Mahammad Isa and Others vs Johora Khatoon and Others

Tarun Kumar Gupta, J.—This second appeal is directed against judgment and decree dated 8th January, 1985 passed by the learned Additional District Judge, 2nd Court at Howrah in Title Appeal No. 269 of 1983 affirming the judgment and decree dated 19th August, 1983 passed by the learned Subordinate Judge, 2nd Court at Howrah in Title Suit No. 83 of 1983. Present appellants together with their mother Jobeda Bibi filed said suit being heirs of Yunush. The plaintiffs'' specific case was that the holding No. 23, Nanda Ghosh Road, P.S. Golabari, District Howrah was owned by Ilahi Box as thika tenant. Ilahi Box had three sons namely Abdul Oyhid, Md. Yunish and Md. Ahia. Abdul Oyhid pre-deceased his father Ilahi Box leaving son Md. Yousuf (defendant No. 1). Ilahi Box died in 1946 and on his death, his two surviving sons namely Md. Yunush and Md. Ahia inherited said holding No. 23, Nanda Ghosh Road in equal shares. Md. Yousuf (defendant No. 1) later purchased the share of Md. Ahia (defendant No. 2) and the plaintiffs and defendant No. 1 were in ejmali possession of the property.

In 1947 Md. Yunush borrowed a sun of Rs. 350/- from the defendant No. 1 executing an ostensible sale deed for Rs. 300/- on 9th July, 1947. On the same date a deed of reconveyance was also executed by the defendant No. 1 in favour of Md. Yunush. Md. Yunush was in possession of the property till his death in 1965 and after his death, the plaintiffs as his heirs were in possession of the same. The defendant No. 1 being instigated by some outsiders tried to dispossess the plaintiff. The plaintiffs then asked the defendant to produce accounts towards said loan transaction of 1947. As defendant No. 1 refused to render any accounts, the suit was filed for declaring that the transaction dated 9th July, 1947 in between Md. Yunush and Md. Yousuf was nothing but a loan transaction and mortgage by conditional sale and that the transaction should be reopened to quantify the amount to be paid by the plaintiffs to the defendant No. 1 towards loan and interest and also for partition of the suit property declaring plaintiffs'' half share therein with other consequential reliefs.

Md. Yousuf as defendant No. 1 filed a written statement denying material allegations of the plaint. The specific case of the defendant No. 1 is that the suit holding No. 23, Nanda Ghosh Road, measuring about 5 cottahs originally belonged to Ilahi Box. Abdul Oyhid, Md. Yunnush and Md. Ahia were three sons of Ilahi Box. Abdul Oyhid predeceased his father Ilahi Box leaving defendant No. 1 (Md. Yousuf) as his son. Ilahi Box by a registered gift dated 13th July, 1944 transferred 2 cottahs of land with structures standing thereupon to this defendant No. 1. On death of Ilahi Box his two surviving sons inherited remaining 3 cottahs of land with structure thereupon in the suit holding. Md. Yunush by registered kobala dated 9th July, 1947 transferred one and half cottahs of land with structure thereupon of the suit holding to the defendant No. 1 on receipt of a consideration of Rs. 300/-. Md. Ahia (defendant No. 2) also by a registered sale deed dated 9th September, 1947 transferred his share of one and half cottahs of land with structure thereon in the suit holding at a consideration of Rs. 400/-. This defendant accordingly became 16 annas owner of the suit holding. Later on this defendant No. 1 purchased the mokorari mourashi interest in the said holding from the zamindar through a deed dated 16th December, 1967. Accordingly, this defendant No. 1 became full owner of the structure with land of the suit holding. Md. Yunush had no right, title and interest in any portion of the suit holding. Only plaintiff No. 1 Md. Isha is in possession of only one room in the suit holding as a monthly tenant under defendant No. 1 at a rental of Rs. 14/- per month payable according to English calendar month. The deed executed by Yunush in favour of the defendant was an out and out sale deed only with an agreement of the re-conveyance within four months therefrom. It was never a loan transaction. The plaintiffs are not entitled to get any relief whatsoever. The suit is liable to be dismissed with costs.

Md. Ahia (defendant No. 2) filed a written statement supporting the plaintiffs'' case and alleging further that he did not sell his share to the defendant No. 1 through any kobala dated 9th September, 1947,

Learned Trial Court framed several issues including issues as to whether the impugned deed dated 9th July, 1947 was a loan transaction and whether the plaintiffs have any interest in the suit property and thus are entitled to a decree as claimed.

After contested hearing learned Trial Court opined that the impugned kobala dated 9th July, 1947 was an out and out sale deed and not a document of loan or a mortgage and that the plaintiffs had no right, title and interest in the suit holding and that the suit was liable to be dismissed.

Plaintiffs preferred an appeal being Title Appeal No. B269 of 1983 which was also dismissed after contested hearing. Hence is this second appeal. This second appeal was heard on the following substantial questions of law:--

(1) Whether the learned Courts below substantially erred in law by treating the kobala (Ex.F) and the agreement of reconveyance (Ext. 1) as not the documents of loan transaction without applying correct legal test.

(2) Whether judgments of the learned Courts below were perverse for not considering the materials on record in their proper perspective.

Mr. Animesh Kanti Ghoshal, learned counsel for the plaintiffs appellants, submits that Md. Yunush, the predecessor-in-interest of the plaintiffs mortgaged the property to the defendant No. 1 Md. Yousuf by executing the ostensible sale deed dated 9th of July, 1947 (Ext.F) with an agreement of reconveyance on the same day (Ext. 1). According to him, said ostensible sale deed had to be executed for incurring expenses for illness of Md. Yunush''s wife and that it was a loan in substance. He further submits that the alleged consideration money of Rs. 300/- as shown in said deed was below the market price as it would be evident that within two months the other part of the same amount of property was purchased by Md. Yousuf (defendant No. 1) from Md. Ahia (defendant No. 2) on payment of Rs. 400/-. According to him, this palpably shows that the alleged consideration money of Rs. 300/- as shown in impugned deed dated 9th of July, 1947 (Ext.F) was below market price. He next submits that there was galore of evidence to show that in spite of execution of said ostensible sale deed (Ext.F) Md. Yunush was, and later on plaintiff as his heirs were in possession. In this connection he further submits that though the contesting defendant No. 1 took the plea of granting tenancy to the plaintiff No. 1 in one of the rooms of the suit property but he failed to establish the same. According to him, learned Courts below failed to take note of these facts in their proper perspective and accordingly came to a wrong finding that exhibit F was a document of sale and not a document of loan. In support of his contention he refers case laws reported in (1980) 2 CLJ Manindra Nath Bose v. Narendra Krishna Mitra & Anr.) Radhika Ranjan Roy Vs. Satyendra Kumar Sarkar, and Santi Devi and Others Vs. Md. Jalil Answari, He further submits that learned Courts below failed to consider the relevant provisions of section 2(12) and section 37(A) of the Bengal Money Lenders Act, 1940 in perspective of the entire evidence on record causing miscarriage of justice. Accordingly, he prays for remand of the matter to the learned Court below for accounting treating the Exhibit 5 as a document of loan.

Mr. Bidyut Banerjee, learned senior counsel for the contesting defendant respondents, on the other hand, submits that there was no evidence of existence of any loan at the time of execution of the document dated 9th of July, 1947 (Ext. F) and hence said document cannot be treated as loan transaction. He next submits that learned Courts below came to a finding of fact on the basis of evidence on record that there was no evidence that the consideration money as disclosed in the document in application (Ext. F) was below the market price of the relevant period. According to him, said concurrent findings of fact should not be interfered during hearing of a second appeal. He further submits that evidence on record disclosed that only one of the plaintiffs was in possession of only 1/2 rooms though there are several rooms in the suit property and that the contesting defendant No. 1 was collecting rents from tenants in occupation of those other rooms of the suit property. He next submits that there were overwhelming documents to show that since purchase of suit property from Md. Yunush and other half of the suit holding from Md. Ahia in 1947 the original defendant No. 1 took all steps as an owner by mutating his name, payment of taxes and other acts of an owner. According to Mr. Banerjee since after execution of the sale deed in 1947 (Ext.F) neither Md. Yunush nor the plaintiffs as his heirs did any act whatsoever exercising the rights of an owner in the property. Mr. Banerjee next submits that there was also evidence on record that just after execution of the sale deed (Ext.F) Md. Yunush and his family members left away the suit property and had been to Pakistan for some period. According to Mr. Banerjee if all those circumstances are taken together then it goes to show that the impugned deeds dated 9th July, 1947 were nothing but an out and out sale deed with an agreement of repurchase. He further submits that as the right of repurchase was not exercised within the stipulated period (four months), there is no question of exercise said right after long 33 years. Accordingly, Mr. Banerjee prays for dismissal of the appeal with cost. In support of his contention Smt. Swarnalata Tat Vs. Chandi Charan Dey and Another, ( S.M. Mafizan Bibi Vs. S.K. Panchu,

There is no denial that Md. Yunush, the predecessor-in-interest of the plaintiffs executed a deed of sale dated 9th of July, 1947 in favour of Md. Yousuf (defendant No. 1) in respect of the suit property namely 1 1/2 cottahs of Thika land, its structures comprising of nine rooms thereupon showing the consideration amount as Rs. 300/- together with an agreement of reconveyance (Ext.1) within four months on payment of same amount of Rs. 300/-. Now, the question is whether they were documents of loan as claimed by the plaintiff or documents of an out and out sale deed with an agreement of reconveyance as claimed by the defendant No. 1. Though said transactions were made in 1947 but section 37(A) of the Bengal Money Lenders Act, 1940 which was brought into the Statute book through Amendment Act of 1965 can be attracted even to prior transactions Abdul Rahim and Others Vs. Kamalapati Mukherjee,

The effect of section 37(A) of the Bengal Money Lenders Act is that (a) if one secures a loan from another; (b) he does so secure by executing a mortgage and (c) the borrower-mortgagor ostensibly sells the mortgaged property on any of the conditions namely:

(i) that on default of payment of the mortgaged money on a certain date the sale shall become absolute, or

(ii) that on condition of such payment being made such sale shall become void, or

(iii) that on such payment being made the buyer shall transfer the property to the seller.

Then such a transaction is to be treated as a mortgage by conditional sale. As has already been stated such transactions are to be treated as a mortgage by conditional sale even if the transaction of the aforesaid description is entered prior to the Amendment Act of 1965.

The question whether a transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is to be decided on facts of each case P.L. Bapuswami Vs. N. Pattay Gounder, u/s 58(c), T.P. Act Transaction embodied in more than one documents is excluded from the realm of mortgage. But it has been held that the Court deciding the question as to the nature of transaction must consider the effect of section 37(A) which overrides the proviso to section 58(c) of the Transfer of Property Act. As such, there was no legal bar to take a plea by the plaintiffs that the transactions were nothing but a loan transaction. It has been judicially decided by Hon''ble Apex Court as well as by this Court in various case laws including the referred case laws that whether a transaction is a loan transaction or an out and out sale with a condition of repurchase has to be ascertained from the surrounding circumstances namely (1) the existence of a loan at the time of transaction; (2) the consideration shown in the transaction was far less than the real value of the property; (3) the vendor continued to possess the suit property by exercising right of owner; (4) the consideration for the reconveyance and that for the original transaction was the same. [Emphasis added]

Admittedly, neither in the plaint nor in the impugned document (Ext.F) there was any whisper about existence of any loan justifying execution of said document. It was only disclosed in the impugned document (Ext.F) that on account of illness of his wife, vendor (Md. Yunush) was selling said property. A person usually sells a property when he requires money for one purpose or other purposes. It does not mean and cannot mean that as a person wants to sell his property for some reason it presupposes that he has a loan on that score. Learned Courts below have discussed the entire evidence on record and came to a concurrent findings of fact that the plaintiffs failed to establish that there was any existing loan on the date of execution of the impugned documents on 9th of July, 1947.

In the document the consideration money was shown to be Rs. 300/-. Learned Courts below noted that the plaintiffs failed to produce any single document of that time to show that the consideration money as disclosed in Ext.F was low, not to speak of shockingly low. Rather it appears from the judgment of learned Courts below that they made a thorough discussion to come to a conclusion that at the relevant time in view of the peculiar conditions prevailing in the country, the price quoted in Exhibit-F was rather the market price. It is true that only after two months Md. Ahia (defendant No. 2) sold out same type of property to Md. Yousuf (defendant No. 1) at a consideration of Rs. 400/-. By that time the partition of India was already effected and the country was coming to a peaceful co-existence of rival communities whereas Ext. F and Ext. 1 were executed when the political scene as well as social scene were much turbulent being the period just before the independence of India. These things also are factors for determining price of a property. Be that as it may, I do not find any fault in the concurrent findings of learned Courts below that there was no evidence that the suit property was sold through Ext.F at a low price.

There were evidence on record as well as admission of the P.Ws. that after execution of said documents (Ext.F and Ext. 1) Md. Yunush with his family left for their native village at Bihar and then went to Pakistan and stayed there for sometime. As such, continuous possession of Md. Yunush of the suit property since execution of those documents is not tenable. It is true that it came out from the evidence on record that one of the plaintiffs and his mother were in possession of only two rooms out of seven rooms in the suit premises but there is no evidence that they are possessing those rooms as owners or that they are exercising their right of ownership over suit property. The plaintiffs miserably failed to produce a single document to show that since 1947 i.e. after execution of those documents namely Ext.F and Ext. 1 they exercised any right of ownership over the suit property. On the other hand, it came out that the contesting defendant No. 1 Md. Yousuf produced a bunch of documents namely Exts. A-H to show that since said purchase in 1947 he paid rent against rent receipts in respect of Thika land, he mutated his name and paid taxes to the Howrah Municipality, his name was recorded in the R. S. record of right as 16 annas owner. He purchased landlord''s interest in the property through a document dated 16th December, 1967. As such, it is palpable that the contesting defendant No. 1 Md. Yousuf was exercising his right of ownership over the suit property as a rightful owner since after said purchase in 1947.

In view of the discussions as made above and the materials on record I have not the least hesitation to find and hold that the learned Courts below did not err by treating the kobala (Ext.F) and the agreement of reconveyance (Ext. 1) as not the documents of loan transaction.

I further find and hold that concurrent findings of learned Courts below were based on the evidence on record and the circumstances of the case and were not at all perverse requiring interference by this Court in the second appeal.

The appeal is hereby dismissed on contest. However, I pass no order as to costs.

Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest.

Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.