Madhya Pradesh High Court
Gopal Krishna vs Anandpalsingh S/O Gyanpalsingh ... on 26 March, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
1 SA-79-2011
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
SECOND APPEAL No. 79 of 2011
GOPAL KRISHNA
Versus
ANANDPALSINGH S/O GYANPALSINGH DECEASED
THROUGH LRS DEEPAK SINGH AND OTHERS
Appearance
Shri Ajay Mishra - advocate for the appellant.
Shri Sunil Kumar Jain, learned Senior advocate with
Ms.Nandini Sharma, learned counsel for the respondent [R-1]
[LR/S].
Heard On:05.03.2025
Delivered On:26.03.2025
Judgment
The appellant has preferred the present appeal under Section
100 of the Code of Civil Procedure, 1908 (for short "CPC")
challenging the judgment dated 22.12.2009 passed by the learned
Additional District Judge, Sendhwa, District Barwani in Civil
Regular Appeal No.19-A/2008 whereby the learned first Appellate
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
2 SA-79-2011
Court has dismissed the appeal and affirmed the judgment and
decree dated 26.09.2008 passed in Civil Suit No.5-A/2002 by the
learned Civil Judge, Class-II, Khetiya, District Barwani wherein the
learned Civil Judge has dismissed the suit filed by the appellant for
redemption of Mortgage (girvi mukti) and for possession of the land
in question.
2. Succinctly, the facts of the case are that the appellant filed a
suit for redemption of mortgage and for possession of the land
bearing Survey No.37/1 ad-measuring 1.60 acres, situated at village
Pansemal, District-Khargone. As per pleadings, the aforesaid land in
question was mortgaged by late one Shivnarayan, the father of the
appellant on 17.03.1969 vide a deed named as "Shartiya
Frokhtnama" with consideration of Rs.11000/- in favour of one
Janki Devi, the mother of the respondents for a period of five years
i.e. up to 17.03.1974. After the lapse of the said period the appellant
tried to redeem the mortgage, but the respondent did not give any
response, hence, the appellant, on 11.03.2022 served a notice on
respondent to accept the sum of Rs.11000/- and give the possession
of the land in question to the appellant. In reply to the said notice
issued by the appellant, the respondent, denying the execution of
such document, remonstrated that the suit land had never been
mortgaged to his mother Janki Devi and it was sold to her. As such,
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3 SA-79-2011
the respondent, being son of late Jankidevi, was the sole owner of
the suit property.
3. Then, the appellant/plaintiff had filed a Civil Suit bearing
Suit No.5-A/2002 for redemption of mortgage and possession of the
suit land. the suit was contested on various grounds. In written
statements, the respondents have denied all the averments of the
appellant and it is contended that no deed of mortgage was executed
by Late Shivnarayan, but rather it is a document of sale. Since,
appellant is not the sole heir of Late Shivnarayan, he has no locus
standi to file the aforesaid civil suit without impleading the other
legal heirs of Late Shivnarayan as they are also the necessary parties.
The suit is also hopelessly time barred, hence, not maintainable.
4. On the abovementioned pleadings, the learned trial Court
has framed the issues and directed both the parties to lead their
evidence. After recording and appreciating the evidence of both the
parties, the learned trial Court, Civil Judge has dismissed the suit of
the appellant vide judgment and decree dated 26.09.2008.
5. Aggrieved by the judgment and decree dated 26.09.2008
passed by learned Civil Judge Class-II, Khetiya, the appellant
preferred an appeal bearing Regular Civil Appeal No.19-A/2009 and
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
4 SA-79-2011
the learned First appellate Court also dismissed the appeal of the
appellant as stated in para no.1 and affirmed the judgment and
decree passed by learned trial Court. Hence, the present appeal
before this Court.
6. In this second appeal, the appellant has challenged the
findings of learned Courts below on various grounds. Having
considered these grounds, the following substantial questions of
law have been framed vide order dated 02.08.2011:
i. Whether the Courts below have
committed illegality in treating the document
Ex.P/1 as an outright sale deed despite
overlooking to the conditions impounded in the
document itself:
ii. Whether the suit as instituted can be
treated as barred by limitation, despite having
been instituted within the prescribed period of
30 years?
iii. Whether the suit by one of the heirs of
the deceased/mortgagor, is competent for the
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
5 SA-79-2011
purpose of the redemption of mortgage
property?
iv. Whether the Courts below are justified
in holding the suit to be bared by principle of
estoppel under Section 115 of the Indian
Evidence Act?
7. At the outset, before analyzing the submissions of both
parties, it is worth to mention that during the Course of appeal, the
sole respondent expired and notices were issued to Legal Heirs of
the sole respondent on the application under Order 22 Rule 4 of
CPC, notice was served upon two of the legal heirs of respondent,
but no one had appeared on behalf of them. However, matter has
been heard ex-parte against them by co-ordinate Bench of this Court
and vide judgment dated 09.08.2024 this matter has been decided
finally in favour of the appellant.
8. Thereafter, an application for modification of the said
judgment with regard to the area mentioned in the ex-parte judgment
was filed by the appellant and subsequently, the LRs of the
respondent have also filed MCC No.3143/2024 and MCC
No.3221/2024 for setting aside the ex-parte judgment dated
09.08.2024.
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6 SA-79-2011
9. After hearing the parties, both the MCCs were allowed and
disposed off vide order dated 18.02.2025 and the judgment dated
09.08.2024 was set aside. In the result thereof, the application filed
by the appellant for modification in decree with regard to area of suit
land was dismissed as withdrawn as rendered infructuous.
10. Learned counsel for the appellant has submitted that both
the Courts below have erred in misreading the evidence in its proper
perspective which has resulted in arriving at the an erroneous finding
on the issues involved in the case. Both the courts below have erred
in holding that the Document Ex.P/1 is not a mortgage by
conditional sale but affecting an outright sale only. Both the Courts
below have erred in invoking the provisions of Article 61(B) of the
Limitation Act, 1963 which has no application in the present case as
there was no transfer of the property by the mortgages for any
valuable consideration. The disputed property was mutated in the
name of Respondent only because he was the legal heir of the
mortgagee Janki Devi. The Courts below have illogically ignored the
provisions of Article 61(a) of the Act which applies to the present
case and according to which the mortgage can be redeemed within a
period 30 years from the date on which right to redeem or to recover
possession accrues. Both the Courts below have erred in holding that
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
7 SA-79-2011
the suit suffers from non-joinder of necessary parties as the appellant
has five more brothers. The Courts below erred in not considering
the fact that the appellant has a substantial interest in the estate of his
father, the mortgagor and the appellant was ready to pay the entire
amount of mortgage in terms of Ex.P/1. The appellant is elder son of
joint Hindu Family, hence, he has all rights to participate the suit on
behalf of his family. Both the Courts have further erred in holding
that the suit is barred by estoppel under Section 115 of the Evidence
Act. Hence, prays for setting aside the impugned judgments and
decree passed by learned Courts below.
11. In support of his contention, learned counsel for the
appellant has placed heavy reliance over the judgments of Hon'ble
Apex Court passed in the case of (i) M.R. Satwaji Rao (dead)
through LRs. vs B. Shama Rao (dead) through Lrs and Others (2008)
5 SCC 124 (ii) Singh Ram (dead) through legal Representatives vs.
Sheo Ram and Others (2014) 9 SCC 185 and Prabhakaran and
Others vs. M. Azhagiri Pillai (dead) by LRs and Others (2006) 4
SCC 484.
12. Per contra, learned Senior counsel for the respondent has
vehemently supported the impugned judgments passed by learned
Courts below. It is argued that both the learned Courts below have
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
8 SA-79-2011
rightly considered the document Ex.P/1. It is further submitted by
learned counsel for the respondent that the four corners of the
disputed land is not in dispute and the disputed land is situated at
Survey No.37/1 total area 6.62 hectare and out of which the father of
the appellant has sold out 4.95 acre land to one Kalawatibai which is
duly mentioned at Survey no.37/3 and hence, only 1.67 acre of land
was remaining with the father of the appellant. Further, the said land
i.e. 1.60 acre was not mortgaged by Shivnarayan for consideration of
Rs.11000/- but the same was sold out to mother of the respondents
Jankidevi w/o Gyanpal Singh on 17.03.1969 (Ex.P/1). It is further
submitted that the deed dated 17.03.1969 was a sale deed, and
hence, learned Courts below have rightly examined and considered
this issue. It is also submitted that the father of the appellant has also
later on executed a sale deed on 02.05.1974 also in favour of father
of the respondents with regard to the remaining land of 0.07 acre
also. Learned Senior counsel for the respondent vehemently
submitted that the deed vide Ex.P/1 is not a mortgage and the same
is absolute sale, hence, the question of limitation has rightly been
decided by both the Courts below, therefore, the suit has already
been considered by learned Courts below on the point of limitation
also. Further, the appellant, being elder son of his father
Shivnarayan, is not a proper party before the courts below and
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
9 SA-79-2011
whether the appellant solely can file the suit on behalf of his family,
this Court has to consider the question. Hence, the suit filed by the
appellant, itself is not maintainable due to non-joinder of the
necessary parties since five other sons of the father of appellant are
alive.
13. Learned Senior counsel for the respondent has further
submitted that the land in question has already been mutated in the
name of the respondents and till 1969 to 2002, they have neither
challenged the mutation proceedings nor the other proceedings on
the said land and only after death of the father of the appellant in the
year 1995, they have sent a legal notice to the respondents in 2002.
However, Learned Senior counsel for the Respondent has admitted
that the respondents could not produce the proceedings of mutation
with regard to the said land, because the record could not be
achieved since, the same has been demolished. At the end, learned
Senior counsel for the respondent has closed his arguments mainly
on three grounds i.e. Ex.P/1 is not the mortgage deed but the same
was absolute sale, secondly, since, Ex.P/1 is absolute sale, the
limitation period for the same shall only be three years and thirdly,
the suit has rightly been dismissed by the Courts below since non-
joinder of parties is appears to be reasonable for proper adjudication
of the suit land, and prays for dismissal of this appeal with cost.
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
10 SA-79-2011
14. In reply of the aforesaid submissions of learned Senior
counsel for the respondent, learned counsel for the appellant has
mainly submitted that at the similar time, some other transactions of
adjacent lands were executed by Shivnarayan in favour of family of
respondent and in favour of one Kalawati in the form of absolute
sale deeds vide Ex.P/6 and Ex.D/34 respectively. However, only the
execution of Ex.P/1 is pertaining to Shartiya Faroktnama. Therefore,
this deed should be acknowledged as Shartiya Faroktnama.
15. I have heard the counsel for the parties at length and
perused the material available on record including the impugned
judgments and decree.
16. Prior to consideration of the substantial questions of law
involved in the present appeal, this Court has to go through the
relevant part of entire document i.e. Ex.P/1 which is necessary to
arrive at the conclusion. The respective portion of Ex.P/1 is worth
mentioning here in the same words:
'' जानक दे वी पित ानपालिसंह जाित राजपुत उ ७० वष
ध दा गृह'- काय िनवासन खेितया तहसील सघवा प0िन0 ------
िलखा लेने वाली
िशवनारायण पता अमराजी जाित माली उ ४५ वष-
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
11 SA-79-2011
ध दा कृ ष िनवासी पानसेमल तहसील सधवा जला प0िन0 ------
िलख दे ने वाला
ाम पानसेमल जंगल क का त खाता नंबर ५३ जुमला खसरा
नंबर २ रकबा ६.६७ िनधारण पये १६.५७ नये पसे क भूिम म से
खसरा नंबर ३७/१ रकबा ६.६२ िनधारण पये १६.६२ पैसे क भूिम
पैक रकवा १.६० िनधारण पये ४.३५ पैसे क भूिम- उतर साईड
क , पूव- प म पानी क नाली का बा ध है उसके उ र तरफ क , कुव
के आधे व व आपको वष ५: पांच : के करार से पये ११/००० ।-
यारह हजार पय म शितया- फरोत क ह
ाम पानसेमल प0 ह0 नं0 ३२ म का त खाता नंबर ५३ खसरा
नंबर:-
खसरा नंबर रकबा िनधारण पये-पैसे क
भूिम
३६/२ ०-०७ ०-०५
३७/१ ६.६२ १६-५२
जु0ख0 नं0 २ ६.६९ ९६-५७
राज व - प म मेरे नाम पर अं कत होकर के उ का त म से
खसरा नंबर ३७/१ रकबा ६.६२ िन0 पये १६-५२ नये पैसे क भूिम
पैक रकबा १-६० िनधारण पये ४-३५ पैसे क भूिम उतर साइड
क , जो सदर खसरा नंबर - ३७।१ म पानी जाने क लांगी पव- से
प म को जाित है , उसके उपर-तरफ क भूिम प म ओर से रकबा
१-६० क भूिम मने आपक वष ५:पांच: के करार से शितया -
फरो - क मत ११००/- अ र यारह हजार पय म क है , सदर
शितया-फरो सुदा का त के पूव- साईड मेर बचत जमीन रहे गी
तथा सदर शितया-फरो त -सुदा-कासत का कबजा भी मने आपको
मौके पर चलकर के दे दया है , जो सदर का त के भू0 वामी ह क
जो जो मुझे ा थे वो वो सम त ह क अब- आपको ा रहगे।
सदर फरो त-सुदा-का त के पव-साईड म मेर बचत भूिम
होकर के मेर -बचत भूिम के पव- म नद के कनारे से लगा हुआ
NEUTRAL CITATION NO. 2025:MPHC-IND:8108
12 SA-79-2011
एक क चा कुवा है , उसका आधा व व भी मने आपको शितया-
फरो त कया ह व आधा व व कलावती बाई राधे याम चौहान को
मने- सदर खसरा नंबर पैक रकबा ४-९५ ब कया है उसके
समेत फरो त कर दया है व कुव के पानी के लांगी पर पूव से
प म क ओर जाती ह, सो सदर लांगी के उ र तरफ का आधा
व व भी मने आपको श या-फरो त कया है तथा कुव के नजद क
से कलावतीबाई पित राधे याम चौहान का आने जाने का रा ता
रहे गा।
सदर शितया-फरो नामे क यह शत िन त क गई है क म
शितया-फरो त- नामा िलख दे ने वाला आप शितया-फरो त-नामा
िलखा लेने वाल को आज दनांक:- १७-३-१९६९ से दनांक :-
१७-३-१९७४ यानी वष ५:पांच: के भीतर सदर शितया-फरो त-नामे
के चुकते पये ११/०००। यारह हजार आप िलखा लेने वाले को
भुगतान कर दगंु ा तो म सदर शितया-फरो त क का त का कबजा
म आपसे वापस मांगने का- अिधकार रहुग
ं ा तथा आपका यह कत य
होगा क सदर का त आप मेर ओर प रवितत कर।
सदर का त प रवितत करने म जो भी खच होगा उसका
जवबदार म रहुग
ं ा- सदर का त के- िन बत मेरा या मेरे कसी भी
वार सदार का कसी भी कार का दावा-झगड़ा वगैरह नह ं है अगर
कोई भी िनयत बदलकर कसी भी पकार का मालीकाना अिधकार या
दावा- झगड़ा वगैरह करगे तो व इस लेख ारा नाजायज व झूठे
माने जावगे।
सदर कासत पर आज से आपने अपना कबूजा करके सदर
का त का उपभोग उ प न लेते रहना उसम मेरा या मेरे कसी भी
वार सदार का झगड़ा या हकक बगरह नह ं रहगे।
सदर का त का नाम तरण आपने िन त िमया समा होने
के प ात ् याने दनांक :- १७-३-१९७४ के प ात भू 0 राज व- संताि
सन ् १९५९ क धारा ११० के- करा लेना उसम मेरा या मेरे कसी भी
वार सदारो का दावा-झगड़ा रहे गा नह ं अगर- कोई भी िनयतबदलाकर
कसी भी कार क आपिध करगे तो वे इस लेख ारा नाजायज व-
झूठे माने जावगे।
िलहाजा यह शितया- फरो त- नामा मने मेर राजी खुशी से
बना नशे पानी के हो शो हवाश म व संतोष के साथ िलखा व
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पढवाकर सुना व मेरा सह एव खुशी से व एवं- ई छा से क सो
सह व मजुर है दनांक :- १७-३-१९६९'' .
17. From bare perusal of the aforesaid documents Ex.P/1, it
appears that both the Courts below have erred in holding that the
aforesaid document Ex.P/1 in question is an absolute sale deed.
Actually, it is peculiar in the nature. It is pertinent to note that earlier
Shivnarayan has sold his land bearing Survey No.37/1 area 6.62 acre
Paike 4.95 Acre to one Kalawati vide sale deed dated 25.02.1969
(Ex.D/34) only in Rs.5000/- i.e. only 20 days prior to the Execution
of deed of Ex.P/1 dated 17.03.1969. Further, Kalawati has sold it out
to Malkhan Singh on vide sale deed dated 11.06.1971 for
consideration of Rs.10000/- (Ex.D/35). Whereas, as per the record,
Jankidevi has paid Rs.11000/- for the said land qua Ex.P/1 which is
only 1.60 acre i.e. in the year 1969 which is 1/3 of the earlier sold
land measuring 4.95 acre. The question arises as to why the
respondent has purchased the land in question having only area of
1.60 acre for consideration of Rs.11000/- in the year 1969. It is very
surprising that on the one hand, the land ad-measuring 4.95 acre was
purchased for consideration of only Rs.10000/- in the year 1971 and
on the other hand, the respondent has paid Rs.11000/- for the land
ad-measuring 1.60 acre only. It is also surprising that prior to the
execution of Ex.P/1, the respondent Jankidevi has also purchased a
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14 SA-79-2011
land ad-measuring 0.38 decimal for consideration of Rs.4000/- from
Shivnarayan vide sale deed dated 29.12.1965 (Ex.P/6) and this fact
is admitted by the respondent in the cross-examination. The
consideration of the land in question is nether justified in accordance
with the consideration of land executed vide Ex.P/6 nor vide
Ex.D/34 and Ex.D/35.
18. In view of that and on bare perusal of Ex.P/6, Ex.D/34 and
Ex.D/35 alongwith Ex.P/1, it is clear that the contents of the Ex.P/1
which is in dispute, are totally different to the contents of Ex.P/6,
D/34 and Ex.D/35, which are absolute sale and looking to the
contents of Ex.P/1, the same is not a sale but rather it is a shartya
fharoktnama in the form of mortgage of conditional sale. However,
the learned both the Courts below have held the Ex.P/1 as absolute
sale without considering the aforesaid factual matrix of the case.
19. Further, looking to the difference of the contents of Ex.P/1
in comparison to Ex.P/6, Ex.D/34 and Ex.D/35, Ex.P/1 is not an
absolute sale in any manner and the same is Mortgage by conditional
sale" as defined in Clause (C) of Section 58 of the Transfer of
Property Act, which provides as under:
(C) Mortgage by conditional sale. Where
the mortgagor ostensibly sells the mortgaged
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property- On condition that on default of
payment of the mortgage money on a certain
date the sale shall become absolute, or 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 a mortagee 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."
20. Having gone through the impugned judgments and decree
passed by learned Courts below, it emerges that the learned Courts
below have decided and dismissed the suit of appellant/plaintiff
regarding maintainability of the suit on the ground of limitation by
holding that since mortgage was effected on 17.03.1969 and the
plaintiff was free to repay the amount in pursuance to the deed
Ex.P/1 on any date prior to 17.03.1974 i.e. before the expiry of
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period of five years as contained in Ex.P/1 i.e. सदर शितया-फरो
नामे क यह शत िन त क गई है क म शितया-फरो त- नामा
िलख दे ने वाला आप शितया-फरो त-नामा िलखा लेने वाल को आज
दनांक:- १७-३-१९६९ से दनांक :- १७-३-१९७४ यानी वष ५:पांच:
के भीतर सदर शितया-फरो त-नामे के चुकते पये ११/०००। यारह
हजार आप िलखा लेने वाले को भुगतान कर दग ंु ा तो म सदर
शितया-फरो त क का त का कबजा म आपसे वापस मांगने का-
अिधकार रहुग ं ा तथा आपका यह कत य होगा क सदर का त आप
मेर ओर प रवितत कर। Therefore, the learned Both the Courts
below have wrongly adjudicated the question by holding that the
deed Ex.P/1 was a sale deed and have erred in calculating the period
of limitation as only 03 years instead of 30 years and dismissed the
suit.
21. On this aspect, Hon'ble Apex Court in the case of Smt.
Indira Kaur and Ors. vs. Shri Sheo Lal Kapor, AIR 1988 SUPREME
COURT 1074 has observed as under:
"......There is an increasing tendency in recent
years to enter into such transactions in order to
deprive the debtor of this right of redemption
within the prescribed period of limitation. In
fact, very often the mortgagee in place of
getting a mortgage deed executed in lieu of a
loan obtains an agreement to sell in his favour
from the mortgagor so as to bring pressure on
the mortgagor by seeking to enforce specific
performance to enable the mortgagee to obtain
possession of the property for an amount
smaller than the real value of the
property..........."
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22. In this regard, the learned counsel for the appellant has
relied upon a judgment rendered in Veersingh vs. Dharamsingh 982
RN 395 wherein it has been held that "in the registered sale deed,
Ikrarnama executed that after payment of debt money, land well be
returned, it is a mortgage and not a sale." Though the judgment has
been passed by learned Tribunal, but the ratio held in the judgment
has been acknowledged.
23. The maxim "once a mortgage always a mortgage" may be
said to be a logical corollary from the doctrine, which is the very
substratum of the law of mortgages. As such, the time is not the
essence of the contract in such transactions, In this regard the law
endorsed by Full Bench of Hon'ble Apex Court in the case of Seth
Ganga Dhar vs. Shankar Lal [AIR 1998 SC 770], is worth to be
reproduced here:
The rule against clogs on the equity of redemption is that,
a mortgage shall always be redeemable and a mortgagor's
right to redeem shall neither be taken away nor be limited
by any contract between the parties. The principle behind
the rule was expressed by Lindley M. R. in Santley v.
Wilde (1) in these words:
" The principle is this: a mortgage is a
conveyance of land or an assignment of chattles
as a security for the payment of a debt or the
discharge of some other obligation for which it
is given. This is the idea of a mortgage: and the
security is redeemable on the payment or
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discharge of such debt or obligation, any
provision to the contrary notwithstanding. That,
in my opinion, is the law. Any provision
inserted to prevent redemption on payment or
performance of the debt or obligation for which
the security was given is what is meant by a
clog or fetter on the equity of redemption and is
therefore void. It follows from this, that "once a
mortgage always a mortgage ".
24. In so far as the oral evidence with regard to execution of
Ex.P/1 is concerned, actually it will be excluded by the operation of
law predicated under Section 95 of Bhartiya Sakshya Adhiniyam,
2023 (Section 92 of Indian Evidence Act, 1872) which is as under:-
95. ...
When the terms of any such contract, grant or
other disposition of property, or any matter
required by law to be reduced to the form of a
document, have been proved according to
section 94, no evidence of any oral agreement
or statement shall be admitted, as between the
parties to any such instrument or their
representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting
from, its terms:
25. However, the aforesaid law is applied subject to its
proviso, but neither the respondent has raised any ground with
regard to those proviso nor raised any contention in this regard.
Hence, the word (Shartiya Faroktnama) used in the said deed Ex.P/1
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will govern the nature of said deed and it excludes any oral evidence
in this regard. Actually, the aforesaid provision of law forbids
proving of the contents of writing otherwise then by writing itself
and merely lays down the "best evidence rule".
26. In this regard, the law laid down by Hon'ble Apex Court in
the case of Singh Ram (dead) through legal representative Vs. Sheo
Ram and others reported in (2014) 9 SCC 185 is also poignant to
point out here:-
"The right of redemption, therefore, cannot be taken away.
The courts will ignore any contract the effect of which is
to deprive the mortgagor of his right to redeem the
mortgage. One thing, therefore, is clear, namely, that the
term in the mortgage contract, that on the failure of the
mortgagor to redeem the mortgage within the specified
period of six months the mortgagor will have no claim
over the mortgaged property, and the mortgage deed will
be deemed to be a deed of sale in favour of the mortgagee,
cannot be sustained. It plainly takes away altogether, the
mortgagor's right to redeem the mortgage after the
specified period. This is not permissible, for 'once a
mortgage always a mortgage' and therefore always
redeemable. The same result also follows from Section 60
of the Transfer of Property Act..."
27. In view of the aforesaid law and the factual matrix of the
case, this Court is of the considered opinion that the mortgagee
purchased the mortgage property in pursuance to Shartiya Faroktnam
Ex.P/1 and therefore, the relations of mortgagor and mortgagee
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20 SA-79-2011
continues to subsist even thereafter. In view of the same, the right to
redeem the mortgage is not extinguished and in the eyes of law, the
purchase of the mortgaged property must be deemed to have been in
favour of the mortgagor/appellant.
28. Since, the aforesaid deed i.e. Ex.P/1 which is particularly,
in any manner, not an absolute sale deed and varies from the
contents of actual and absolute sale deed, the learned Courts below
have wrongly held the same is absolute sale whereas Ex.P/1 which is
clearly a mortgage and falls within the definition of mortgage by
conditional sale as prescribed under Clause (C) of Section 58 of the
Transfer of Property Act. Hence, the Answer of Substantial Question
No.I is "Yes". The learned trial Court has committed an error of law
in holding that Ex.P/, is outright sale.
29. In view of the factum that since, the learned Courts below
have erred in holding the Ex.P/1 as outright sale whereas the same is
not an outright sale, but rather mortgage by conditional sale, the
Limitation period for redemption shall be 30 years which is a settled
and prescribed law and is not in dispute. Since, it is not in dispute
that the suit is filed in the year 2002 which is within 30 years from
the date of 17.03.1974, the suit is filed within limitation. The period
for limitation as prescribed under Section 61(a) of the Limitation
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Act, 1963 reads as under:
61. By a mortgagor-
(a) to redeem or to recover possession of
immovable property mortgaged: Thirty years.
30. The Hon'ble Apex Court in the case of Prabhakaran and
Others vs. M. Azhagiri Pillai (dead) by Lrs and others Reported in
(2006) 4 SCC 484 has held that where the mortgagee makes a direct
admission that he is liable to deliver back possession to the
mortgagor, then limitation period is prescribed for 30 years because
the right of redemption of mortgage is one as provided under Article
60 of the Transfer of Property Act. The Provisions contained in
Section 58 of the Transfer of Property Act, 1882 entitles the
mortgagor to redeem the property at any time within the period of
Limitation for the principal money, has become due. Article 61 of
the Limitation Act, 1963 provides the starting point and limitation
for using in "right to redeem accrued to the mortgagor."
31. Article 61(c) of the Limitation Act provides that the period
of limitation for a suit by a mortgagor to redeem or recover the
possession of the immovable property is 30 years. The period of
limitation begins to run when right to redeem or to recover of
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22 SA-79-2011
possession accrues.
32. In view of the aforesaid discussions, right to redeem
accrued to the plaintiff only expiry of five years i.e. 17.03.1974and
the suit having been instituted in the year 2002 is absolutely within
the limitation period as prescribed by law.
33. In view of the aforesaid settled prescribed law, the second
substantial Question of Law that whether the suit as instituted can be
treated as barred by limitation, despite having been instituted within
the prescribed period of 30 years, the answer is "negative" and that is
in favour of appellant. The answer of this question is having
togetherness with answer of question no.1, since, the answer of first
substantial question is positive, the answer of second substantial
question of law is automatically changed as above, in view of
prescribed law of Limitation.
34. Learned counsel for the appellant/plaintiff contended that
the Courts below erred in holding that the suit suffers from non-
joinder of necessary party as the appellant has five more brothers and
having not impleaded as party in the matter and the appellant alone
has no locus-standi to sue the suit without impleading all the legal
heirs of his father Late Shivnarayan. In the instant case, it should be
remembered that the appellant/plaintiff is the Karta of Hindu and
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Undivided family and as per the settled law in the case of Nanhibai
@ Tulsibai vs. Badriprasad [1959 MPLJ 1018], the
appellant/plaintiff being karta of Hindu and Undivided Family is
alone competent to sue on behalf of other heirs of the mortgagor,
hence, the suit is held maintainable without impleading other
brothers of the appellants. It is also pertinent to mention here that no
brother of the appellant has ever raised objection in this regard either
before the Courts below or before this Court with regard to authority
of appellant to file the suit. Hence, the third substantial question is
also answered "positive" in favour of appellant.
35. On the point of 4th substantial question of law with regard
to section 115 of Indian Evidence Act, this Court is of considered
opinion that when the said deed Ex.P/1 has been adjudicated as
mortgage by conditional sale and it has been already adjudged that
suit for redemption has been filed within limitation, then no question
arises regarding estopple. As such, the 4th substantial question of
law is answered in "Negative" in favour of appellant.
36. At the cost of repetition, it is worth mentioning that this
Court has noticed that herein before, nature of the deed Ex.-P/1
described that the document is not ambiguous as it is clearly
mentioned as Shartiya Farokht Nama. The transaction however,
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categorically stated that the plaintiff is entitled to divert the use of
agriculture at the expenses of seller. If the intention of the parties
was to transfer the suit property absolutely, no such stipulation was
required to be made at all. In a case of absolute transfer, the vendee
has absolute right to deal his property in any manner, he likes. It is
clearly stipulated in the deed that if the executant repays the entire
consideration by 17/03/1974, the purchaser would reconvey the
property and furthermore deliver the possession thereof. The sale
was to become absolute only when transferee fails to pay the said
amount within the stipulated period of limitation i.e. 30 years. The
Courts below have not taken into consideration all the aforesaid
conduct of both the parties in treating transaction to be one of the
mortgage and not of sale, therefore, this Court is of the considered
opinion that the parties intended to enter into transaction of
mortgage and not of sale.
37. In the case of Patel Ravjibhai Bhulabhai (D) and Ors.vs.
Rahemanbhai M Shaikh (D) and Ors [2016 LawSuit (SC) 433], the
facts were somewhat similar to the case at hand. In this case, Hon'ble
Supreme Court endorsing its earlier judgments ordained as under:-
[11]. In P.L. Bapuswami vs. N. Pattay Gounder[2], it is held
that:
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25 SA-79-2011
"The definition of a mortgage by conditional
sale postulates the creation by the transfer of a
relation of mortgagor and mortgagee, the price
being charged on the property conveyed. In a
sale coupled with an agreement to reconvey
there is no relation of debtor and creditor nor is
the price charged upon the property conveyed,
but the sale is subject to an obligation to
retransfer property within the period specified.
The distinction between the two transactions is
the relationship of debtor and creditor and the
transfer being a security for the debt. The form
in which the deed is clothed is not decisive. The
question in each case is one of determination of
the real character of the transaction to be
ascertained from the provisions of the document
viewed, in the light of surrounding
circumstances. If the language is plain and
unambiguous it must in the light of the
evidence of surrounding circumstances, be
given its true legal effect".
[12]. In Vishwanath Dadoba Karale vs. Parisa Shantappa
Upadhya[3], the facts of the case were somewhat similar to
the present case, and as is evident from paragraph 2 in said
case, the Court held the deed was a mortgage by conditional
sale, and upheld the decree of redemption for mortgage.
[13]. In C.Cheriathan vs. P. Narayanan Embranthiri [4],
the principle relating to interpreting of document as to
whether the sale is mortgage by conditional sale or sale with
a condition to repurchase was discussed, and this Court held
as under:
"12. A document, as is well known, must be
read in its entirety. When character of a
document is in question, although the heading
thereof would not be conclusive, it plays a
significant role. Intention of the parties must be
gathered from the document itself but therefor
circumstances attending thereto would also be
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26 SA-79-2011
relevant; particularly when the relationship
between the parties is in question. For the said
purpose, it is essential that all parts of the deed
should be read in their entirety".
[14]In the case at hand the document in question (Exh. 23)
contains the condition as under: -
"In this deed condition is that the said amount
of Rs.10,000.00 when we pay back to you
within five years from today, you shall give
back the said property to us with possession.
And in the same manner, we shall have no right
to ask back the same after expiry of the time
limit." The above condition in Exh.23 that if the
plaintiffs (respondents) make repayment of
Rs.10,000/- within a period of five years, the
defendants shall handover the possession of
property in suit back to the plaintiffs, reflects
that the actual transaction between the parties
was of a loan, and the relationship was of
debtor and creditor existed, as such, we are of
the view that the High Court has rightly held
that the deed in question Exh.23 read with Exh.
37 is a mortgage by way of conditional sale and
the decree passed in favour of the plaintiffs
does not require to be interfered with. Needless
to say, since the possession of the land was
handed over to the mortgagee, no interest was
charged. It has also come on record that the
defendants leased the land to third parties, after
possession was given by the plaintiffs in 1960.
In the circumstances, after perusal of the
evidence on record, we agree with the view
taken by the High Court."
(Emphasis
supplied)
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38. Applying the aforesaid principle laid down as above and
from comparison of other sale deed Ex.-D/34, Ex.D/36 and Ex.-D/8
with Ex.-P/1 it is clear that document / instrument Ex.-P/1
constitutes mortgage by conditional sale as the condition of
repayment has been contained in the same document by which the
property was sold out, therefore, the transaction between both the
parties should be treated to be a mortgage by conditional sale.
39. Having regard to the circumstances of the case, it is held
that document Shartiya Farokht Nama Ex.-P/1 is definitely a
mortgage deed; it cannot be treated as absolute sale deed. The
appellant had demanded for redemption and he was ready to pay the
said amount of Rs.11,000/- to the respondent and also sent a notice
Ex.P/3 for the same purpose, but the respondent/defendant did not
ready to comply their part in the deed Ex.-D/1.
40. In view of the aforesaid, all the substantial questions of
law framed by this Court has been decided in favour of the appellant.
Impugned judgment and decree passed by both the Courts below are
erroneous in the eyes of law and facts, therefore, impugned
judgment and decree passed by both the Courts below cannot be
sustained and is liable to be set aside. The appellant is entitled to a
decree of redemption of suit properties.
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41. Accordingly, this Second Appeal is allowed and disposed
off. Impugned judgment and decree dated 22.12.2009 passed by the
learned Additional District Judge, Sendhwa, District Barwani in
Civil Regular Appeal No.19-A/2008 as well as the judgment and
decree dated 26.09.2008 passed in Civil Suit No.5-A/2002 by the
learned Civil Judge, Class-II, Khetiya, District Barwani are hereby
set aside. The suit filed by the appellant/plaintiff for redemption of
mortgage and possession of the suit land is decreed accordingly as
under:-
(a) With regard to the suit land bearing
Survey No.37/1 ad-measuirng 1.60 acre situated
at village Pansemal, District Khargone (M.P.),
legal representatives of respondent / defendant
shall execute a deed of redemption or re-
conveyance as required under law in favour of
the appellant/plaintiff after receipt of the
amounts as agreed by them through Ex.P-1 i.e.
Rs.11,000/- within four months from today.
(b) If the appellant/plaintiff deposited the
same within three months from this date with
notice to the mortgagee, all the legal
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29 SA-79-2011
representatives of defendant jointly and
severally vacate the suit premises and shall
hand over vacant possession of the suit property
to the plaintiff/appellant within four months
from the date of this judgment. It is also
clarified that if there is any inconvenience in
depositing the amount, the appellant is at liberty
to deposit the amount in the trial Court
concerned immediately by intimating the
respondents.
(c) If the appellant fails to deposit the
amount within three months as directed
aforesaid, the respondent will not be bound to
comply with the aforesaid decree.
(d) Parties would suffer their respective
cost in the circumstances of the case.
C c as per rules.
(PREM NARAYAN SINGH)
JUDGE
amit
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