Gopal Chandra Samanta vs Ranjit Pandit

Asim Kumar Ray, J.—Being aggrieved by and dissatisfied with the judgment and decree dated September 18, 1993 passed in Title Appeal No. 2 of 1992 by learned Assistant District Judge, Arambagh affirming the judgment and decree dated 30th November, 1991 passed in Title Suit No. 63 of 1988 by learned Munsif, First Court, Arambagh this appeal has been preferred. Plaintiff/respondent initiated the title suit stating that he acquired the suit property by way of gift from his ''Bhiksha Mata'', Renuka Bala Roy on 14th May, 1959. Defendant/appellant lent a sum of Rs. 5,000/- to him. It was stipulated that the plaintiff would execute a sale deed in respect of the suit property in favour of the defendant and at the same time the defendant would execute an Ekrarnama for re-conveyance of the suit property. It was agreed that the defendant would enjoy the usufruct of the property for three years from Shraban 1388 B.S. to Ashar 1392 B.S. against interest and would retransfer it to the respondent if he repaid the consideration money within five years next after the said period of three years. Accordingly sale deed and Ekrarnama were executed by the parties concerning the suit property. The plaintiff after the month of Ashar 1392 B.S. approached the defendant on several occasions for retransfer of the suit property after taking back the loan amount but in vain. Hence the suit was instituted.

The defendant took out a case that the suit property was sold to him by the plaintiff and there was no agreement for retransfer of the same to the plaintiff. It was his further case that alleged deed of agreement for retransfer was executed only to defeat the case of other co-sharers to pre-empt the suit property. So he prayed for dismissal of the suit.

The trial Court passed the judgement and decree in favour of the plaintiff. Defendant challenged it by preferring an appeal which was affirmed by the judgment and decree dated September 18, 1993 passed by the First Appellate Court at Arambagh. In the aforesaid background this is the second appeal before this Court.

By entertaining the appeal this Court by an order dated January 21, 1994 expressed that the appeal will be heard on ground Nos. 1, 2 and 4 of the memo of appeal as the same rise substantial questions of law. The aforesaid three grounds are placed hereunder:

For that the specific defence of the defendant appellant being that there was practice of fraud so far as Exhibit 2 was concerned the learned Munsif should have framed an issue on the question so raised and as such the learned Court of Appeal below erred in law in not considerating the prejudice caused to the appellant in the absence of such issue.

For that a suit of specific performance of contract is maintainable only when the stipulated date mentioned in the contract expires but not before that since the cause of action would only arise at the failure of the parties to honour the contract and such being the position the learned court of appeal below erred in law in not dismissing the suit as not maintainable;

For that the materials on record having pointed out that the defendant-appellant would receive the interest from the pond in question by exercising right to catch fish, the suit as framed was not maintainable inasmuch as the first transaction was an usufructary mortgages with the right to redeem and as the learned courts below erred in law in decreeing the suit.

At the time of hearing appeal additional substantial questions of law were formulated by an order dated July 8, 2013 and the same are placed hereunder:

I. Whether the suit ought to have been dismissed in view of the bar contemplated under S. 58(c) of the Transfer of Property Act.

II. Whether the suit for Specific Performance is maintainable in view of no declaration under the Bengal Money Lenders Act having been sought to the effect that the transaction in question was a loan-in-substance.

III. Whether the suit is maintainable in the absence of any pleading and proof as to the readiness and willingness of the plaintiff to perform his part of the contract, which is mandatorily required u/s 16(c) of the Specific Relief Act.

Mr. Sabyasachi Bhattacharjee, learned advocate appearing for the appellant has contended that an issue on the question of practice fraud so far as Ext. 2 was concerned have not been framed though it was mandatory. Non-framing of issue on fraud is fatal to this.

He has contended further that the plaintiff had no cause of action. The deed of sale and Ekrarnama/deed of re-conveyance were executed in the year 1982. The time limit for execution of the deed of re-conveyance was upto 1990 but the suit was filed in the year 1988. The suit being filed in premature state was not maintainable. The case being a case of usufructary mortgage the respondent cannot file a case for specific performance of contract. The plaintiff had an alternative relief as per Section 62 of the Transfer of Property Act. Section 58(c) of the Transfer of Property Act and Section 37(a) of Bengal Money Lenders Act stood on the way of initiation of the suit by the plaintiff. There was no averment in the plaint regarding readiness and willingness which is mandatory. The absence of such pleading was fatal to the suit.

Mr. Bhattacharjee has relied on decisions reported in a) Jatindra Nath Das Vs. Jadaram and Another, , b) Bal Krishna and Another Vs. Bhagwan Das (Dead) and Others, and c) Raj Kishore (Dead) By L.Rs. Vs. Prem Singh and Others,

Mr. Gopal Chandra Ghosh, learned advocate appearing for the respondent has contended that the suit was filed as per the spirit of Ext. 2-- Ekrarnama. He has invited my attention to paragraph 2, 3 and 4 of the plaint wherein the Ekrarnama has been dealt with. He has also invited my attention to the written statement and has contended that there was no specific denial. There was no question of prejudice of the appellant for non-framing of issues on fraud. Non-framing of issue on fraud is not fatal.

There is concurrent finding of fact regarding readiness and willingness. There is specific pleading too that the respondent being plaintiff deposited Rs. 5,000/- in Court as per demand of Ext. 2--Ekrarnama and as such non-incorporation of clause as to readiness and willingness is not fatal. He contended further that it is not a case of mortgage by conditional sale and if it was such then Section 58(c) and 62 of the Transfer of Property Act had the scope to come into play. The Courts below have decided that the suit was maintainable as the appellant did not agitate that issue. Therefore the filing of suit for specific performance of contract instead of seeking relief u/s 62 of the Transfer of Property Act claiming that the suit was not maintainable cannot be agitated at this forum in second appeal. The original deed of sale - Ext. A/3 is silent about any mortgage or any loan transaction. Under such circumstances the question of attraction of Section 58(c) and 62 of the Transfer of Property Act in this case does not arise. In written statement the appellant has taken a case that he was asked through deed writer to execute a deed to avoid pre-emption but in evidence he has stated that the respondent asked him to execute the said deed. The deed of sale and the Ekrarnama were executed on the same date though the respondent as witness has stated that he signed on the Ekrarnama after three days of the execution of the sale deed.

Mr. Ghosh has relied on the following decisions a) Smt. Katya Bala Dasi and Another Vs. Nilmoni Pakhira and Others, b) Dagadu Bapu Shinde Vs. Vasant Shankar Nimbalkar, c) Veerayee Ammal Vs. Seeni Ammal, d) R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, by his legal representatives & Ors.), e) K. Simrathmull Vs. S. Nanjalingiah Gowder, and f) Mushir Mohammed Khan (Dead) By LRS. Vs. Smt. Sajeda Bano and Others,

Mr. Bhattacharjee in reply has contended that not pressing an issue before the lower Court cannot debar the appellant to agitate it if the same raises a question of law. The case of the respondent was a case of loan transaction but not an out and out sale.

Respondent as plaintiff initiated the title suit No. 63 of 1988 praying for specific performance of contract. The suit revolves around the agreement of re-conveyance executed and registered on 1-4-1982. The appellant/defendant alleged that the agreement/ekrarnama is a forged document. It was obtained by the respondent/plaintiff by practising fraud upon him. His further case was that the agreement was executed by him to avoid preemption by co-sharers. Mr. Bhattacharjee contended that an issue on the question of alleged fraud so far Ext. 2/Ekrarnama was concerned has not been framed and as a result the respondent/plaintiff has been prejudiced.

The deed of agreement in question is Ext. 2. It is a registered instrument. Plaintiff as his witness No. 1 has stated about the said agreement, its execution and registration. Plaintiff witness No. 2 and 4 Sitala Prasad Basu and Nemai Chandra Pandit respectively have corroborated the oral testimony of p.w.1. The trial Court has discussed the evidence of defendant/d.w.1 and on scrutiny of the evidence of other witnesses of the defendant has expressed that the oral testimony of d.w.1 have not been corroborated by his other witnesses. The d.w.1 has stated that he signed on Ext. 2 on being reported by plaintiff that such document was to be executed for defeating the exercise of right of pre-emption by other co-sharers. It is the testimony of the defendant as d.w.1 that he signed on the agreement 2-3 days after registration of the sale deed. The sale deed has been marked as Ext. A(3). It appears from Ext. A(3) and Ext. 2 that both the documents were presented in the office of registrar for registration on the same date i.e. 13th April, 1982.

Admittedly no issue of fraud in respect of Ext. 2 was framed. On perusal of the judgment of the learned trial Court it transpires that the question of fraud in respect of Ext. 2 has been elaborately dealt with in the body of the judgment vide page No. 6 to 9 of paper book. The first appellate Court has also covered the said point. It is seen from the judgment of the first appellate Court that in the memo of appeal it was not taken that the Trial Court has dealt with the question of fraud as alleged in the written statement without framing any specific issue to that effect. Now before this Court in second appeal non-framing of issue on alleged fraud in respect of Ext. 2 has been covered in the memo of appeal. The said point is ground No. 1 of the memo of appeal. The first appellate Court has also discussed the point of fraud in the body of the judgment in details vide page No. 22 to 26 of the paper book. It has been categorically held by the first appellate Court that it cannot be said that in the absence of a specific issue on fraud there occurred a mistrial vitiating the proceeding or it is fatal to the case. It was observed that there was no use to send back the suit on remand only on that ground.

Mr. Bhattacharjee has relied on the decision reported in Jatindra Nath Das Vs. Jadaram and Another, wherein the Court observed:

In the instant case, allegations of fraud have been made in the written statement. But no specific issue has been framed on such allegations of fraud and the courts below have dealt with the question of fraud as alleged. Such determination without any proper issue is not only unjustified and improper but the same is contrary to the principles of and the object of framing issues before the parties to a proceeding enter into the trial.

Per contra, Mr. Ghosh has relied on the decision reported in Smt. Katya Bala Dasi and Another Vs. Nilmoni Pakhira and Others, , wherein the Court observed:

Parties to the proceedings went to the trial, with full knowledge of each others case and that being the position, the non-framing of such additional issue as claimed, even if the same was necessary, has not caused any prejudice to any of the parties to the proceedings and they had in fact, received all and every opportunities to establish their respective cases. Such and above being the position, we do not also accede to the prayers of Mr. Banerjee that there should be an order for remand to the learned Court below, for having the lis, duly and effectively determined, on framing an additional issue as indicated above.

Alike the case noted above the parties of the instant matter having full knowledge of each other case took effective part in the trial. The question of prejudice for non-framing of specific issue on fraud in the case does not arise. It has been squarely dealt with by both the Courts below. There is concurrent finding to the effect that the defendant has failed to establish that the Ext. 2 was vitiated by fraud or by misrepresentation.

Mr. Bhattacharjee has contended that the suit was filed in pre-mature state as the stipulated date was upto 1990. On the other hand, Mr. Ghosh has contended that the suit was filed as per the demand of recital of Ext. 2. On perusal of Ext. 2 it appears that there was an agreement to retransfer the suit property to the plaintiff in case the plaintiff pays back Rs. 5,00/- (price of property) to the defendant at any time during the span of 5 years from Shravan 1392 B.S.. The deed was executed on 13-4-1990.

This is a case for specific performance of contract. Here, Ekrarnama - Ext. 2 is the document of contract. The recital of the document is required to be seen to address the issue. The trial Court has framed issues on cause of action - "Has the plaintiff cause of action for the instant suit?" and on maintainability of the suit -"Is the suit maintainable?" Both the issues were not pressed before the trial Court. The same have not been agitated too before the First Appellate Court. Now in second appeal those issues in the disguise of "pre-mature state of suit" find place in the contention of learned Advocate of the appellant. It is contended that not pressing the issue before the lower Court can not debar the appellant to agitate any question of law.

On the contrary, Mr. Ghosh has contended that suit has filed taking the spirit of Ekrarnama-Ext.2. The courts below have decided the cause of action and maintainability part of the suit and the same cannot be agitated in this forum.

On perusal of Ekrarnama-Ext.-2, it transpires that there was speaking stipulation that the defendant was to reconvey the property in case the respondent/plaintiff pays back the amount at any time during the period from Shravan 1392 B.S. to Ashar 1397 B.S. It is clear from the terms of stipulation that the plaintiff was not under any obligation to repay the amount in Shravan 1392 B.S. or at any time close to that period of time, but at any time within the five years from the month of Shravan 1392 B.S. It is a matter of record that plaintiff has deposited Rs. 5,000/- in court at the time of institution of the suit on 14.7.1988 which is corresponding to 29th day of Ashar 1395 B.S. i.e. two years before the expiry of the period, on expiry of which, respondent/plaintiff''s right to get the property reconveyed was to be extinguished under the contract. It has been expressly averred at para 8 of the plaint that the plaintiff was depositing Rs. 5,000/- in court in performing his part of contract. The pleading of plaintiff has been given substantive stand by the document itself which has been brought on record at the time of hearing before the trial Court as best piece of evidence. The suit was very much maintainable as it was instituted taking the letters and spirit of Ekrarnama-Ext. 2.

The second thrust of Mr. Bhattacharya regarding maintainability is that there is absence of any pleading and proof as to the readiness and willingness of the plaintiff to perform his part of the contract which is mandatorily required u/s 16(c) of the Specific Relief Act. It is necessary to be considered whether the plaintiff was ready and willingly to perform his part of the contract as per the agreement. Clause (C) of Section 16 of the Specific Relief Act, 1963 provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. At the cost of repetition, in the present case the plaintiff specifically relied on paragraph 8 of the plaint where it has been averred that the plaintiff was depositing Rs. 5,000/- in court in performing his part of contract. In fact he has deposited Rs. 5,000/- in Court at the time of institution of the suit.

In Syed Dastagir Vs. T.R. Gopalakrishnasetty, , the Court has held in para 9 as under:

...In construing a plea in any pleading. Courts must keep in mind that a plea is not an expression of art and science but an expression though words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey though only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsel hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute.

In Motilal Jain Vs. Smt. Ramdasi Devi and Others, the Court has held that an averment as to readiness and willingness in plaint is sufficient if the plaint, read as a whole, clearly indicates that the plaintiff was always and is still ready and willing to fulfil his part of the obligations. Such averment is not a mathematical formula capable of being expressed only in certain specific words or terms.

Further, in Umabai and Another Vs. Nilkanth Dhondiba Chavan (Dead) by Lrs. and Another, the Court in para 30 has observed as under:

It is well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required u/s 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleading as also the evidences brought on records.

When the entire plaint is read, there is no reference of the agreement dated 21.7.1952 about which the plaintiffs have alleged that they are ready and willing to perform their part of the contract as per the agreement. From the entire tenor of the plaint, it is clear that the plaintiffs have pleaded for their readiness and willingness to perform their part of the contract as per the agreement dated 19.7.1952. The agreement dated 21.7.1952 has been referred to only for the purposes of accounting to be made for the payment of the consideration for resale of property and there is also the plaintiffs have specifically stated that they have already paid Rs. 1,000/- on 13.10.1953 and Rs. 4,000/- on 1.2.1955 and the defendant is entitled to receive the balance of Rs. 5,000/- less the net rental income of the house received by him.

It is evident from the plaint of the case in hand that the plaintiff on several occasions approached the defendant to reconvey the suit property on getting back the consideration money. Even it is also made before the institution of the suit. But the defendant on different pleas refused to reconvey the suit property on getting back the consideration as proposed by the plaintiff. P.W. 1, Ranjit has given out in his evidence that he went to pay back the loan amount to the defendant as per terms of the agreement. But the defendant refused to take back the loan amount. This development was brought to the notice of the Prodhan of Anandi No. 1 Gram Panchayat by the plaintiff by way of filing an application and the said application was forwarded to the P.S. by the Prodhan. This piece of evidence of P.W. 1, Ranjit has not been challenged in the cross-examination. To add further that P.W. 1 Ranjit has stated in the cross-examination that he went to pay back the loan amount in the month of Jaistha in the year, 1395 B.S., 1396 B.S. and 1397 B.S. respectively being accompanied by Ramesh Chandra Bhangi, and Sitala Prosad Basu. Sital Prosad/P.W. 2, and Ramesh Chandra/P.W. 5, have also corroborated in their testimony that the plaintiff went to repay the amount in order to get back the suit property being accompanied by them.

There is concurrent finding of readiness and willingness on the part of the plaintiff/respondent in performing his part of the contract. There is specific finding that the specific performance of contract is not barred in the instant case in view of the provision contained in Section 16(C) if the Specific Relief Act.

This Court needs it relevant to record that the learned advocate of the defendant argued before the lower Court that plaintiff sold the suit property to the defendant by a sale deed and there was no agreement for reconveyance of the same in favour of the plaintiff. The impact of Ekrarnama was challenged by advancing an argument that it was obtained by practising fraud upon the defendant. Now it is being argued that the transaction was of loan in substance. It is very difficult to accept the current phase of argument which is just opposite to the argument taken by the learned advocate of the defendant before the lower Courts. The question of seeking a declaration under the Bengal Money Lenders Act by the plaintiff does not at all arise.

In Mushir Mohammed Khan (Dead) By LRS. Vs. Smt. Sajeda Bano and Others, the Hon''ble Apex Court held:

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.

The proviso to this clause was added by Act 20 of 1929 so as to set at rest the conflict of decisions on the question whether the conditions, specially the condition relating to reconveyance contained in a separate document could be taken into consideration in finding out whether a mortgage was intended to be created by the principle deed. The legislature enacted that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale.

The proviso was considered in Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Another, and came to be considered again in Bhaskar Waman Joshi (deceased) and Others Vs. Shrinarayan Rambilas Agarwal (deceased) and Others, . The view expressed by the Court in Bhaskar case was repeated in the same words in P.L. Bapuswami Vs. N. Pattay Gounder,

These decisions were considered in Vidhyadhar Vs. Manikrao and Another, and it was observed as under

The basic principle is that the form of transaction is not the final test and the true test is the intention of the parties in entering into the transaction. If the intention of the parties was that the transfer was by way of security, it would be a mortgage. The Privy Council as early as in (1900) ILR 22 149 (P.C.) (Privy Council) had laid down that, as between the parties to the document, the intention to treat the transaction as an out and out sale or as a mortgage has to be found out on a consideration of the contents of the document in the light of surrounding circumstances. The decisions of this Court in Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal and P.L. Bapuswami v. N. Pattay Gounder are also to the same effect.

The contents of the document have already been considered above which indicate that defendant 2 had executed a mortgage by conditional sale in favour of Defendant 1. He had promised to pay back Rs. 1500 to him by a particular date failing which the document was to be treated as a sale deed. The intention of the parties is reflected in the contents of the document which is described as a mortgage by conditional sale. In the body of the document, the mortgage money has also been specified. Having regard to the circumstances of this case as also the fact that the condition of repurchase is contained in the same document by which the mortgage was created in favour of Defendant 1, the deed in question cannot but be treated as a mortgage by conditional sale. This is also the finding of the courts below.

In Raj Kishore (Dead) By L.Rs. Vs. Prem Singh and Others, . the Court held every sale accompanied by agreement for reconveyance of property would not constitute mortgage by conditional sale.

Applying the principles laid down above, the two documents read together would not constitute a " mortgage" as the condition of repurchase is not contained in the same documents by which the property was sold. The proviso to clause (c) of Section 58 would operate in the instant case also and the transaction between the parties cannot be held to be a "mortgage by conditional sale. A bare reading of Section 58(c) of the Transfer of Property Act would show that for a transaction to constitute mortgage by conditional sale it is necessary that the condition is embodied in the document that purports to effect the sale. That requirement is stipulated by the proviso which admits of no exceptions. In the case in hand there is separate agreement of re-conveyance. The deed of sale does not contain any condition that purports to effect the sale.

Considering the facts and circumstances of the case, evidence on record, I find that the concurrent finding of the learned Courts below is based on sound reasoning. It does not call for any interference.

In the result, the appeal stands dismissed.

Send down the lower Court record at once. Urgent xerox certified copy of this order, if applied for, be given to the learned advocate of the parties on usual undertaking.