Sanjay Kumar Pandey @ Abhinu Kumar ... vs Rajdeo Yadav
2025 Latest Caselaw 2633 Patna

Patna High Court

Sanjay Kumar Pandey @ Abhinu Kumar ... vs Rajdeo Yadav on 26 May, 2025

Author: Khatim Reza

Bench: Khatim Reza

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                          SECOND APPEAL No.546 of 2010
                                     ********
     Against the judgment and decree dated 02.05.2009, passed by the learned
     Second Additional District and Sessions Judge, West Champaran, Bettiah in
     Title Appeal No. 82 of 1991 reversing the judgment and decree dated
     19.07.1991

, passed by the learned First Additional Munsif, Bettiah, in Title Suit No. 80 of 1985.

*******

1. Sanjay Kumar Pandey @ Abhinu Kumar Pandey son of Daya Shankar Pandey resident of Village Bhediharwa, P.S. Sikarpur, District West Champaran.

2. Alok Pandey @ Alok Kumar Pandey son of Daya Shankar Pandey, resident of Village Bhediharwa, P.S. Sikarpur, District West Champaran.

... ... Plaintiffs/Respondents/ Appellant/s Versus

1. Rajdeo Yadav S/o Parikha Yadav, resident of Village Bhediharwa, P.S. Sikarpur, District West Champaran.

.. ... Defendant/Appellant/Respondent 1st set

2. Binod Kumar Pandey S/o Paras Pandey, resident of Village Dhankutwa, P.S. Sikta, District West Champaran.

... .... Defendant/Respondent /Respondent 2nd t set

3. Asharfi Yadav, son of Parikha Yadav, resident of Village Dhankutwa, P.S. Sikta, District West Champaran.

4. Vyas Yadav Son of Parikha Yadav, resident of Village Dhankutwa, P.S. Sikta, District West Champaran.

5. Vimal Kumar Pandey, S/o Paras Pandey, resident of Village Dhankutwa, P.S. Sikta, District West Champaran.

... ... Defendant/Respondents/ Respondent/s 3rd Set ====================================================== Appearance :

For the Appellant/s : Mr. Jitendra Kishore Verma, Advocate Mr. Lal Babu Singh, Advocate Mr. Anjani Kumar, Advocate Mr. Ravi Raj, Advocate Mr. Abhay Nath, Advocate Mr. Shreyash Goyal, Advocate Mr. Abhishek Kumar Srivastava, Advocate Patna High Court SA No.546 of 2010 dt.26-05-2025

Ms. Kumari Shreya, Advocate For the Respondent/s : Mr. J.S. Arora, Sr. Advocate Mr. Ratan Kumar Sinha, Advocate Mr. Manoj Kumar, Advocate Mr. Rakesh Kumar, Advocate Mr. Himanshu Shekhar, Advocate Mr. Ravi Bhatia, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE KHATIM REZA CAV JUDGMENT Date :26-05-2025

Heard Mr. Jitendra Kishore Verma, learned counsel

representing the appellants, assisted by Mr. Lal Babu Singh, and

Mr. J. S. Arora, learned senior counsel assisted by Mr. Ratan

Kumar Sinha, learned counsel for the respondents.

2. This Second Appeal has been filed against the

judgment and decree dated 02.05.2009, passed in Title Appeal

No. 82 of 1991 by the learned Second Additional District and

Sessions Judge, West Champaran, Bettiah, whereby the lower

appellate court reversed the judgment and decree dated

19.07.1991, rendered in Title Suit No. 80 of 1985 by the learned

First Additional Munsif, Bettiah, in which the suit filed by the

plaintiff-appellants was partially decreed.

3. In order to gauge the matter in its correct perspective, it

is necessary to briefly restate what the suit entails. The plaintiffs-

appellants filed Title Suit No. 80 of 1985 for declaring the

registered mortgage by conditional sale dated 15.04.1980 to be a

mortgage and further sought a direction commanding Patna High Court SA No.546 of 2010 dt.26-05-2025

defendant/ respondent no. 1 to accept the mortgage amount of

Rs. 4,000/- within a fixed time frame, execute a deed of re-

conveyance (wapsinama) and deliver possession of the

mortgaged property to the plaintiffs, failing which the plaintiffs

prayed for execution of the re-conveyance deed through the

process of the Court upon deposit of the mortgage amount.

During the pendency of the suit, defendant/ respondent no. 5,

who is the brother of defendant/ respondent no. 2, executed sale

deeds dated 22.06.1981 (Ext. A and A/1) in favour of defendant/

respondent nos. 3 and 4, who are brothers of defendant/

respondent no. 1, thereby transferring half of the suit property

along with certain other pieces of land. Thereafter, the plaintiffs

amended the plaint to challenge the said sale deeds as illegal,

fraudulent, inoperative, and not binding upon them. The

plaintiffs contended that the land, in-question, was allotted to

defendant/ respondent no. 2 during the partition, who

subsequently mortgaged the same in favour of defendant/

respondent no. 1 to secure a loan of Rs. 4,000/-. Accordingly,

defendant/ respondent no. 2 executed a registered mortgage by

conditional sale dated 15.04.1980 in respect of the property

described in the plaint. The mortgage deed specifically stipulated

that upon repayment or receipt of the mortgage loan amount of Patna High Court SA No.546 of 2010 dt.26-05-2025

Rs.4,000/-, the mortgagee would execute a sale deed in favour of

the mortgagor and hand over possession of the land in question

to defendant/respondent no. 2. The mortgage deed clearly

specified that upon repayment or receipt of the mortgage loan

amount of Rs.4,000/-, the mortgagee would execute a sale deed

in favour of the mortgagor and hand over possession of the land,

in question, to defendant /respondent no. 2.

4. The reconveyance to the original owner, defendant/

respondent no. 2, was to be completed upon receipt of the

original mortgage amount, without any increase or fixation of a

new sale consideration, and could be executed at any time, as no

specific time frame was specified in the deed. The instrument of

mortgage by conditional sale was executed by defendant/

respondent no. 2 with a clear understanding that the mortgage

would be redeemed upon repayment of the debt, as the market

value of the land at the relevant time was around Rs. 10,000/-.

However, the mortgage was executed for a loan amount of only

Rs. 4,000/- on 15.04.1980, and the plaintiffs purchased the

property for Rs.10,000/- within a year. Further, within the same

year, the brothers of defendant/respondent no.1, defendant/

respondent nos. 3 and 4 purchased half of the suit property for a

consideration of about 6,000/-, although the sale deed mentions Patna High Court SA No.546 of 2010 dt.26-05-2025

more than half of the property. This indicates that, according to

defendant no. 1 and his brothers, the value of the entire property

was around Rs.12,000/-. Therefore, no reasonable person would

sell property worth Rs.10,000 to Rs.12,000 for merely Rs.4,000.

This supports the plaintiffs' assertion that the transaction was not

an absolute sale with a condition of re-purchase, but rather a

mortgage by conditional sale. Further, the mortgage deed is

consistent with the third condition of Clause 58(c) of the

Transfer of Property Act, 1882 ( for short 'the Act'). The reason

for the ostensible sale, or the technical drafting of the document,

has been explicitly explained in the plaint to safeguard the

transaction from the provisions of the Bihar Money Lenders Act.

Under this Act, after the completion of seven years in cases of

mortgage with the right of possession and enjoyment, the

mortgage would automatically stand redeemed by operation of

law without the need to repay the mortgage money to the

mortgagee. However, considering the terms, conditions, and

surrounding circumstances, the parties consistently treated the

document as a mortgage deed rather than a sale deed. Further,

the plaintiffs contend that defendant/ respondent no. 2, in need of

further money, agreed to execute a sale deed in their favour upon

receipt of the sale price of Rs.10,000/-, while reserving the Patna High Court SA No.546 of 2010 dt.26-05-2025

mortgage amount. Accordingly, sale deeds dated 12.08.1981

were executed in favour of plaintiff/appellant nos. 2 and 3 for the

entire mortgaged property. Accordingly, the plaintiffs requested

defendant/respondent no. 1 to execute the deed of re-conveyance

(Wapsinama) upon receipt of the mortgage amount. Pursuant to

the mortgage deed, the plaintiffs approached defendant/

respondent no.1 by submitting a written application for

redemption of the mortgage by depositing the mortgage amount

and requesting the execution of the re-conveyance deed.

However, defendant/respondent no. 1 refused to accept the

payment and failed to execute the deed of re-conveyance

(wapsinama), which led to the filing of the present suit for

redemption.

5. Defendants/respondents nos. 1, 3, and 4 appeared and

filed their respective written statements, contesting the suit and

denying the plaintiffs' claims. The remaining defendants did not

file any written statements but raised preliminary objections

regarding the maintainability of the suit and other ornamental

issues. Defendant /respondent No. 1, in his written statement,

categorically denied the claim of any mortgage by way of

conditional sale, asserting that he never agreed to execute a

'Vapsinama' on payment of Rs.4,000/-. He further contended Patna High Court SA No.546 of 2010 dt.26-05-2025

that the suit is liable to abate under the provisions of Section 4(c)

of the Bihar Consolidation of Holdings and Prevention of

Fragmentation Act, 1956 (hereinafter referred to as 'the

Consolidation Act'). The defendants further pleaded that the

agreement for re-conveyance, mentioned in the mortgage deed,

is void, as the instrument does not mention any fixed time for

the property to be returned. Defendant No. 1 asserted that the

registered mortgage deed dated 15.04.1980 was supposed to be

executed for only half of the land, i.e., 6 kathas and 4½ dhurs.

However, he claims that the deed was fraudulently executed for

12 kathas and 9 dhurs. Primarily, the mortgagee challenges the

correctness of the land area mentioned in the registered deed,

arguing that it should have reflected only half of the land

specified in the document. It is further pleaded that a plain

reading of the mortgage deed indicates that the mortgage was

confined to only half of the total land. They asserted that, within

a year of the mortgage, they claimed to have purchased half of

the mortgaged property from defendant /respondent No. 5, who

is the full brother of the mortgagor in this case. Defendant

/respondent No. 5 contends that he and defendant/respondent

No. 2 each hold a half share in the mortgaged property, and

therefore, defendant/respondent No. 2 could have mortgaged Patna High Court SA No.546 of 2010 dt.26-05-2025

only his half of the property. Defendant /respondent Nos. 3 and 4

have fully supported the written statement of defendant

/respondent No. 1 by making similar pleadings, with the

intention of claiming ownership over at least half of the property.

Therefore, it is clear that the cases of defendant /respondent No.

1 and defendant/respondent Nos. 3 and 4 are closely connected

and have a common interest.

6. The further case of defendant/respondent Nos. 1, 3 and

4 is that defendant/respondent no.5 (Vimal Kumar Pandey),

being the full brother of respondent No. 2 (Binod Kumar

Pandey), executed another sale deed dated 22.06.1981 in respect

of 7 Kathas and 3.5 dhurs of land from the same plot numbers

623 and 625. This deed was in favour of defendant/respondent

Nos. 3 and 4, namely Asarfi Yadav and Vyas Yadav, who are full

brothers of defendant/ respondent No. 1. Thereafter, their names

were duly mutated in the government revenue records as the

owners of the purchased land. Thereafter, defendant/respondent

No. 2 sold the entire 12 Kathas and 9 Dhurs of land in favour of

the plaintiffs-appellants, Sanjay Kumar Pandey and Alok Pandey,

both sons of Daya Shankar Pandey, through a registered sale

deed dated 12.08.1981. It was alleged in the deed that the land

had been mortgaged in favour of defendant/respondent No. 1 by Patna High Court SA No.546 of 2010 dt.26-05-2025

the deed dated 15.04.1980, which was in fact a mortgage deed. It

is pleaded that neither defendant/ respondent No. 2 nor

defendant /respondent No. 5 filed their written statements, and

the suit proceeded ex parte against them. However, they later

appeared as witnesses in the suit on behalf of the respective

parties.

7. After going through the pleadings and carefully

considering the rival contentions advanced by the parties, the

trial court has framed eight issues for adjudication. The suit was

adjudicated based on both oral and documentary evidence

adduced by the parties in support of their respective cases. The

learned trial court decreed the suit partially in favour of the

plaintiffs, holding that they were entitled to redeem the suit land.

Accordingly, issues nos. 4 and 5 were decided in favour of the

plaintiffs. However, issues no. 6 and 7 were not decided in their

favour.The challenge to the sale deeds executed in favour of

Defendant Nos. 3 and 4 was left undecided due to the pendency

of consolidation proceedings, and holding the suit to have abated

as regards issue No. 6 pertaining to the validity of sale deeds

(Exts. A & A/1), the trial court decreed the suit partially in favour

of the plaintiffs, except issue No. 6.

8. Being aggrieved by the judgment dated 19.07.1991 Patna High Court SA No.546 of 2010 dt.26-05-2025

passed by the learned trial court, defendant/respondent No. 1

preferred an appeal, bearing Title Appeal No. 82 of 1991. The

plaintiffs, in turn, filed a cross-objection assailing the findings of

the trial court on issues nos. 6 and 7, specifically relating to the

abatement of the suit insofar as it related to the challenge against

the sale deeds executed in favour of defendant/respondent Nos. 3

and 4. After hearing the parties, the learned lower appellate court

framed a single point for determination in the Title Appeal,

specifically: Whether the disputed deed dated 15.04.1980

executed by defendant/respondent No. 2 in favour of

defendant/respondent No. 1 is a simple mortgage deed or a

mortgage by way of conditional sale?.

9. After analyzing the materials on record and the

submissions of the parties, the instrument dated 15-04-1980 was

construed as an absolute sale deed by the learned lower appellate

Court. The findings of the learned trial court were reversed, and

the judgment and decree of the trial court were set aside.

However, the cross-objection filed by the plaintiffs/appellants

was dismissed as not pressed. The present Second Appeal has

been filed by the plaintiffs-appellants against the aforesaid

judgment and decree of the learned Court of Appeal.

10. Learned counsel for the appellants submits that the Patna High Court SA No.546 of 2010 dt.26-05-2025

present case primarily relates to the redemption of a mortgage by

conditional sale dated 15.04.1980 (marked as Ext. 6 on behalf of

the plaintiffs and Ext. C on behalf of the defendants), executed

for a consideration of Rs.4,000/- in respect of 12 kathas and 9

dhurs of land recorded under Khata No. 184, Plot Nos. 623 and

625, by defendant No. 2 in favour of defendant No. 1.

Subsequently, by a sale deed dated 12.08.1981 (Ext. 1 and 1/A),

the mortgagor, defendant No. 2, sold the entire mortgaged

property to plaintiff Nos. 2 and 3, who were minors at that time,

through their father, plaintiff No. 1, for a consideration of Rs.

10,000/-. Accordingly, the plaintiffs, having purchased the

mortgaged property from its rightful owner, stepped into his

shoes and instituted the present suit for redemption. The only

issue in this Second Appeal, as mentioned above, pertains to

interpretation of true nature of the transaction described in

Exhibit C, especially when considered along with the

surrounding circumstances. The answer to this question is

crucial, as it will decide the outcome of the present appeal.

11.Before going into the arguments on this point, it is

important to first refer to the relevant part of Section 58(c) of the

Act, which defines a 'mortgage by conditional sale' which read

as follows:-

Patna High Court SA No.546 of 2010 dt.26-05-2025

"58. (c)Mortgage by conditional sale- Where the mortgagor ostensibly sells the mortgaged 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 mortgage 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."

12. Learned counsel for the appellants submits that, on a

plain reading of the recitals of Ext. C in its entirety, it is evident

that although the document is titled as a "Sale with a Condition

to Re-purchase," its true nature and substance is that of a

registered mortgage by conditional sale. The transaction satisfies

the essential conditions laid down under Section 58(c) of the

Act .Learned counsel for the appellants submits that on a plain

reading of the recitals of Ext. C in its entirety, it is evident that Patna High Court SA No.546 of 2010 dt.26-05-2025

although the document is titled as a "Sale with a Condition to

Re-purchase," its true nature and substance is that of a registered

mortgage by conditional sale. The transaction satisfies the

essential conditions laid down under Section 58(c) of the Act. It

is specifically stipulated in the document that upon repayment of

the mortgage amount, the purchaser (mortgagee) shall re-transfer

or reconvey the property to the original owner (mortgagor),

thereby fulfilling the proviso to Section 58(c).The entire

transaction is contained in a single registered document, with no

fixed time for repayment, allowing the mortgagor to redeem the

property even after 10 or 20 years by repaying only the original

mortgage amount of Rs. 4,000/-. This absence of time limitation

or additional consideration strongly indicates that the transaction

was intended as a mortgage, not a sale. Learned counsel for the

appellants further submits that if the parties intended an absolute

sale with a right to repurchase, a fixed time frame and a higher

repurchase price would have been specified. However, in the

present case, the consideration remained identical to the original

mortgage amount, and the obligation to restore possession upon

repayment further supports that the transaction is a mortgage by

conditional sale, not an absolute sale. Moreover, there exists a

clear liability to hand over possession upon redemption. Patna High Court SA No.546 of 2010 dt.26-05-2025

13. At the relevant time, the market value of the property

was significantly higher than the mortgage amount of Rs.4,000/-.

This is evident from the fact that within one year, the plaintiffs

purchased the land for Rs. 10,000/-, and the own brothers of

defendant/respondent No. 1, namely defendant/respondent Nos.

3 and 4, purchased half of the mortgaged property for about Rs

6,000/-. It is apparent from these sale deeds in favour of the

plaintiffs as well as defendant/respondent Nos. 3 and 4 that the

market value of the land in question was considerably greater at

the time of execution of the disputed deed. The transaction was

merely a mortgage and involved taking a loan of Rs. 4,000/- for

the entire property without any intention to sell it. Reference in

this regard may be made to a decision of the Hon'ble Apex Court

in the case of Ganpati Babji Alamwar & Ors. vs. Digambarrao

Venkatrao Bhadke & Ors., reported in (2019) 8 SCC 651.

Learned counsel further submits that the higher market value of

the property at the relevant time than the mortgage money is

indicative of the fact that the transaction is really a mortgage and

not a sale and is an important factor in judging the true nature of

the transaction. It is further submitted that although the deed

( Ext. C) granted mutation rights, both parties consistently

treated the transaction as a mortgage, not a Patna High Court SA No.546 of 2010 dt.26-05-2025

sale. Defendant/respondent No. 1, the mortgagee, did not get the

land mutated in his name based on the mortgage deed. The rent

receipts relate to the sale deed in favour of defendant/respondent

Nos. 3 and 4 for half of the lands, not in the name of

defendant/respondent No. 1 as mortgagee.The issuance of rent

receipts showing Defendant/Respondent No. 1 as mortgagee is,

therefore, incorrect and misleading.

14. It is further submitted that although the deed (Ext. C)

gave the right to get the land mutated, both parties treated the

transaction as a mortgage, not a sale. Defendant/respondent No.

1, who was the mortgagee, never got the land mutated in his

name based on this deed. The rent receipts shown are actually

based on the sale deed in favour of defendant/respondent Nos. 3

and 4 for half of the land, not for the full property, and not in the

name of defendant/respondent No. 1. Therefore, the argument

that the rent receipts prove ownership is misleading since those

were never issued in the name of defendant/respondent No. 1

and only relate to half of the property under a different sale deed.

As such, these receipts do not support the defendant's claim. It is

further contended that another significant aspect is that if the

entire property, i.e., 12 kathas 9 dhurs, had actually been sold, as

claimed by defendant/respondent No. 1, there would have been Patna High Court SA No.546 of 2010 dt.26-05-2025

no justification for his full brothers, defendant/respondent Nos. 3

and 4, to purchase half of the same property. Since the

transaction, as recorded in Ext. C, has never been challenged or

questioned through any suit or counterclaim, it is deemed to

apply to the entire 12 kathas 9 dhurs of land. Therefore, if

defendant/respondent No. 1's stand is that the deed was an

absolute sale, there would have been no occasion for his brothers

to again purchase a portion of the same land from the brother of

the mortgagor. This contradiction clearly goes against the

defendant's claim that it was a sale. Learned counsel for the

appellants places reliance in the case of Vithal Tukaram Kadam

& Anr. vs. Vamanrao Sawalaram Bhosale & Ors., reported in

(2018) 11 SCC 172 wherein the Apex Court, in paragraphs 14 to

17, has clearly held that a mortgage by conditional sale is an

ostensibly a sale with transfer of possession and ownership, but

containing a clause for reconveyance in accordance with Section

58(c) of the Act and such characteristics will clothe the

agreement as mortgage by conditional sale. The valuation of the

property and the transaction value along with the duration of

time for reconveyance are important considerations to decide the

nature of the agreement. These aspects have to be cumulatively

considered along with the conduct/ intention of the parties, the Patna High Court SA No.546 of 2010 dt.26-05-2025

recitals of the deed and other attending circumstances to judge

the true nature of the transaction. In the said judgment, the

document was styled as a sale deed but was ultimately

considered as mortgage by conditional sale. Further reliance has

been placed on the judgment in the case of Tulsi and Others vs.

Chandrika Prasad and Others, reported in (2006) 8 SCC 322,

particularly paragraphs 16, 17, 22, and 24. In this judgment, the

Hon'ble Supreme Court, while analyzing the true nature of a

transaction, held that in order to be a mortgage by conditional

sale, the transaction should be embodied in one document and

further in that case there was an important factor like in this case

the mortgagee/ transferee did not get itself mutated despite the

right of mutation given (Para 22 and 24). The re-

conveyance/retransfer was to be made for the same price, and the

transaction was incorporated in one document and the advance

of loan and return thereof being part of the same document

creates the relationship of debtor and creditor and would be

covered by proviso to Section 58 (c). This view has been taken

in the case of Bhimrao Ramchandra Khalate v. Nana Dinkar

Yadav (Tanpura) & Anr., reported in (2021) 9 SCC 45,

particularly in paragraphs 4, 5, 10-13, and 24-26. The Hon'ble

Supreme Court reiterated this view in Srinivasaiah v. H.R. Patna High Court SA No.546 of 2010 dt.26-05-2025

Channabasappa reported in (2017) 12 SCC 821 (paras 22-25).

This issue has been considered in a case where the transaction

was embodied in two document but executed on the same day

contemporaneously and even in that circumstances considering

the inadequacy of the price in the document as compared to the

market value, the Hon'ble Supreme Court held the transaction to

be mortgage by conditional sale. This principle was reiterated in

the case of Ramvilas and Another vs. Karim Khan & Another,

reported in (2017) 1 PLJR 212 (SC), particularly in paragraphs 5

to 11. Learned counsel for the appellants submitted that,

considering the aforesaid citations, it is evident that the parties

intended to create a mortgage only, not a sale deed. However,

the lower appellate court, while reversing the well-reasoned

judgment of the trial court, did not provide a properly reasoned

or substantiated order. Instead, it rendered a cryptic judgment,

recording mere conclusions without adequately considering the

facts, circumstances, and applicable legal principles, so much so

that it relied upon the decision reported in AIR 1962 Patna 53,

which lays down a law contrary to the laws as laid down by the

Hon'ble Apex Court in the decisions reported in (2018) 11 SCC

172, (2019) 8 SCC 651, and (2017) 1 PLJR 212 (SC), while the

decision of this Court has laid down that the intention of the Patna High Court SA No.546 of 2010 dt.26-05-2025

parties has to be ascertained from the document itself and not

from the surrounding circumstances, and further that inadequacy

of the price does not alter the nature of the transaction. This view

of this Court is patently perverse and runs contrary to the settled

law laid down by the Hon'ble Apex Court. It is further submitted

that the intention of the deed is to be gathered from the recitals

of the deed and the conduct of the parties, as has been held by

the Hon'ble Apex Court on the judgment in the case of B.K.

Muniraju vs. State of Karnataka & Ors., reported in (2008) 4

SCC 451 (Para 18).

15. The learned lower appellate court failed to consider

the fact that the document was called a "sale deed" for a specific

reason, which was clearly mentioned in the plaint. The parties

did this to avoid the effects of the Bihar Money Lenders Act, so

that the mortgagee would not lose his money after seven years

because of automatic redemption. However, both parties always

understood and treated the document as a mortgage by

conditional sale. So far as the relief concerning the challenge to

the sale deeds executed in favour of defendant nos. 3 and 4,

marked as Exts. A and A/1, is concerned, it was held to have

abated under the provisions of Section 4(c) of the Act. Against

this finding, a cross-objection/cross-appeal was filed, but the Patna High Court SA No.546 of 2010 dt.26-05-2025

same was dismissed as not pressed, as recorded in the impugned

judgment. Consequently, the present second appeal has been held

to be not maintainable on that count. Furthermore, it has been

observed that unless and until the said sale deeds are set aside or

declared illegal, no relief could be granted. The learned lower

appellate court also held that a separate appeal ought to have

been filed against the rejection of the cross-objection. However,

it is submitted that the challenge to the aforesaid sale deeds was

incorporated by way of amendment and did not constitute an

inseparable part of the original plaint seeking a decree for

redemption, especially considering that the purchasers under the

impugned sale deeds (defendant/respondent nos. 3 and 4) were

not the mortgagee (defendant/respondent no. 1), but rather

strangers to the mortgage transaction. In such circumstances, the

right of redemption, being a continuous and substantive right,

remains unaffected. It is a settled principle of law that "once a

mortgage, always a mortgage" and the right of redemption is

never extinguished except in accordance with law. Therefore, the

present suit for redemption is maintainable and can be decreed

irrespective of whether the subsequent sale deeds have been

assailed, set aside, or held valid. The cross-objection filed by the

appellants against the sale deeds marked as Ext. A and A/1 was Patna High Court SA No.546 of 2010 dt.26-05-2025

dismissed as not pressed. The said issue regarding the validity of

those sale deeds still open and has not attained finality. It is

significant to observe that the trial court did not uphold the sale

deeds as valid; rather, it held that the suit, insofar as it related to

those sale deeds, stood abated. Furthermore, the question of their

validity remains sub judice before the consolidation authorities,

and upon conclusion of the consolidation proceedings, the suit in

respect of the said sale deeds is liable to be revived for

adjudication.

16. As far as the question of abatement is concerned, it

relates to the suit having been abated in relation to the sale deeds

dated 22.06.1981 and if they are affected by Section 4(c), the

learned counsel for the appellants submitted that Section 4(c)

only contemplates abatement of a suit with reference to the date

of institution of the suit, and not with reference to the date of the

sale deeds. Moreover, the said provision does not affect the

validity of the sale deeds in any manner. Section 4(c) merely

puts the adjudication of the suit in abeyance by abating it upon

the commencement of consolidation proceedings, as has rightly

been done by the learned trial court. However, it does not render

the sale deeds void or illegal, as has been attempted to be argued.

The learned trial court has nowhere held that the sale deeds Patna High Court SA No.546 of 2010 dt.26-05-2025

marked as Exts. A and A/1 are invalid due to the pendency of

consolidation proceedings, to justify the contention that the

plaintiffs' sale deeds are similarly affected. The validity of the

plaintiffs' sale deeds has never been challenged in the suit

neither by way of counter-claim nor by filing a separate suit.

Learned counsel for the appellants further submits that the

plaintiffs' claim for redemption, is based on the contention that

the entire mortgaged property was exclusively allotted to

defendant/respondent no. 2 in the partition, and that therefore a

decree for redemption cannot be granted unless the partition is

proved, is wholly misconceived. The plaintiffs' case is that the

entire property was granted exclusively to defendant/respondent

no. 2 in the partition, and accordingly, he mortgaged the entire

property. The redemption claim is also made for the entire

property, not merely a portion thereof. Hence, there is no legal

impediment for granting a decree of redemption in respect of the

whole property to the plaintiffs. The plaintiffs seek redemption

of the whole property, not only for themselves but also for any

future holders of interest in it. This approach is both lawful and

justified. Had the redemption been sought only partially, or in

respect of an undivided or unspecified portion, the mortgagee

(defendant/respondent no.1) might have raised objections. Patna High Court SA No.546 of 2010 dt.26-05-2025

However, such grievances cannot be entertained in the present

case where the redemption is claimed for the entirety of the

property. Moreover, defendant/respondent no. 1 cannot be

allowed to represent or act on behalf of defendant nos. 3, 4, or 5,

because they have lost their right to challenge the mortgage deed

dealing with the entire property.

17. Per contra, Mr. J. S. Arora, learned senior counsel for

respondent nos. 1, 3, and 4, submitted that the plaintiffs-

appellants' main contention is that the land in question, claimed

to have been purchased from defendant/respondent no. 2, was

wholly allotted to him in a partition with defendant/respondent

no. 5 remained unproved, with no material brought on record to

support such a claim or to establish the illegality of the two sale

deeds dated 22.06.1981 executed by defendant/ respondent no. 5

in favour of defendant/ respondent nos. 3 and 4. These sale deeds

relate only to half of the disputed property and were executed

purportedly based on a partition, which has not been proven. It is

further submitted that the plaintiffs have sought reliefs in respect

of the sale deed dated 15.04.1980, contending that it ought to be

treated as a mortgage deed and that consequential reliefs be

granted accordingly. However, such relief cannot be granted

without first establishing the plaintiffs' title over the suit land. Patna High Court SA No.546 of 2010 dt.26-05-2025

Defendant/ respondent no. 3 and defendant/ respondent no. 4

purchased 7 kathas and 3.5 dhurs of land, about half of the suit

property through a sale deed dated 22.06.1981 from defendant/

respondent no. 5. Thereafter, defendant/respondent no. 2 sold 12

kathas and 9 dhurs of land to the plaintiffs-appellants through a

registered sale deed dated 12.08.1981. This sale deed is

subsequent to the sale deed in favour of defendant/ respondent

no. 3 and defendant/ respondent no. 4. Relief with respect to the

suit property cannot be granted without first holding that the sale

deeds dated 22.06.1981 in favour of defendant/ respondent no. 3

and defendant/ respondent no. 4 are illegal and that they are not

entitled to possession of the same. Learned senior counsel for the

respondents submitted that the plaintiffs have not sought a

declaration of their title over the suit land. Issue No. 4 was

rightly framed to determine whether the sale deed dated

15.04.1980 ought to be declared a deed of mortgage. Issue No. 5

related to whether the plaintiffs possess the right to redeem the

mortgage. Concurrently, Issues Nos. 6 and 7 were framed by the

trial court to examine the validity of the sale deeds dated

22.06.1981, specifically whether these deeds are forged and

inoperative, and whether they are rendered invalid under Section

4(c) of the Consolidation Act. It is further submitted that both Patna High Court SA No.546 of 2010 dt.26-05-2025

the courts below have failed to decide Issue Nos. 6 and 7, instead

holding that the same are barred by Section 4(c) of the

Consolidation Act. Consequently, the primary relief sought

remained undecided. Therefore, the grant of relief for

redemption of the mortgage and recovery of possession of the

suit property from the defendants would be wholly

impermissible and unwarranted, and such relief cannot be

granted to the plaintiffs-appellants. The learned trial court, while

considering Issue Nos. 7 and 8 relating to the sale deeds dated

22 and 23 June 1981, held that the relief sought in respect of

these two sale deeds could not be granted due to legal and

technical grounds, particularly in the light of the provisions of

Section 4(c) of the Act. Learned senior counsel further submitted

that the parties have admitted that a partition took place within

the family; however, there is a dispute between them regarding

the mode of partition.

18. It is alleged by the plaintiffs that the partition took

place in such a manner that the entire land of the plot in question

was allotted to defendant/ respondent No. 2. On the other hand,

defendant/ respondent No. 5 asserts that the plot was divided

equally, with half portion of the land allotted to defendant/

respondent No. 2 and the other half portion of the land allotted Patna High Court SA No.546 of 2010 dt.26-05-2025

to defendant/ respondent No. 5. This dispute regarding the mode

of partition could only have been challenged by defendant

/respondent No. 2, who, significantly, did not raise any such

challenge. The plaintiffs were not entitled to question the

partition, having no direct claim and holding a subsequent sale

deed dated 12.08.1981. It is further submitted that since a portion

of the suit land was purchased by defendant/respondent Nos. 3

and 4 from defendant/respondent No. 5 and has remained in

their possession, the plaintiffs are not entitled to recover

possession of that land unless and until the sale deed in favour of

defendant/ respondent Nos. 3 and 4 are declared illegal. It is

further submitted that the present suit is not one for declaration

with a consequential relief of injunction. Relief No. 1A in the

plaint represents the main and substantive relief, as the

cancellation of the sale deeds dated 22.06.1981 was essential for

granting the relief of redemption of mortgage under Relief No.

1A. Therefore, in the present case, Relief No. 1A stands as the

principal relief sought by the plaintiffs. Reliance has been placed

on the judgment in the case of Padhiyar Prahladji Chenaji vs.

Maniben Jagmalbhai & others reported in (2022)12 SCC 128,

wherein the Hon'ble Apex Court has observed that "main reliefs

sought by the plaintiff in the suit were cancellation of the sale Patna High Court SA No.546 of 2010 dt.26-05-2025

deed and declaration and the prayer of permanent injunction

restraining Defendant 1 from disturbing her possession can be

said to be a consequential relief. Therefore, the title to the

property was the basis of the relief of possession. If that be so,

in the present case, the relief for permanent injunction can be

said to be a consequential relief and not a substantive relief as

observed and held by the High Court. Therefore, once the

plaintiff has failed to get any substantive relief of cancellation

of the sale deed and failed to get any declaratory relief, and as

observed hereinabove, relief of injunction can be said to be a

consequential relief". The Hon'ble Apex Court further

observed in para 25 of the said judgment that "an injunction is

a consequential relief and in a suit for declaration with a

consequential relief of injunction, it is not a suit for declaration

simpliciter, it is a suit for declaration with a further relief."

19. Reliance has also been placed on the judgment of the

Hon'ble Apex Court in the case of Shiv Kumar & Anr. v. Union

of India & Ors., reported in (2019) 10 SCC 229 (para 22),

where the Court observed that "a person cannot claim the land

or declaration once no title has been conferred upon him to

claim that the land should be given back to him. A person cannot

enforce and ripe fruits based on a void transaction to start Patna High Court SA No.546 of 2010 dt.26-05-2025

claiming title and possession of the land by seeking a

declaration under Section 24 of the 2013 Act (the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013), it will amount to

conferment of benefit never contemplated by the law."

20. Upon analyzing the materials on record and the

impugned judgments, this Court finds that the present suit was

originally filed for a declaration that the registered document

dated 15.04.1980, executed as a conditional sale, is in fact a

mortgage deed. The plaintiffs prayed for a direction commanding

defendant/ respondent No. 1 to accept Rs. 4,000/- as mortgage

money and redeem the said mortgage within a stipulated time by

executing a re-conveyance deed (Wapsinama) as per the terms

set out in the original mortgage deed dated 15.04.1980, and to

hand over possession of the suit property to the plaintiffs. The

plaintiffs also prayed that, if the defendants failed to comply, the

court to ensure execution of the re-conveyance deed after deposit

of the mortgage amount. Thereafter, by way of amendment,

Relief 1A was incorporated into the plaint, wherein the plaintiffs

challenged the sale deeds dated 22.06.1981, executed by

defendant/ respondent No. 5 in favour of defendant/respondent

Nos. 3 and 4, as illegal, fraudulent, inoperative, and not binding Patna High Court SA No.546 of 2010 dt.26-05-2025

upon them. A cross-objection/cross-appeal was filed against this

finding; however, it was dismissed as not pressed, as recorded in

the impugned judgment. Consequently, the suit now stands

confined only to the original relief.

21. On 01-03-2017, at the time of admission of the present

second appeal, a substantial question of law was framed, namely:

"whether the document in question (Ext. C) constitutes a

transaction of mortgage or a transaction of sale."

22. The plaintiffs' claim is that the registered deed dated

15.04.1980, though described as a conditional sale (wapsinama),

was, in effect, a mortgage. This contention was answered in

favour of the plaintiffs by the learned Trial Court, which held

that the transaction was, in fact, a mortgage and not an absolute

sale. However, this finding was reversed by the learned Lower

Appellate Court, which construed the instrument dated

15.04.1980 as an absolute sale deed and accordingly set aside the

judgment and decree passed by the learned Trial Court.

23. A complete reading of the document, particularly Ext.

C, in the light of Section 58(C) of the Act, shows that upon

payment of the mortgage money, the buyer/mortgagee is

required to transfer/sell back/reconvey the property to the

mortgagor. It is also apparent from the document that the entire Patna High Court SA No.546 of 2010 dt.26-05-2025

transaction is embodied in a single registered document, wherein

no specific time frame has been provided for the repayment of

the mortgage money. This grants the executant the liberty to

repay the mortgage money whenever arranged, without the

option to pay an amount exceeding the mortgage money, as the

defendants agreed to reconvey the property at the same price.

The valuation of the property and the transaction value along

with duration of time for reconveyance are important

considerations to decide the nature of the agreement. There will

have to be a cumulative consideration of these factors, along

with the recitals in the agreement, intention of the parties,

coupled with other attendant circumstances, considered in a

holistic manner. This view has been taken in the case of Vithal

Tukaram Kadam (supra). In another judgment, in the case of

Bibi Fatima & Ors. v. M. Ahmad Hussain & Ors., reported in

(2017) 11 SCC 832, the Hon'ble Supreme Court held that 'the

question whether a transaction is a mortgage by conditional sale

or a sale with a condition of re-purchase has to be decided on

the basis of the interpretation of the document itself. The

intention of the parties is the determining factor. The intention

has to be gathered, in the first place, from the document."

Moreover, the consideration amount being lesser than the market Patna High Court SA No.546 of 2010 dt.26-05-2025

value is another circumstance by which the document can be

treated as a mortgage by conditional sale.

24. It is evident from the records, specifically Exhibits A

and A/1, that half of the suit property was purchased by

defendant/respondent Nos. 3 and 4 for a consideration of Rs.

6,000/- about a year later. It is also apparent that defendant no.

1, the mortgagee, did not get his name mutated in the

government revenue records based on the said mortgage deed.

Furthermore, it is undisputed that only one document was

executed on 15.04.1980.The proviso to Clause (c) of Section 58

of the Transfer of Property Act, 1882, was inserted by Section 19

of the Transfer of Property (Amendment) Act, 1929 (Act XX of

1929). The proviso was introduced in this clause only to set at

rest the controversy about the nature of the document; whether

the transaction would be a sale or a mortgage. It has been

specifically provided by the amendment that the document

would not be treated as a mortgage unless the condition of

repurchase was contained in the same document by which the

mortgage was created. In view of the proviso to Section 58(c) of

the Transfer of Property Act, the document should be construed

as a mortgage.

25. A close scrutiny of the above-mentioned judgments of Patna High Court SA No.546 of 2010 dt.26-05-2025

the Hon'ble Apex Court would make it clear that the title given

to a document is not conclusive in determining the nature of the

document. The real intention of the parties has to be inferred by

taking into consideration the recitals of the document along with

other attending circumstances, especially when there is an

ambiguity. Ext. 6 / Ext. C would suggest that the document was

styled as a conditional sale by the parties.

26. On perusal of the document, it would suggest that

there is a recital in the document as if a conditional sale deed

was executed by Defendant No. 2 to Defendant No. 1 for a sale

consideration of Rs. 4,000/-. However, the document proceeds to

say that the seller would repay the very same consideration

whenever arranged, without the option to pay an amount

exceeding the mortgage money, as the defendants agreed to

reconvey the property at the same price. The purchaser can enjoy

the property during the said period till the repayment. The

market value of the suit property was Rs. 10,000/-, as stated

above. When the market value of the suit property was Rs.

10,000/-, what was the necessity for Defendant No. 2 to sell the

same to Defendant No. 1 for Rs. 4,000/- was not explained.

When the property was sold for a meagre sum well below the

market value, it certainly leads to a conclusion that the Patna High Court SA No.546 of 2010 dt.26-05-2025

transaction was a mortgage. It is an admitted fact that Defendant

No. 1, even after execution of Ext. 6 / Ext. C in the year 1980,

till the filing of the suit in the year 1985,nearly five years, there

was no mutation of revenue records in favour of Defendant No.

1. All these attendant facts, with the recital in the document that

the purchaser could enjoy the property till the repayment of

consideration money, compel this Court to come to the

conclusion that the parties intended to treat Ext. 6 / Ext. C as a

mortgage transaction, and the same cannot be treated as a sale

deed with a condition for reconveyance, even though it was

styled as Baynama Bashart Wapsi.

27. Accordingly, the substantial question of law

formulated in this case is answered in favour of the appellants.

28. Insofar as the suit relates to the sale deeds marked as

Exhibits A and A/1, the matter stands abated, and the validity of

these documents will be determined upon publication of a

notification under Section 26A of the Consolidation Act. It is

relevant to note that the validity of the plaintiffs' sale deed was

never challenged in the present suit, either by way of a

counterclaim or through a separate suit.

29. In view of the discussions made hereinabove, this

Court is of the considered opinion that the judgment and decree Patna High Court SA No.546 of 2010 dt.26-05-2025

dated 02.05.2009 passed by the learned 2nd Additional District

and Sessions Judge, West Champaran, Bettiah, in Title Appeal

No. 82 of 1991, whereby the appeal filed by defendant no. 1 was

allowed and the plaintiffs' suit for redemption was dismissed, is

not sustainable in law and on facts.

30. Accordingly, the impugned judgment and decree dated

02.05.2009 are set aside. Consequently, the judgment and decree

dated 19.07.1991, passed by the learned 1st Additional Munsif,

Bettiah, in Title Suit No. 80 of 1985, are restored and affirmed.

31. In the result, the appeal succeeds and is allowed.

32. There shall be no order as to costs.

33. Pending interlocutory application(s), if any, stand

disposed of.

34. Let the lower court records be transmitted to the Court

below forthwith.

(Khatim Reza, J)

shyambihari/-

AFR/NAFR                AFR
CAV DATE                16-01-2025
Uploading Date          26-05-2025
Transmission Date