Atul Gupta vs Parshotami Devi & Others

Chander Bhusan Barowalia, J.

The present regular second appeal is maintained by the appellant, who was defendant No. 2 before the learned trial Court (hereinafter to be called

as “defendant No. 2â€), laying challenge to the judgment and decree, dated 10.11.2017, passed by learned Additional District Judge, Hamirpur,

H.P., in Civil Appeal No. 109 of 2013, whereby the judgment and decree, dated 29.07.2013, passed by learned Civil Judge (Sr. Div.), Court No. 1,

Hamirpur, H.P, in Civil Suit No. 123 of 2008, was affirmed, wherein suit of the plaintiffs was decreed with costs.

Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that respondents No. 1 to 4/plaintiffs

(hereinafter to be called as “the plaintiffsâ€) filed a suit for possession by way of redemption on payment of mortgage money to the tune of Rs.

5,000/-, qua two shops comprised in Khata No. 501, Khatauni No. 1001, Khasra No. 3079/649 and 3081/650 Kita 2, measuring 22.93 square meter,

situated in Up-Mahal Shiv Nagar, Tappa Bajuri, Tehsil and District Hamirpur, as per jamabandi for the year 2003-04 (here-inafter to be called as the

“suit shops/property/landâ€). As per the plaintiffs, they are owners of the suit property and the suit shops were constructed by their ancestor over

Khasra No. 3079/649, which on north are surrounded by M.C. Path, on south by shop of Prem Lal, on east by PWD road and on west by their own

house. Each shop is measuring 9’ x 22’ and are subject matter of the mortgage, which against mortgage amount to the tune of Rs. 5,000/-

vide Rapat Rojnamcha, dated 10.06.1993 were mortgaged by Shri Lal Chand in favour of defendant No. 1, Smt. Amravati. Defendant No. 1 during

subsistence of mortgage inducted defendant No. 2, as tenant in shop No. 2 and is in possession of shop No. 1. Thus, the plaintiffs are entitled for

decree of possession against defendant No. 2 also. Though the plaintiffs offered mortgage amount of Rs. 5,000/- to the defendants and asked them to

redeem the mortgage property, but in vain, hence they filed the present suit.

Defendant No. 1, in her written statement admitted the facts alleged in the plaint as a whole. However, in written statement filed on behalf of

defendant No. 2, objection qua maintainability, estoppel etc. have been raised. On merits, the revenue entries have been denied and it has been

averred that the suit property was previously owned by Lal Chand and after his death, it was inherited by the plaintiffs. The factum with regard to the

mortgage has been denied for want of knowledge, however it has been averred that in case there is a mortgage, it is merely a paper transaction

nothing else. As per defendant No. 2, defendant No. 1 is real sister of Lal Chand. The site plan produced by the plaintiffs has also been denied

alongwith its specification and dimension. As per defendant No. 2, on 30.11.1992, his father took one shop on rent from Lal Chand at the rate of Rs.

1,000/- per month and an amount of Rs. 12,000/- by way of cheque No. 0062481 was paid as advance rent to him, which was duly received by him.

On 01.07.1994 a further amount of Rs. 1,000/- as rent was paid to Lal Chand, vide cheque No. 326022. It has been further averred in the written

statement that the entry in the revenue record qua mortgage is wrong and illegal and as the tenancy is prior to alleged mortgage, defendant No. 2 is

entitled to continue the same even after redemption. As per defendant No. 2, the rent during the year 2000 was enhanced from Rs. 1100/- to Rs.

1300/- and since 05.03.2008, the rent is Rs. 1500/- per month and, therefore, the premises are in continuous possession of the replying defendant since

1992. Though, Amravati is not admitted to be a mortgagee, even then tenancy is valid and binding as was an act of good management and prudence

created for the purpose of managing the same. Lastly, defendant No. 2 prayed for dismissal of the suit with costs.

By filing replication, the contents of the plaint were reiterated. The learned trial Court on 24.01.2009 framed the following issues for determination

and adjudication:

“1. Whether the plaintiff is entitled for the decree of possession by way of redemption of suit land? OPP

Whether the predecessor in inter-est of plaintiff Lal Chand has mort-gaged the shop with Amrawati for the consideration of Rs. 5,000/-? OPP

Whether the suit of the plaintiff is not maintainable as the defendant No. 2 is tenant previously under Lal Chand even prior to mortgage? OPD

Whether the mortgage is proper transaction to vacate the posses-sion by the defendants? OPD

Whether the plaintiff is estopped by her own act and conduct from filing the present suit? OPD

Whether the defendants are ten-ants and are paying rent @ Rs. 1000/- from 30.11.1992, Rs. 1100/- from 2.08.2000, Rs. 1300/- from 2.8.2000 and

Rs. 1500/- from 5.3.2008? OPD

Whether the suit of plaintiff is li-able to be dismissed with special costs? OPD

Relief.â€​

After deciding issues No. 1 & 2 in affirmative, issue No. 6 partly yes and issues No. 3 to 5 and 7 in negative, the suit of the plaintiffs was decreed.

Subsequently, defendant No. 2 maintained an appeal before the learned first Appellate Court, which was dismissed and the findings recorded by the

learned trial Court were upheld. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of

law:

“1. Whether the impugned judgment and decree is vitiated being against the express provisions of Section 59 of Transfer of Property Act and Sec-

tion 17 of the Registration Act?

Whether the findings returned by learned Courts below on issue No. 2 are perverse being without any legal evidence to prove existence of any legal

and valid mortgage?

Whether the first Appellate Court has misread, misinterpreted and misconstrued the oral as well as documentary evidence of the parties especially

the statements of DW-1 to DW-3 and Ex. DW1/A to DW1/D, which has materially prejudiced the entire case of the plaintiffs/appel-lants?

Mr. Satyen Vaidya, learned Senior Counsel appearing on behalf of the appellant has argued that the mortgage was a sham mortgage made by the

brother, Lal Chand in favour of his sister, Amravati, which is evident from the fact that the shop earning rent of Rs. 1,000/- per month was mortgaged

for Rs. 5,000/- only. He has further argued that the mortgage was only made in order to defeat the rights of the tenant, which are granted to him

under the H.P. Urban Rent Control Act, a social legislation. He has argued that the mortgage was required to be registered under Section 59 of the

Transfer of Property Act, however it was not registered under the said Act. He has further argued that Amravati has never stepped in the witness

box to prove her version. He has brought to the notice of this Court the statement of DW-2, wherein land was on tenancy with defendant No. 2 prior

to the mortgage from the mortgagor. Lastly, he prayed that the present appeal may be allowed and judgment and decree passed by the learned Court

below be set aside.

On the other hand, Mr. Ajay Sharma, learned counsel appearing on behalf of respondents No. 1 to 4 has argued that the mortgage is admitted by

defendant No. 2 and he could not say now that he was not a tenant of the mortgagee, as he has himself produced on record the receipt of the rent

issued by the mortgagee. He has further argued that when the mortgage come to an end, the tenant of the mortgagee is bound to go. He has argued

that in the receipts of 1993, it is Puran Chand, who is shown as owner, which is not correct, so the documents could not be relied into. He has further

argued that so called cheque of Rs. 12,000/- which the defendant stated to have given to Lal Chand, as a rent of one year, has not been proved on

record.

In rebuttal learned Senior Counsel appearing on behalf of the appellant has argued that the cheque is proved on record, as it was issued to Lal

Chand as one year rent, therefore, the appellant is a tenant of the Lal Chand and in these circumstances also, he could not be allowed to vacate the

shop, as he was tenant of the mortgagor before the mortgage.

In order to appreciate the rival contentions of the parties, I have gone through the record carefully.

To prove its case, the plaintiff, Ajay Kumar, has stepped into the witness box as PW-1 and stated that his father Lal Chand had mortgaged the suit

property with Amravati during his lifetime for a sum of Rs. 5,000/-. He has further stated that on the suit land, two shops were constructed by his

father, each measuring 22 x 9 feet. He has stated that after mortgage, defendant No. 1 came in possession over the suit property and she thereafter

rented the suit property to defendant No. 2, Atul Gupta. He has produced on record the spot map, Ext. PW-1/A and has alleged that they had

requested defendant No. 1 to redeem the mortgage, but she refused to do so, hence present suit was filed. He has further deposed that one shop is in

possession of defendant No. 1, while shop No. 2 is shown in possession of defendant No. 2. He has also produced on record, Jamabandi, Ext. P-1,

Rapat, Ext. P-2 and mutation, Ext. P-3.

On the other hand, defendants have examined DW-1, Pratap Singh, Superintendent, Post Office Hamirpur, who proved on record the certificate,

Ext. DW-1/A, issued by his office. He also proved the copy of saving account, Ext. DW-1/B, issued by his office in the name of Puran Chand. As per

this witness, the cheque, Ext. DW-1/C for Rs. 12,000/- was issued in favour of Lal Chand and the payment was made as per counter foil, Ext. DW-

1/D.

DW-2, Subhash Chand, Shop Inspector, has deposed that as per his register, at Sl. No. 659, registration No. 928, M/s Shimla General Store has

been registered from 30.03.1993 and the same has been renewed up to 2015.

DW-3, Rajinder Singh, Clerk, Municipal Council Hamirpur has brought the house tax record for the year 1993-94, where at Sl. No. 43, on the

property of Lal Chand, Prem Chand sons of Durga Dass, tenants Vijay Panchal, Puran Chand etc. have been entered. The rent being paid by Puran

Chand is Rs. 1,000/-. Earlier his shop was in Ward No. 6, however in 2010-11, the same was in Ward No. 5. Puran Chand was tenant till 2004-05 and

thereafter Atul Gupta, defendant No. 2 was mentioned in the entry.

DW-4, Puran Chand, has deposed that he retired from Shimla Post Office in 1992 and in November, he took the shop on rent from Lal Chand at

the rate of Rs. 1,000/- per month and paid an advance of Rs. 12,000/-though cheque, Ext. DW-1/B. He has produced on record the counter foil of the

cheque book and stated that defendant No. 2 is his son. He further deposed that the shop is being run by him, as well as defendant No. 2 in the name

of Shimla General Store.

DW-5, Atul Gupta, has deposed that the shop in question was taken on rent in the year 1992 from Lal Chand and one year advance rent of Rs.

12,000/- was paid to him, which was received by him on 01.07.1994. He further deposed that Rs. 1,000/- per month was also paid as rent till the year

2000, thereafter Rs. 1100/- per month, Rs. 1300/- per month till 2002 and Rs. 1500/- per month in the year 2008. He produced on record the receipts

of payment of rent Ext. DW-5/A-1 to Ext. DW-5/A-155.

From the above mentioned material which have come on record, the following facts are abundantly clear:-

(a) Lal Chand constructed the shops on the land, owned by him.

(b) The shop was on rent with defendant No. 2 at the rate of Rs. 1,000/- per month and Rs. 12,000/- was paid as advance rent, though as per

defendant No. 2 this advance rent was paid to Lal Chand, but it is disputed.

(c) The shop was mortgaged by Lal Chand in favour of his sister, Amravati for Rs. 5,000/-

After analyzing the aforesaid facts, I have to interpret the mortgage, as alleged to be created, whether it is a real mortgage or sham mortgage and

thus, the following points are emerges for consideration:

(I) Mortgage of property earning more than Rs. 1,000/- per month for Rs. 5,000/- as usufructuary mortgage is itself a sham mortgage.

(ii) The mortgage without any necessity shows that it is a sham mortgage.

(iii) The induction of the tenant in the shop, mortgaged when the H.P. Urban Rent Control Act applies in the area is a sham mortgage, as only object is

to take away the right of tenant, not to be evicted under the Transfer of Property Act.

(iv) Mortgage by brother, in favour of his real sister without necessity itself shows that it is a sham mortgage.

To give a deep thought, this sham mortgage was entered into by the brother in favour of his real sister without any reason or necessity just for Rs.

5,000/- as a usufructuary mortgage. The shop is given on rent and as per the disputed facts, one year advance rent is taken by the mortgagor-brother

from the father of defendant No. 2.

This Court has gone through the basic structure of the Constitution of India, which reads thus: Preamble

“We the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its

citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to

promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation; In our constituent assembly this

twenty sixth day of November, 1949, do hereby adopt, en act and give to ourselves this Constitution.â€​

Meaning thereby that the spirit of the Constitution is to bring socialistic pattern in the society, which has spirit to impart social justice to the people of

this Country and to meet out this obligation, the Himachal Pradesh Urban Rent Control Act, 1987 was enacted with the sole objective of guarding the

interest of the tenants in the urban areas. The basic object of the Act reads as under:

“with the exodus of the rural population into the cities with temptations of seeking better jobs or employment gave rise to unending de-mand of

housing in urban areas. The houses became scarce and demand on the other hand kept on rising leading to inconvenience to the public at large. Being

a welfare State, there arose the necessity to enact rent laws by our legislators so as to harmonies the inter-se rela-tions between the landlords and

tenants so that none should take undue advantage of the other. It imposed the restrictions on the right of the landlord under the general law of the

Transfer of Property Act, 1882 to terminate the tenancy of the tenant and seek his eviction.

This Court finds that the mortgage was entered into to take away the advantage granted to the tenant i.e. (should not be evicted as per the

provisions contained in the Transfer of Property Act in the urban areas), which cannot be allowed.

This Court further finds that the mortgage is a sham mortgage, as it was not for insufficient consideration and between real brother and sister and

only to take away the rights of the tenant, granted to the him under the H.P. Urban Rent Control Act. So, substantial question of law No. 1 is

answered holding that the learned Court below has failed to take into consideration the fact that the the mortgage was a sham mortgage and

accordingly Section 59 of the Transfer of Property Act, as well as Section 17 of the Registration Act are not properly taken into consideration. The

mortgage was nothing but a sham mortgage to deprive the defendant/tenant from the protection granted to him under the H.P. Urban Rent Control

Act. As far as substantial question of law No. 2 is concerned, the same is answered holding that the findings returned by the learned Courts below on

issue No. 2 are perverse and thus liable to be set aside. Similarly, substantial question of law No. 3 is answered holding that the learned Courts below

have failed to give proper interpretation to the evidence and documents which have come on record and so the findings are perverse.

This Court while answering substantial questions of law, concludes from the facts which have come on record that no person in this Country can

be allowed to take away the benefit of rights from the innocent citizens of India, accrued to them under the social legislation enacted by the legislature

to meet the basic structure of the Constitution of India, howsoever intelligent, clever and powerful that may be.

In view of the aforesaid discussion, the present appeal is allowed and the judgments and decrees, passed by the learned Courts below are set

aside. However in the peculiar facts and circumstances of the case, parties are left to bear their own costs.

The appeal, so also pending application(s), if any, stand(s) disposed of accordingly.