3 The defendant nos.2 and 3 further stated
that the suit filed by defendant no.1 being RCS
No.171/2010 for a declaration that he is the
owner of the land, was dismissed for want of
prosecution on 31.08.2016.
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2.4 The deed of 27.04.43 was not a mortgage by
conditional sale as per Section 58(c) of the
Transfer of Property Act. In fact, after the
execution of the mortgage deed, the possession
remained with the mortgagor Ranaji and Bai
Nathu went abroad and in the year 2010 an
amount of Rs.400/- was paid to her relative and
as decided, the remaining amount of Rs.75/-
would be paid to her on her return to India.
Even after her death the disputed revenue
entries in favour of the mortgagee were an issue
of revenue litigation. The defendants also
namely defendants 2 and 4 had filed a Regular
Civil Suit No.146 of 2010. For a declaration that
the land in question be declared as free from
encumbrance and mortgage. That a release deed
was signed on 23.08.2017 and therefore the
defendant no.1 was no longer and never was the
owner of the land in question.
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2.5 The defendant nos.2 and 3 also filed an
application under Order VII Rule XI(a) and (d)
that in light of the fact that as the defendant no.2
and 5 had already entered into a release deed
and even otherwise there was no mortgage by
conditional sale, on reading the very document of
1943, no course of action was available to the
plaintiff and moreover the deed of mortgage
itself when read suggested otherwise. Not being
the owner of land, the defendant no.1 had no
right to sell and therefore the plaintiff could not
seek specific performance and therefore the suit
had an illusionary cause of action.
2.6 After exchange of arguments, the Trial
Court, by the order under challenge, held that
the deed of mortgage could not be read to be a
mortgage by conditional sale but a usufructuary
mortgage and accordingly allowed the defendant
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nos.2 and 3's application under Order VII Rule XI
and dismissed the suit.
3. Mr.Devan Parikh learned Senior Advocate
assisted by Mr.S.P.Majmudar learned advocate
with Mr.H.J.Karathia made the following
submissions:
3.1 Mr.Parikh would submit that originally the
land was owned by one Ranaji Bhaluji Thakore.
He had mortgaged the land in question to the
mother of the defendant no.1 Bai Nathi. This
was done by mortgage deed dated 27.04.1943.
Reading the mortgage deed, Mr.Parikh would
submit that it was a mortgage by conditional sale
for a period of five years. The period of five
years and its meaning and the document in
question was a subject matter of interpretation.
The Trial Court therefore could not have
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entertained an application under Order VII Rule
XI when the issue was triable.
3.2 Mr.Parikh would submit that the limitation
would start running from the prescribed period
of five years as so stipulated in the mortgage
deed. Once the period of five years came to an
end, the mortgagor gave up his right to redeem
and therefore the original defendant no.1
became an owner of the property with full
possession.
3.3 Mr.Parikh would submit that reading of the
plaint would indicate that it is the case of the
appellant plaintiff that the defendant no.1 had
confirmed to the appellant plaintiff that he was
the sole and absolute owner of the suit land and
therefore, competent to sell and/or deal with the
suit land. Even in the revenue records the name
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of the defendant no.1 was entered which would
indicate the ownership of the defendant no.1. It
was in light of this situation that the defendant
no.1 as owner entered into a sale deed on
23.06.2016 only when one Ghanshyamji
Chamanji, one of the legal heirs of the mortgagor
M/s.Ranaji Bhaluji Thakore filed his written
objection on 13.06.2017 that the sale deed could
not be registered. It was on this count that a
banakhat was entered into between the plaintiff
and the defendant no.1 on 25.06.2017.
3.4 Mr.Devan Parikh would extensively refer to
the recitals in the sale deed and submit that all
these recitals would go to show that it was
beyond doubt that the defendant no.1, the seller
was the owner of the property. Once it was
shown that proceedings under the revenue laws
and including the Inam Act vested the title, the
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title in the defendant no.1's mother, the
ownership and therefore the right to deal with
the property could not be disputed.
3.5 Mr.Parikh would submit that even the
subsequent conduct of the defendants viz. that of
the defendant no.1 and 2 to enter into a release
deed within two months on 23.08.2017 was a
mala-fide conduct which was a triable issue. It
was a case where the conduct of the defendant
no.1 was one where after the sale deed the
money was pocketed by the defendant citing the
release deed with original owner. It was a
clearly collusive act which can be inferred from
the fact that the Civil Suit filed by the mortgagee
for a declaration that the mortgagor had no
right, title or interest was a suit being Regular
Civil Suit No.171 of 2009 which was dismissed
for non-prosecution. Civil Suit No.146 of 2010
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filed by the mortgagor against the mortgagee
was also settled. This obviously indicated a
collusion between the defendant no.1 and 2
which was a triable issue and could not have
been summarily dealt with in an Order VII Rule
XI application.
3.6 Taking us through the plaint of Regular Civil
Suit No.146 of 2010 filed by the mortgagor,
Mr.Parikh would submit that when the
averments in the plaint are read, it would be
preposterous to believe that for the land which
was mortgaged for a loan of Rs.475/- would be
redeemed on a condition that Rs.75/- would be
paid later when Bai Nathi would return from
abroad. The contents of the suit are completely
different from the contents of the release deed.
The release deed in fact was a sale. From the
averments in the plaint filed by the appellant, it
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was clear that whether the release deed was in
fact a sale and whether it defeated the rights of
the appellant to enter into a sale was a triable
issue as the documents in question has to be
interpreted by leading evidence.
3.7 Mr.Parikh would submit that reading para 2
of the suit being Regular Civil Suit No.170 of
2010 filed by the mortgagee would indicate that
there was a telltale evidence to suggest that the
mortgagee was the owner post ending of the five
year period stipulated in the mortgage deed.
The suit of the year 2010 was clearly time barred
and the defendant no.1 having acquired
possession even by the principle of adverse
possession and the conduct of the defendants to
withdrew the RTS proceedings and the first suit
would have to be issues which need to be gone
into without shortcut under Order VII Rule XI.
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3.8 Inviting our attention to the contents of the
present suit and the prayers therein, Mr.Parikh
would submit that apart from the prayers based
on the mortgage deed, the prayers also were for
specific performance and cancellation of the
release deed which according to the appellant-
plaintiff was collusive. The prayer of specific
performance could have been decreed under the
discretion given to the Court under Section 19 of
the Specific Relief Act. He would submit that the
suit was not only based on the mortgage deed
and the Trial Court in passing the impugned
order has misconstrued the entire issue of
holding that the deed was a deed by mortgage by
conditional sale. That was only one of the issue.
There was a complete wrong appreciation of the
purported suit. The interpretation and nature of
the mortgage deed could not have been done
because it involves merit which could be decided
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only at the stage of trial.
3.9 Relying on the provisions of Section 41 of
the Transfer of Property Act, Mr.Parikh would
submit that, it was a transfer of property by an
ostensible owner since the mortgagee was in
possession and therefore an ostensible owner.
3.10 Relying on the provisions of Article 61(a) of
the Limitation Act, Mr.Parikh would submit that
the mortgage deed was of the year 1943 and the
subsequent suit filed in the year 2010 for
redemption was too late in the day as the suit
was time barred.
3.11 Mr.Parikh would rely on the following
decisions:
(I) In case of Shirpur Power Private Limited
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v. State Bank of India reported in 2020 (3)
GLR 2266 to submit that as held in the aforesaid
decision, interpretation of documents is a mixed
question of fact and law.
(II) In case of Krishnakant Manuprasad
Trivedi v. Urvashiben W/o Chaitaniyabhai
Chandulal Patel reported in 2018 (0) JX(Guj)
313 to submit that though a plaint may be
cleverly drafted, it cannot be dismissed under
Order VII Rule XI if the plaint has averments
which can be established during the trial.
(III) In case of Mohd Ali Saraf Ali v. Jasabhai
Lakhabhai Bharwad reported in 2018 (0) JX
(Guj) 295 to submit that when the suit has
multiple prayers as was the case on hand, there
cannot be a part rejection of the plaint.
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4. Mr.Mihir Joshi learned Senior Advocate
appearing with Mr.Amit Thakkar learned
advocate for respondent nos.3.1 to 3.5 would
make the following submissions:
4.1 Mr.Joshi would submit that the learned
Senior Advocate for the appellant has gone much
beyond the case pleaded in the plaint. He would
take us through the plaint and submit that the
plaintiff sought specific performance of the
agreement to sell dated 25.06.2017. The
principal prayer therefore was for specific
performance. The other prayers being
consequential directly be dependent on the
principal prayer.
4.2 Mr.Joshi would submit that while deciding
an application under Order VII Rule XI, only
plaint has to be seen. He would take us through
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the contention raised in the plaint and submit
that on the scrutiny thereof, it was apparent that
it did not disclose a cause of action. Applying
therefore the statutory provisions, the Trial
Court committed no error in rejecting the plaint.
4.3 Mr.Joshi would further submit that reading
the entire plaint would indicate that it was the
case of the defendant no.1 that he was the sole
and independent owner on account of the fact
that he had acquired the suit land as a legal heir
in lieu of a mortgage by conditional sale dated
27.04.1943. The case of the plaintiff therefore
was that he was an ostensible owner by virtue of
the mortgage by conditional sale. He would
submit that the submission of the learned
counsel for the appellant based on Section 41 of
the Transfer of Property Act was misconceived.
The reading of the plaint and the cause of action
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based on a misconstruction of a document did
not make him an owner as averred in para 11 of
the plaint and on the plain reading of the
document, it was evident that there was no
automatic sale so as to make the plaintiff an
owner.
4.4 Mr.Joshi learned Senior Advocate would
submit that reading the provisions of Section
58(c) of the Transfer of Property Act, makes it
clear that the ingredients of conditional sale
were not satisfied. There was no ostensible sale
which was apparent on reading the mortgage
deed of 1943. Mr.Joshi would read the relevant
portions of the deed and submit that it was
beyond doubt a usufructuary mortgage as
defined under Section 58(d) of the Transfer of
Property Act. Reading the provisions of Section
60 of the Transfer of Property Act, Mr.Joshi
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would submit that a right to redeem a mortgage
is available to a mortgagor at any time and such
a right can only be extinguished by act of parties
or by decree of Court. The Right to Redemption
therefore in a given case can be foreclose by
executing a registered instrument which was not
the case. The argument of the learned counsel
for the appellant therefore that the defendant
no.1 was the owner either by virtue of the
proceedings under the Inami Act and the
Tenancy Law and/or by adverse possession or by
expiry of period of limitation are misconceived.
The contention that the period of five years
having come to an end would foreclose the right
was therefore misconceived. The foundation of
the plaint for specific performance in the plaint
on the basis that the defendant was the owner of
the property was misconceived.
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4.5 On the contention of the learned counsel for
the appellant that the issue of interpretation of
the documents was a triable issue is
misconceived as under the provisions of Section
91 of the Evidence Act, the document itself
proves its character and no other evidence is
required except the document itself, Mr.Joshi
would take us through the contents of the order
impugned and submit that the Trial Court
committed no error in determining the type of
mortgage as on a plain reading of the mortgage
deed it clearly revealed that the deed was not
one of mortgage by conditional sale by
usufructuary mortgage. A plain reading of the
plaint along with the documents produced along
with it indicated that the mortgagors were
owners of the land and the facts stated in the
plaint itself so made it evident. In support of his
submissions, Mr.Joshi would rely on the following
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decisions:
(I) In case of Narandas Karsondas v. S.A.
Kamtam and another reported in (1977) 3
SCC 247, in support of his submission that the
mortgagor has a right to redeem which will
survive until there has been a completion of sale
by a registered document.
(II) In case of Achaldas Durgaji Oswal (DEAD)
THROUGH LRS. v. Ramvilas Gangabisan Heda
(DEAD) THROUGH LRS. And others reported in
(2003) 3 SCC 614 in support of his submission
that the right of redemption of a mortgagor is a
statutory right which can only be taken away in
terms of the proviso appended to Section 60 of
the Transfer of Property Act which is
extinguished either by a decree or by act of
parties viz. by a registered document of sale.
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(III) In case of Maharaj Shri Manvendrasinhji
Jadeja v. Rajmata Vijaykunverba Wd/o Late
Maharaja Mahendrasinhji reported in 1999
(1) GLR 261 in support of his submission that
the provisions of Order VII Rule XI(a) is
mandatory in nature and Courts are under
obligation to reject plaint which does not disclose
a real cause of action. Considering scope of
Order VII Rule XI(a), the Court held that the
Courts have to decide with reference to the
averments made in the plaint and clever drafting
creating illusions of cause of action are not
permitted in law as clear right to sue has to be
demonstrated in the plaint.
(IV) In case of Dahiben v. Arvindbhai Kalyanji
Bhanusali (Gajra) (DEAD) THROUGH LEGAL
REPRESENTATIVES And others in support of his
submission that a plaintiff by clever drafting
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attempted to make out a illusory cause of action.
Reliance was placed on a decision in case of in
the case of T. Arivandandam v. T.V.Satyapal
& Ors. reported in 1977 (4) SCC 467 to submit
that interpretation of a nature of document is a
question of law. In support of this submission
reliance was also placed on the decision in case
of ITC Limited v. DRAT reported in 1998 (2)
SC 70.
5. Mr.Devan Parikh in the rejoinder would submit
that it was a case of claiming title under adverse
possession. He would rely on a decision in case
of Karupaathal and others v. Muthusami
reported in 2013 SCC OnLine Mad 2163 and
submit that in a case where a time limit is fixed
on the expiry of limitation of 30 years, the right
to extinguishment shall expire. He also relied on
a decision in case of Singh Ram (D) Through
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L.R.S. v. Sheo Ram & Ors. reported in 2014
(9) SCC 185, wherein answering the issue the
Court held that a usufructuary mortgagee is not
entitled to file a suit for declaration that he had
become owner merely on expiry of 30 years from
the date of the mortgage. Mr.Joshi therefore
prayed to dismiss the appeal.
ANALYSIS
6. Having considered the submissions made by the
learned counsels for the respective parties, the
issue for consideration before us is, whether the
Trial Court was right in entertaining an
application under Order VII Rule XII and
dismissing the plaint at threshold on the ground
that it did not disclose a cause of action and
whether the Trial Court was right in its
perception that on reading of the plaint and
without adding and/or subtracting anything, the
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documents produced and relied upon by the
plaintiff itself suggested that the deed in
question was a deed of usufructuary mortgage.
According to the Trial Court, once that was
established, the defendant no.1 being mortgagee
had no right or ownership over the suit land.
6.1 Reading of the plaint would indicate that it
was the case of the appellant-plaintiff that the
land in question was of the sole and absolute
ownership of the defendant no.1. That, it was so
confirmed by the defendant No.1 during the
negotiations. Accordingly, a final sale deed was
entered into for a sale consideration of Rs.36
lakhs of which Rs.20 lakhs was already paid
through cheques. The sale deed could not be
executed as the defendant no.3/4, legal heir of
the mortgagor filed written objections on
13.06.2017 as being the land owner. Based on
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this objection, the defendant No.1 executed an
agreement to sell dated 25.06.2017. That the
defendant no.1 was the sole and independent
owner of the land and was holding possession
based on an averment which was the foundation
of the plaint in para 11 of the plaint. Paras 11 to
17 read as under:
"11. It is pertinent to mention that the terms
of the said Banakhat are very clear and
discloses the fact that the Defendant No.1
had acquired the Suit land as a legal heir
through his mother namely Late Nathiben
wife of Kalidas Gopaldas Parekh. It is also
stated that the Suit land was acquired by
the mother of the Defendant No.1 from the
Late Ranaji Bhaluji Thakore in lieu of a
Mortgage by Conditional Sale Deed dated
27.04.1943 and one of the conditions
enumerated therein is that in the event, the
mortgagor fails to pay the debt of Rs.475/-
within a period of five years, then the
mortgagee shall be entitled to get, the
ownership of the mortgaged land. The said
Mortgage by Conditional Sale Deed dated
27.04.1943 which is in Gujarati, is
reproduced herein below for ready
reference of this Hon'ble Court:
Mortgage Deed of Rs.475/- for
the Farm at Moje: Zundal
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The Party of the Second Part - Bai Nathi
Raat w/o Kalidas Luhar, Age about - 28 years,
Residing at -_________, Moje Zundal.
The Party of the First Part - Thakor Ranaji
Bhaluji, Age about - 45 years, Caste -
Thakarda, Occupation - Agricultre, Residing at
- the said farm under our ownership and
possession, which is located in the outskirt of
Moje: Zundal, District, Sub-district -
Ahmedabad and is under our possession from
the beginning till this date. Details of its
boundaries are as below.
Surve Acre Assess ..... ..... East West North South
y No. Gunth ment
a
483 2-22 9-0-03 ..... With Manekl ...... Small Barhma
Jujub al Rivulet r
8-4-0 e tree Chunilal Kaaram
0-12-0
We have mortgaged our farm with the
aforesaid boundaries along with its trees, grass,
hedge etc. with its original boundaries for
Rs.475/- (Four Hundred Seventy Five only)
received in cash without the interest and rent
on the farm given in your possession for the
term of 5 years. On completion of the said term,
if we pay the mortgage amount, we will be
released from the mortgage, and if we do not
pay the same, you can recover it from the said
farm, from us or from any other property, thus,
we will not raise any objection if you sow or get
sown, cultivate or get cultivated or sub-
mortgage it to anyone. We enter your name into
the government record for the said farm, the
government tax should be paid by you
henceforth, the Taccavi loan has not been taken
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on this farm, further, there is no debt or right
of any person on this farm. In this regard, I
execute this mortgage deed willingly and with
wisdom. Samvat 1999, Chaitra Vad - 7,
Tuesday, 27 April, 1943. Das Shantilal Motilal
Bhau, Shahpur, Ahmedabad, Mangal Parghi No
Khancho.
Signature Witness
Thakor Ranaji Bhaluji RaatNathibai
Lallubhai
Res. of Zundal.
*For the benefit of this order the above
paragraph is translated into English.
The photocopy and the typed copy of the
said Mortgage by Conditional Sale Deed
dated 27.04.1943 are produced herewith by
a separate list at Item No. 5 colly. The
photocopy of the Banakhat dated
25.06.2017 executed by and between the
plaintiff and the Defendant No.1 is produced
herewith by way of separate list of
document as Item No. 6. The Plaintiff craves
the leave to refer to and rely upon the
contents of the said Banakhat dated
25.06.2017 as and when the need be, in the
interest of justice.
12. The Plaintiff further states that
thereafter the Plaintiff was enquiring with
the Defendant No.1 about the date to
execute the Sale Deed but the Defendant
No.1, under one pretext or the other, was
avoiding to execute the Sale Deed. During
the pendency, the Plaintiff, through his
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sources, had enquired about the status-title
of the Suit land in the concerned Revenue
Office at Gandhinagar. During the search, it
was found that Ghanshyamji Chamanji
(Defendant No.3/4), the legal heir of the
prior owner, had filed some revenue
litigation with the concerned Revenue
Officer being RTS Appeal Case 210 of 2017.
During the search in the Revenue
Department, and having obtained the
certified copy of Village Form No.6, it was
found that the Entry No.8454 and 8456 both
dated 13.07.2017 with regards to the suit
land. The Plaintiff craves the leave to
produce on record the photocopy of RTS
Appeal-Case No.210/2017 and the Entry
Nos. 8454 and 8456 by way of separate list
respectively. Thereafter, the Plaintiff has
also learnt from the sources that the said
RTS Appeal No. 210/2017 (Entry No.8521
dated 12.09.2017) had been withdrawn by
the Defendant No.3/4 being the original
Applicant in the said RTS proceeding. The
photocopy of the application for the
withdrawal of the RTS Appeal No. 210 of
2017 is produced by a separate list at Item
No. 10.
13. The Plaintiff further submits that during
the course of an enquiry, it was found that
the Defendant No.1 had executed some
documents in favour of the Defendant No.2
to Defendant No.3/5, the legal heirs of the
prior owner. Having made the search with
concerned Revenue Office, it was found that
the Entry No. 8525 (Kachi) dated
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16.09.2017 came to be recorded on the
basis of Giro Mukti (of Suit land) as per
revenue record whereby the mortgage of
late Ranaji Bhaluji Thakore was got released
by the Defendant No.1 being the son of Late
Nathiben widow of Kalidas Gopaldas
Parekh, to which the Plaintiff has also filed
its Objection dated 12.10.2017 in respect to
the said Entry No. 8525 pending before the
Mamlatdar Shree, at Gandhinagar for its
necessary adjudication. The photocopy of
Entry No. 8525 and the objection dated
12.10.2017 filed by the Plaintiff in respect of
Suit land are produced herewith by way of
separate list of documents as Item No.11
and 12. deed
14. The Plaintiff further states that the
Plaintiff thereafter had made a preliminary
enquiry with the Sub-Registrar's Office, at
Gandhinagar and it was found that a
Release Deed dated 13/09.2017 (hereinafter
referred to as alleged Release Deed) for the
Suit land was executed by the Defendant
No.1 in favour of the Defendant No.2 to
Defendant No.3/5 in hand in gloves to cheat
the Plaintiff. It was found that the Defendant
No.3/4 has paid an amount of Rs.
21,00,000/- to the Defendant No.1 (as per
paragraph no.6 of release deed) whereby
the Defendant No.1 had released all his
rights from the Suit land. The Plaintiff begs
to produce on record of this Hon'ble Court
the certified copy along with the photocopy
of the alleged Release Deed dated
13.09.2017 by way of separate list of
document as Item No.13 (Colly).
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15. The Plaintiff submits the alleged release
deed is null and void-ab-initio in the eye of
law. Further, in view of the above referred
Mortgage by Conditional Sale Deed dated
27.04.1943 and also in respect of said
Banakhat dated 25.06.2017 executed by and
between the Defendant No.1 and the
Plaintiff, the Defendant No.1 has
fraudulently, to deprive the legal rights and
to defraud the Plaintiff has executed the
alleged Release Deed in favour of the other
Defendants. It is stated that the Defendant
No.1 has failed to perform his part of
obligation and has clandestinely executed
alleged Release Deed in favour of the
Defendant No.2 to 3/5. In view of the said
Mortgage by Conditional Sale Deed and
Banakhat, the Defendant No.1 is under the
legal obligation to execute the Sale Deed in
favour of the Plaintiff, for which the Plaintiff
is ready and willing to perform his part of
contract and is ready and willing to pay the
remaining amount of Rs. 16,00,000/- at the
time of execution of the Sale Deed to the
Defendant No. 1 and is also ready to deposit
the remaining amount of Rs. 16,00,000/- in
this Hon'ble Court.
16. The Plaintiff state and submits that the
present Defendant No.2, 3/1 & 3/4 have filed
suit before the Hon'ble Principal Senior Civil
Judge Court (S.D.) at Gandhinagar bearing
of 2010) against the present Defendant No.1
for declaration and injunction valued at
Rs.600/- seeking various reliefs for suit land
which is pending till date for its necessary
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adjudication. The photocopy of the RCS 146
of 2010 proceeding is produced herewith by
way of separate list of document at Item No.
17. The Plaintiff further submits that after
filing of the above RCS 146 of 2010 by and
between the Defendant No.2, 3/1 and 3/4
against the present Defendant No.1., the
present Defendant No.1 had filed suit before
the Hon'ble Principal Senior Civil Judge
Court (S.D.) at Gandhinagar bearing
of 2010) against the present Defendant
No.3/1 and 3/4 for declaration and
permanent injunction, seeking various
reliefs for property lying and being at Moje:
(present Suit land), 359/2, 359/5 & 359/8.
During the ongoing proceeding in the said
RCS 171 of 2010, the present Defendant No.
I had filed a Pursis dated 23.08.2011 not
pressing all his prayers against the present
Defendant No.3/1 and 3/4 in regards to the
other survey number property except the
Suit land and subsequently the said suit
came to be dismissed for default for want of
prosecution on 31.08.2016. The photocopy
of the RCS 171 of 2010 proceeding is
produced herewith by way of separate list of
document at Item No. 15."
6.2 Reading of the aforesaid averments from the
plaint would indicate that (i) it is the case of the
plaintiff that a registered mortgage deed dated
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27.04.1943 was executed by predecessors of the
defendant nos.3/1 to 3/5 in favour of the
plaintiff's mother Nathiben Kalidas. (ii) The
defendants viz. the heirs of the mortgagor filed a
Regular Civil Suit No.146 of 2010 against the
mortgagee defendant no.1 for declaration and
redemption of mortgage. (iii) The mortgagee -
defendant no.1 filed Regular Civil Suit No.171 of
2010 against the mortgagors-defendant no.3.1 to
3.4 for declaration and injunction. That suit was
dismissed for default. (iv) Oral agreement was
made between the plaintiff and the defendant
no.1 for purchase of the property in September
2016. (v) Written objections were filed on
13.06.2017 by defendant no.3.4 before the sub-
registrar objecting to the registration for the sell
deed. Despite this, an agreement to sale was
executed by the plaintiff on 25.06.2017. (vi)
Reading of the mortgage deed which is produced
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in the plaint would indicate that it was not a case
where an automatic sale was contemplated. The
deed only gave a right to recover the amount. In
case of the failure to repay the amount after
completion of the mortgage period.
6.3 The true translation of the mortgage deed
reads as under:
Mortgage Deed of Rs.475/- for
the Farm at Moje: Zundal
The Party of the Second Part - Bai Nathi
Raat w/o Kalidas Luhar, Age about - 28 years,
Residing at -_________, Moje Zundal.
The Party of the First Part - Thakor Ranaji
Bhaluji, Age about - 45 years, Caste -
Thakarda, Occupation - Agricultre, Residing at
- the said farm under our ownership and
possession, which is located in the outskirt of
Moje: Zundal, District, Sub-district -
Ahmedabad and is under our possession from
the beginning till this date. Details of its
boundaries are as below.
Surve Acre Assess ..... ..... East West North South
y No. Gunth ment
a
483 2-22 9-0-03 ..... With Manekl ...... Small Barhma
Jujub al Rivulet r
8-4-0 e tree Chunilal Kaaram
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0-12-0
We have mortgaged our farm with the
aforesaid boundaries along with its trees, grass,
hedge etc. with its original boundaries for
Rs.475/- (Four Hundred Seventy Five only)
received in cash without the interest and rent
on the farm given in your possession for the
term of 5 years. On completion of the said term,
if we pay the mortgage amount, we will be
released from the mortgage, and if we do not
pay the same, you can recover it from the said
farm, from us or from any other property, thus,
we will not raise any objection if you sow or get
sown, cultivate or get cultivated or sub-
mortgage it to anyone. We enter your name into
the government record for the said farm, the
government tax should be paid by you
henceforth, the Taccavi loan has not been taken
on this farm, further, there is no debt or right
of any person on this farm. In this regard, I
execute this mortgage deed willingly and with
wisdom. Samvat 1999, Chaitra Vad - 7,
Tuesday, 27 April, 1943. Das Shantilal Motilal
Bhau, Shahpur, Ahmedabad, Mangal Parghi No
Khancho.
Signature Witness
Thakor Ranaji Bhaluji RaatNathibai
Lallubhai
Res. of Zundal."
6.4 Essentially therefore, on reading of the
plaint, as it stands, indicates that it was the case
of the plaintiff that the mortgage deed dated
27.04.1943 revealed an automatic sale. That
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therefore it was a mortgage by a conditional sale.
Added support for the plaintiff on his reading of
the deed was that on the expiry of a period of five
years the mortgagee became the owner of the
property. This, in the perception of the plaintiff,
gave the defendant no.1 the right to sell the land
in question to the plaintiff and therefore a legal
right to him to seek specific performance of the
agreement. Essentially therefore, if the plaint
and the reliefs sought for are perused, apart
from a declaration sought in the suit to grant
permanent injunction restraining the defendant
nos.2 to 3/1 to 3/5 from making any construction
on the land or selling the land, a relief was
sought to declare the alleged release deed dated
13.09.2017 by the defendant no.1 in the favour of
defendant nos.2 to 3/1 to 3/5 as illegal and a
decree of specific performance of Banakhat
dated 25.06.2017 was pressed.
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6.5 All these reliefs would revolve around the
interpretation of mortgage deed dated
27.04.1943.
6.6 Coming to the submissions of learned
counsel for the respective parties on whether the
Trial Court was right in its perception in
rejecting the plaint at the threshold based on
holding whether the document was a document
of mortgage by conditional sale or a usufructuary
mortgage, the submission of the learned counsel
of the appellant that the interpretation of a
document is a mixed question of law and facts
relying on the decision in case of Shirpur
(supra), is misconceived. The decision in case of
Shirpur (supra) was on the question whether
there was any privity of contract between the
banks and the borrower. So the question was
whether a preliminary issue could be decided, it
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was a case where since the personal guarantees
are executed between the borrowers and
trustees and not in favour of the bank, the
question of locus-standi of the banks to file such
an application was under consideration. It was in
these set of facts that the contents of the
documents had to be looked into for
ascertainment of facts and then determine the
rights of the parties and therefore it was held to
be a mixed question of law and facts.
6.7 Perusal of the order of the Trial Court
impugned before us, when read in context of the
provisions of Sections 58(c) and 58(d) of the
Transfer of Property Act, indicate that it is
apparent on the plain reading of the document
that it was a transaction of usufructuary
mortgage. In other words therefore, in light of
the decision in the case of Maharaj Shri
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Manvendrasinhji Jadeja (supra) where the
issue was whether succession was governed by
any rule or primogeniture, this Court opined that
to find out whether a plaint discloses a cause of
action or not can be looked into based on the
averments made in the plaint. When a plaint is
based on a document filed in it, the Court can
consider whether based on such document the
plaint discloses any cause of action and on such
document being fully and meaningfully
scrutinized if the Trial Court finds based on
statutory provisions that the suit does not
disclose a cause of action, Order VII Rule XI can
be resorted to. Paras 19 and 20 of the decision
read as under:
"19. The learned Judge, after considering
the provisions of the Constitution of India,
the Hindu Succession Act, 1956 and the law
declared by the Supreme Court, has come to
the conclusion that rule of primogeniture, as
pleaded by the appellant in the plaint,
stands abrogated and therefore the plaint is
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liable to be rejected, as it does not disclose
any cause of action. Though in the reply to
Exh.191, which was filed under the
provisions of Order 7, R.11(a) of the CPC by
the respondent, the appellant had pleaded
that rule of primogeniture is applicable and
though in the memorandum of first appeal,
it is asserted that the learned Judge has
committed an error in holding that rule of
primogeniture came to an end in view of the
provisions of Section 5(ii) of the Hindu
Succession Act, no attempt was made on
behalf of the appellant to submit before us
that rule of primogeniture has not ceased to
apply to the facts of the present case. The
plea was not raised, on the ground that
deciding the said question amounts to going
into the merits of the case which is not
permissible while hearing an application
submitted under Order 7, R.11(a) of the
CPC.
20. In our view, considering the question
whether rule of primogeniture has ceased to
apply or not cannot be termed as going into
the merits of the case at all. On careful
scrutiny of the plaint, it becomes evident
that the whole case of the appellant in the
plaint is based on the footing that deceased
Mayurdhvajsinhji having expired intestate,
the appellant is entitled to inherit all the
properties left by him under the rule of
primogeniture. Therefore, in order to find
out whether the plaint discloses a cause of
action or not, it becomes relevant to
consider whether the rule of primogeniture
still subsists or not. In fact, rule of
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primogeniture is the sole and entire basis of
the plaint and therefore if the Court
addresses itself to the question whether the
said rule of primogeniture subsists or not, it
cannot be said that the Court is deciding the
matter on merits. As observed earlier, while
deciding application filed under Order 7,
R.11(a) of the CPC, the Court has to apply
the statutory law as well as case-law to the
facts pleaded in the plaint and find out
whether any cause of action is disclosed or
not. If such an attempt is made, it can
hardly be said that merits of the case are
taken into consideration while deciding
application for rejection of the plaint as not
disclosing any cause of action."
6.8 Reading the ingredients of Sections 58(c)
and 41 of the Transfer of Property Act, what is
evident is that a mortgage deed which is to
satisfy the test of being (I) as a mortgage by
conditional sale, there has to be an ostensible
sale in the document. Reading of the document
would indicate that it nowhere reveals automatic
sale nor does it suggest that the defendant no.1
become an owner after a period of five years. On
a clear and an unambiguous reading of the
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document it was clear that the mortgage deed
only indicated that in case of a failure to pay the
debt after five years, the mortgagee will have a
right to recover the amount. In light of the terms
of the documents being evidently clear, there
was no need for the parties to lead evidence.
The plaint itself based on the nature of the
document and on the law that can be applied to
it would obviously make the suit frivolous and as
held by the Supreme Court in the case of T.
Arivandandam (supra) in para 5 as under:
"5. We have not the slightest hesitation in
condemning the petitioner for the gross
abuse of the process of the court repeatedly
and unrepentantly resorted to. From the
statement of the facts found in the judgment
of the High Court, it is perfectly plain that
the suit now, pending before the First
Munsif's Court, Bangalore, is a flagrant
misuse of the mercies of the law in receiving
plaints. The learned Munsif must remember
that if on a meaningful-not formal-reading of
the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a
clear right to sue, be should exercise his
power under Or. VII r. 1 1 C.P.C. taking care
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to see that the ground mentioned therein is
fulfilled. And, if clever, drafting has created
the illusion of a cause of action, nip it in the
bud at the first hearing by examining the
party searchingly under Order X C.P.C. An
activist Judge is the answer to irresponsible
law suits. The trial court should insist
imperatively on examining the party at the
first bearing so that bogus litigation can be
shot down at the earliest stage. The Penal
Code (Ch. XI) is also resourceful enough to
meet such men, and must be triggered
against them. In this case, the learned Judge
to his cost realised what George Bernard
Shaw remarked on the assassination of
Mahatma Gandhi:
"It is dangerous to be too good."
6.9 In case of ITC Limited (supra), the Court
held as under:
"16. The question is whether a real cause of
action has been set out in the plaint or
something purely illusory has been stated
with a view to get out of Order 7 Rule 11
C.P.C. Clever drafting creating illusions of
cause of action are not permitted in law and
a clear right to sue should be shown in the
plaint. (See T. Arivandandam vs. T.V.
Satyapal.)
...
25. Learned counsel for the respondent
Bank contended that the case before us
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which is concerned with an application
under Order 7 Rule 11(a) CPC for rejecting
a plaint on the basis of "absence of cause of
action from a reading of the plaint" was
identical with the Sztejn case and hence
what Megarry, J. stated Discount Records
Ltd. directly applies.
26. It is true, we are also dealing with a
question whether the plaint disclosed a
cause of action. But here the allegation in
the plaint is only one relating to absence of
movement of goods by the seller. As pointed
in the decided cases and in particular in the
U.P. Cooperative Federation Case and other
cases decided by this Court and also Courts
elsewhere, mere absence of movement has
never been, in this branch of law, treated as
amounting to fraud, Such non- movement,
even if the allegation is to be treated as
true, could be for goods reasons or for
reasons which were not good. But that is not
'fraud'. In Sztejn (See law relating to
commercial credit by A.G. Davis (2nd Ed,
1954) (p160-61 for facts of this case) the
position was different. There the complaint
was that the sellers who were to ship
complaint was that the sellers who were to
ship 'bristles' deliberately placed 50 cases of
material on board a steamship, procured a
bill of loading from a steamship company
and obtained customary invoices. The
documents described the goods as bristles
as per the letter of credit. In fact, the Indian
sellers had filled the 50 crates with
'Cowhair' and other worthless material and
rubbish with intent to simulate genuine
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merchandise and so 'defraud' the plaintiff,
the buyers - who has instructed the
defendants to issue the letter of credit. The
sellers then drew a draft under the letter of
credit to the order of the Chartered bank of
India, Australia and China and delivered the
draft and the 'fraudulent documents' to the
chartered Bank at Cawnpore for collection
on account of the sellers. The buyer brought
the action which succeeded, to restrain the
defendants from paying the draft. The
Learned Judge said (p.634):
"It must be assumed that the seller has
intentionally failed to ship any gods
ordered by the buyer. In such a situation,
where the seller's fraud has been called
to the bank's attention before the draft
and documents have been presented for
payment, the principle of the
independence of the bank's obligation
under the letter of credit should not be
extended to protect the unscrupulous
seller. It is true that even though the
documents are forged or fraudulent, if
the issuing bank has already paid the
draft before receiving notice of the
seller's fraud, it will be protected if it
exercised reasonable diligence before
making such payment. However, in the
instant action Schroder had received
notice of Transea's active fraud before it
accepted or paid the draft. The
Chartered Bank, which stands in no
better position than Transea, should not
be heard to complain because Schroder
is not forced to pay the draft
accompanied by documents covering a
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transaction which it has reasons to
believe is fraudulent"
It will be noticed that Sztejn was a case
where 'fraudulent documents' were
presented which simulated shipping of
goods which were not only not shipped but
on the other hand the seller shipped some
rubbish deliberately. Therefore the
allegations in the complaint filed by the
buyers in that case were based upon the
above facts - which as per the legal position
in this branch of law - i.e. presentation of
'fraudulent document's where goods were
deliberately not shipped and an attempt was
made to pass off 'rubbish' as the goods
ordered for - amounted to 'fraud'.
27. As stated above non-movement of
goods by the seller could be due to a variety
of tenable or untenable reasons, the seller
may be in breach of the contract but that by
itself does not permit a plaintiff to use the
word ''fraud'' in the plaint and get over any
objections that may be raised by way of
filing an application under Order 7 Rule 11
CPC. As pointed out by Krishna Iyer,J. In
T.Arivandandam's case, the ritual of
repeating a word or creation of an illusion in
the plaint can certainly be unravelled and
exposed by the Court while dealing with an
application under Order 7 Rule 11(a).
Inasmuch as the mere allegation of drawal
of monies without movement of goods does
not amount to a cause of action based on
'fraud', the Bank cannot take shelter under
the words 'fraud' or 'misrepresentation'
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used in the plaint."
6.10 The above would suggest that the plaint
really pointed out that the cause of action that
was set out in the plaint was purely illusory. The
document not being one of the conditional sale
but being a usufructuary mortgage would render
the averments in the plaint with regard to the
right and title and the ownership of the
defendant no.1 being illusory as no ownership
vested in the defendant no.1-mortgagee.
Consequentially therefore, when the owner had
no right to sell, the appellant-plaintiff had no
right to a specific performance and admittedly
therefore, the contention raised by the learned
counsel for the appellant relying on section 19(c)
of the Specific Relief Act would also be of no
avail.
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6.11 That brings us to decide on the issue of right
to redemption in context of the prayer made in
the plaint that the release deed dated 13.09.2017
was clearly barred against the defendant no.1
mortgagor since he had no right of redemption.
According to the submission of the learned
counsel for the appellant relying on the
provisions of Articles 61(a) of the Limitation Act,
1963, it was submitted that since there was no
right exercised by the mortgagee within five
years from the year 1943, by virtue of adverse
possession, the mortgagee became absolute
owner of the property. It was submitted by the
learned counsel for the appellant that the right to
redeem had been extinguished after a period of
five years based on the condition of the deed.
6.12 We would therefore consider this argument
in light of Section 60 of the Transfer of Property
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Act which deals with the right of the mortgagor
to redeem. Section 60 reads as under:
"60. Right of mortgagor to redeem.--At
any time after the principal money has
become due, the mortgagor has a right, on
payment or tender, at a proper time and
place, of the mortgage-money, to require the
mortgagee (a) to deliver to the mortgagor
the mortgage-deed and all documents
relating to the mortgaged property which
are in the possession or power of the
mortgagee, (b) where the mortgagee is in
possession of the mortgaged property, to
deliver possession thereof to the mortgagor,
and (c) at the cost of the mortgagor either to
re-transfer the mortgaged property to him
or to such third person as he may direct, or
to execute and (where the mortgage has
been effected by a registered instrument) to
have registered an acknowledgement in
writing that any right in derogation of his
interest transferred to the mortgagee has
been extinguished:Provided that the right
conferred by this section has not been
extinguished by act of the parties or by
decree of a Court. The right conferred by
this section is called a right to redeem and a
suit to enforce it is called a suit for
redemption. Nothing in this section shall be
deemed to render invalid any provision to
the effect that, if the time fixed for payment
of the principal money has been allowed to
pass or no such time has been fixed, the
mortgagee shall be entitled to reasonable
notice before payment or tender of such
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money.
Redemption of portion of mortgaged
property.--Nothing in this section shall
entitle a person interested in a share only of
the mortgaged property to redeem his own
share only, on payment of a proportionate
part of the amount remaining due on the
mortgage, except only where a mortgagee,
or, if there are more mortgagees than one,
all such mortgagees, has or have acquired,
in whole or in part, the share of a
mortgagor.
6.13 Reading of the Section would indicate that
the mortgagor has a right to redeem at any time
provided his right is so extinguished by act of
parties. The act of parties means that the parties
have to foreclose such a right of redemption by
execution of a registered document. We agree to
the submission of learned Senior Advocate
Mr.Mihir Joshi to the principle that "Once a
mortgage always a mortgage" and the right to
redemption would subsists as long as the
mortgage subsists. It will be in the fitness of
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things to reproduce paras 34 to 38 of Narandas
Karsondas (supra) which read as under:
"34. The right of redemption which is
embodied in section 60 of the Transfer of
Property Act is available to the Mortgagor
unless it has been extinguished by the Act of
parties. The combined effect of section 54 of
the Transfer of Property Act and section 17
of the Indian Registration Act is that a
contract for sale in respect of immovable
property of the value of more than one
hundred rupees without registration cannot
extinguish the equity of redemption. In India
it is only on execution of the conveyance and
registration of transfer of the mortgagor's
interest by registered instrument that the
mortgagor's right of redemption will be
extinguished. The conferment of power to
sell without intervention of the Court in a
Mortgage Deed by itself will not deprive the
mortgagor of his right to redemption. The
extinction of the right of redemption has to
be subsequent to the deed conferring such
power. The right of redemption is not
extinguished at the expiry of the period. The
equity of redemption is not extinguished by
mere contract for sale.
35. The mortgagor's right to redeem will
survive until there has been completion of
sale by the mortagee by a registered deed.
In England a sale of property takes place by
agreement but it is not so in our country.
The power to sell shall not be exercised
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unless and until notice in writing requiring
payment of the principal money has been
served on the mortgagor. Further section
69(3) of the Transfer of Property Act shows
that when a sale has been made in professed
exercise of such a power, the title of the
purchaser shall not be impeachable on the
ground that no case had arisen to authorise
the sale. Therefore, until the sale is
complete by registration the mortgagor does
not lose right of redemption.
36. It is erroneous to suggest that the
mortgagee is acting as the agent of the
mortgagor in selling the property. The
mortgagor exercises his right under a
different claim. The mortgagee's right is-
different from, (1) [1967] 1 S.C.R. 293. the
mortgagor's. The mortgagee exercises his
right under a totally superior claim which is
not under the mortgagor, but against him.
In other words, the sale is against the
mortgagor's wishes. Rights and interests of
the mortgagor and the mortgagee in regard
to sale are conflicting.
37. In view of the fact that only on
execution of conveyance, ownership passes
from one party to another it cannot be held
that the mortgagor lost the right of
redemption just because the property was
put to auction. The mortgagor has a right to
redeem unless the sale of the property was
complete by registration in accordance with
the provisions of the Registration Act.
38. The decision in Abraham Ezra Issac
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Mansoor v. Abdul Latiff Usman(1) is correct
law that the right to redeem a mortgage
given to a mortgagor under section 60 of the
Transfer of Property Act, is not extinguished
by a contract of sale of the mortgaged
property entered into by a mortgagee in
exercise of the power of sale given to him
under the mortgage deed. Until the. sale is
completed by a registered instrument, the
mortgagor can redeem the mortgage on
payment of the requisite amount."
6.14 It will also be in the fitness of things to
reproduce paras 12, 15 and 22 of Achaldas
Durgaji Oswal (supra) which read as under:
"12. A right of redemption, thus, was
statutorily recognized as a right of a
mortgagor as an incident of mortgage which
subsists so long as the mortgage itself
subsists. The proviso appended to Section
60, as noticed hereinbefore, however,
confines that said right so long as the same
is not extinguished by act of the parties or
by decree of court.
...
...
15. In 'Fisher and Lightwood's Law of
Mortgage', the nature of the right of
redemption is stated thus:-
"The rights of redemption. The right to
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redeem a mortgage was formerly
conferred on the mortgagor by a proviso
or condition in the mortgage to the effect
that, if the mortgagor or his
representative should pay to the
mortgagee the principal sum, with
interest at the rate fixed, on a certain
day, the mortgagee, or the person in
whom the estate was vested, would, at
the cost of the person redeeming,
reconvey to him or as should direct (a).
This is still the practice in the case of a
mortgage effected by an assignment of
the mortgagor's interest (b). A proviso
for reconveyance was no longer
appropriate after 1925 for a legal
mortgage of land (which has to be made
by demise (c)), and it is not necessary to
have a proviso for surrender of the term
in such a mortgage, since the term
ceases on repayment (d). Nevertheless,
in order to define the rights to the
mortgagor and the mortgagee, a proviso
is inserted expressly stating that the
term will ceased the date fixed (e).
It has been seen (f) that, at law,
whatever, form the mortgage took, upon
non-payment by the appointed time, the
estate of the mortgagee became absolute
and irredeemable, but that equity
intervened to enable the mortgagor to
redeem after the date of repayment.
There are, therefore, two distinct rights
of redemption-the legal or contractual
right to redeem on the appointed day and
the equitable right to redeem thereafter
(g). The equitable right to redeem, which
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only arises after the contractual date of
redemption has passed, must be
distinguished from the equity of
redemption, which arises when the
mortgage is made (g)."
22. The right of redemption of mortgagor
being a statutory right, the same can be
taken away only in terms of the proviso
appended to Section 60 of the Act which is
extinguished either by a decree or by act of
parties. Admittedly, in the instant case, no
decree has been passed extinguishing the
right of the mortgagor nor such right has
come to an end by act of the parties."
6.15 In context of Order 34 Rule 7 and 8 of the
Code of Civil Procedure would indicate that a
right to redemption of a mortgagor is a statutory
right and can be taken away only in terms of a
proviso appended to Section 60 of the Act. In the
facts of the case, in absence of a positive act of
parties by a registered instrument in
extinguishing the right of a mortgagor, the
limitation shall not begin to run. Therefore, the
argument of the learned counsel for the
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appellant that under Article 61(a) of the
Limitation Act by virtue of adverse possession,
the defendant no.1 would become an owner is an
argument that has to be shelved at the threshold.
6.16 It is in light of these findings, if we assess
the order under challenge passed by the Civil
Court entertaining application under Order VII
Rule XI of the Code of Civil Procedure, we find
that on the interpretation of the provisions of
Transfer of Property Act, the Trial Court
observed thus;
"On a plain reading of the deed in question,
it is absolutely clear that the mortgagee had
no right or ownership either at the time of
execution of the deed or on some future
date. Moreover, even if mortgagor failed to
repay the mortgage money, mortgagee had
right to recover money only.
...
The defendant no.1 does not seem to be an
absolute owner of a suit land on strength of
the fact that the mortgage deed at mark 3/5
is not established to be a "mortgage by
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conditional sale" by which the original
mortgagee, or her legal heir shall become
an absolute owner of the suit land. It
requires to be recorded here that the
instrument of mortgage on the face of it
must appear to be a sale."
6.17 Since the Trial Court in our opinion rightly
interpreted the document in light of the
provisions of the Transfer of Property Act when
the document on the face of it was not a
mortgage by conditional sale, we are of the
opinion that the Trial Court committed no error.
6.18 To conclude, we summarize that in the
Special Civil Suit, the principal prayer of the
plaintiff-appellant of specific performance which
was based on the perception of the appellant
plaintiff that the deed of mortgage was a
mortgage by conditional sale and there was an
ostensible sale was misconceived. That was a
specific case made in the plaint in para 11 which
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was the entire foundation of the plaint for
specific performance against a person claiming
to be the owner of such land. Reading of the
mortgage deed dated 27.04.1943 when read
reveals that there is nothing in the deed to
suggest the automatic sale. In fact, it is a clear
case of a document of mortgage being that a one
which can be termed as usufructuary mortgage.
7. In light of the aforesaid reasons, we find no merit
in the appeal and the same is accordingly
dismissed.
(BIREN VAISHNAV, J)
(NISHA M. THAKORE,J)
ANKIT SHAH
