AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the original defendants who are aggrieved by the declaration
granted by the trial Court to the effect that saleÂdeeds dated 08.06.1977 and 10.05.1991 are illegal. Further relief granted is to restrain the
defendants from interfering with the possession of the plaintiffs. That decree has been affirmed by the appellate Court.
The facts in brief are that it is the case of the plaintiffs that the plaintiff no.1 was the owner of field Survey No.28/1 which was subsequently reÂ‐
numbered as Survey no.42 admeasuring 1 Hectare 19 R. In the year 1977, the plaintiff no.1 fell ill and he was not able to move around. The plaintiff
no.2 who was related to him supported the plaintiff no.1 in his illness. As the plaintiff no.1 was not having sufficient funds, plaintiff no.2 borrowed
an amount of Rs.2,500/ from the defendant no.1. This amount was used for treatment of the plaintiff no.1. After the plaintiff no.1 recovered from
his illness, the defendant no.1 sought repayment of aforesaid amount. The plaintiff no.1 however was unable to repay the same and hence the
defendant no.1 insisted for execution of a saleÂdeed in his favour. According to the plaintiffs, there was an oral agreement that the suit property
would be reÂconveyed in the name of plaintiff no.1 after the loan was fully satisfied by the plaintiff no.1. On that basis, saleÂdeed dated
08.06.1977 for area admeasuring 2.80 acres came to be executed in favour of defendant no.1. It is the case of the plaintiff no.1 that the possession
was never handed over and the saledeed was executed as security for the money lending transaction. It is further pleaded that substantial amount
was repaid to the defendant no.1 and hence in the month of MarchÂ1985, the plaintiff no.1 sought accounts of the amount repaid. It was found that
the plaintiff no.1 had to repay Rs.500/Â after which the defendant no.1 was to reÂconvey the suit field. As the plaintiff no.1 had to repay the
aforesaid amount as well as certain dues were also payable to plaintiff no.2, he executed a saleÂdeed on 09.04.1985 in favour of plaintiff no.2.Â
Thereafter, the plaintiff no.1 approached the defendant no.1 to repay the amount of Rs.500/Â but the defendant no.1 refused to accept the same.Â
The defendant no.1 thereafter took steps to enter his name in the revenue records on 21.07.1985 and as the plaintiffs apprehended dispossession, the
aforesaid suit came to be filed. The relief sought in the suit was a declaration that saleÂdeeds dated 08.06.1977 and 10.05.1991 were illegal.Â
Ancillary prayer for permanent injunction was also sought.
The defendant no.1 filed his written statement at Exhibit 22. It was pleaded that the saleÂdeed dated 08.06.1977 was an out and out saleÂdeed as
plaintiff no.1 was in need of money. There was no agreement to reÂconvey the suit property to the plaintiff no.1. Possession was also delivered
on the date of the saleÂdeed and the defendant no.1 continued to be in possession. It was then pleaded that plaintiff no.2 had purchased a portion
of field Survey no.28/1 from the plaintiff no.1 on 29.07.1976 which field was adjacent to the field purchased by defendant no.1. As plaintiff no.2
wanted to purchase the suit field so as to make a compact block, he insisted on execution of such saleÂdeed on 09.04.1985. It was thus prayed that
suit was liable to be dismissed as it was also filed beyond the period of limitation.
The defendant no.2 in whose favour the suit property wassold on 10.05.1991 was impleaded as defendant no.2 and he adopted the written statement
filed by the defendant no.1.
During pendency of the suit, pursis was filed at Exhibit 68 on 12.01.1995 stating therein that the plaintiff no.1 had expired before three years and
that he had not left any legal heirs. The other parties led evidence and the trial Court recorded a finding that the transaction on the basis of which
saleÂdeed dated 08.06.1977 was executed was one of money lending and that said saleÂdeed was executed by way of security for the loan. The
trial Court further held that the plaintiffs had failed to prove that they had repaid the loan amount to the defendant no.1. The suit was accordingly
decreed. The appellate Court on reÂappreciating the evidence affirmed those findings and dismissed the appeal. Being aggrieved, the defendants
have filed this second appeal.
While admitting the second appeal, the following substantial questions of law were framed.
(I) Whether the suit without seeking a declaration and relief of specific performance on account of agreement of reconveyance was maintainable ?
(II) Whether the suit falls under Art. 54 or Art.59 of the
Limitation Act ?
Thereafter on 05.09.2018, an additional substantial question of law came to be framed.
(III) In the light of the plaint averments that saleÂdeed dated 08/06/1977 in favour of defendant No.1 was nominal in nature and there was an oral
agreement between plaintiff No.1 and defendant No.1 to reconvey the suit property in favour of plaintiff No.1, on the death of plaintiff No.1 and he
not being survived by legal heir, whether the suit as a whole abated ?
Shri V.V. Bhangde, learned counsel for the appellants, in support of the appeal made following submissions:Â
(a) It was submitted that the suit as filed with simplicitor prayer that saleÂdeeds dated 08.06.1977 and 10.05.1991 were illegal was not maintainable in
view of the fact that according to the plaintiffs there was an agreement of reÂconveyance with the defendant no.1. The plaintiff no.1 had offered
the balance amount of Rs.500/Â to the defendant no.1 for the purposes of reÂconveyance but the said amount was not accepted by the defendant
no.1. It was therefore necessary for the plaintiffs to have sought a declaration as well as the relief of specific performance with regard to the
agreement of reÂconveyance. In absence of any such relief of specific performance having been sought, no relief could have been granted to the
plaintiffs. In that regard, learned counsel placed reliance on the decision in N.V. Srinivasa Murthy & Others Versus Mariyamma (Dead) by
proposed LRS. & Others [(2005) 5 SCC 548] and submitted that in somewhat similar facts it was held by the Hon'ble Supreme Court that the relief of
specific performance was necessary. It was submitted that this vital aspect was not considered by both the Courts.
(b) Both the Courts erred in holding that the suit was filed within limitation. According to the learned counsel the relief of specific performance
ought to have been sought and on that basis, the suit ought to have been filed within the limitation prescribed by Article 54 of the Limitation Act,
1963. Though the saleÂdeed in question is executed on 08.06.1977, the suit in question was filed only on 29.07.1985 which was beyond the
prescribed period of limitation. On the basis of the plaint averments, it was clear that the relief as sought was barred by limitation. (c) It was then
submitted that as per the plaint averments, the saleÂdeed dated 08.06.1977 in favour of defendant no.1 was a nominal transaction and there was an
oral agreement between the plaintiff no.1 and the defendant no.1 to reÂconvey the suit property in favour of plaintiff no.1. The plaintiff no.1 having
expired on 10.08.1991 without leaving any legal heirs, the suit as a whole abated as no relief could be granted with regard to the oral agreement
between the plaintiff no.1 and defendant no.1. The case as pleaded in the plaint to have the re conveyance of the property was personal to the
plaintiff no.1 and with his death that right came to an end and it did not survive in favour of plaintiff no.2. Moreover, in the light of the plaint
averments, plaintiff no.2 who purchased the property on 09.04.1985 would not get any legal right to prosecute the suit. In that regard, learned
counsel placed reliance on the decisions in Phool Rani & Others Versus Sh.Naubat Rai Ahluwalia [(1973) 1 SCC 688], Motilal Mahavirprasad
Sharma & Another Versus Manojkumar Vithalrao Ghiya [1981 Mh.L.J. 211], Nirav Deepak Modi Versus Najoo Bhiwandiwala & Others [2015
(1) All MR 739] and thus submitted that suit itself was liable to be dismissed. He also placed reliance on the decisions in Indu Kakkar VersusÂ
Haryana State Industrial Development Corporation Ltd. & Another [(1999) 2 SCC 37] and Heirs of Vrajlal J. Ganatra Versus Heirs of
Parshottam S. Shah [(1996) 4 SCC 490]. It was thus submitted that the decree as passed in favour of the plaintiffs was unsustainable and same
was liable to be set aside.
Per contra, Shri R.L. Khapre, learned counsel for the respondents, supported the impugned judgment. In that regard, he made the following
submissions:Â
(I) The suit as filed was maintainable in view of the fact that declaration as to the nature of the saleÂdeed dated 08.06.1977 had been specifically
sought. It was the case of the plaintiff no.1 that the said saleÂdeed was by way of security for a money lending transaction and hence illegal. It
was not necessary for the plaintiffs to seek the relief of specific performance of the agreement of reÂconveyance especially when the declaration as
to the invalidity of the said saleÂdeed was sought. He submitted that the ratio of the decision in N.V. Srinivasa Murthy & Others (supra) in fact
supported the case of the plaintiffs.
(ii) The suit as filed was within limitation which was rightly found by both the Courts. The cause of action as pleaded indicated that same arose
when the defendant no.1 sought to correct the revenue records in the year 1985 and the suit filed immediately thereafter was within limitation. The
limitation was governed by Article 59 of the Act of 1963.
(iii) It was submitted that the plaintiff no.1 had executed the saledeed of the property in favour of plaintiff no.2 on 09.04.1985. All rights of the
plaintiff no.1 thus stood transferred in favour of plaintiff no.2 which fact was mentioned in the plaint itself. As the plaintiff no.1 was not survived by
any legal heir and plaintiff no.2 had got title to the suit property, the suit would not abate on the death of plaintiff no.1. Placing reliance on the
decision in Shantilal Thakordas & Others Versus Chimanlal Maganlal Telwala [(1976) 4 SCC 417], it was submitted that the earlier decision in
Phool Rani (supra) had been overruled and therefore it could not be said that the suit abated as a whole.
(iv) It was further submitted that considering the fact that the saleÂdeed in favour of the defendant no.1 executed on 08.06.1977 was nominal, the suit
as filed was rightly decreed. The learned counsel referred to the decisions in Shalinibai Trimbakrao Begde & Others Versus Narayan Harnaji
Bhalme & Others [2006 (6) Mh.L.J. 752] and Bhimbadhar Rout Versus Kuna Senapati & Another [AIR 1995 Orissa 258] in that regard. It
was thus submitted that there was no reason to interfere with the findings recorded by both the Courts.
I have heard the learned counsel for the parties at length and I have also gone through the records of the case. For considering the first
substantial question of law, it would be necessary to refer to the pleadings in the plaint. In paragraph 2 of the plaint, it has been stated that in the
year 1977, the plaintiff no.2 on behalf of the plaintiff no.1 borrowed an amount of Rs.2,500/ from the defendant no.1. After the plaintiff no.1 was
medically treated and he recovered from his illness, the defendant no.1 demanded the hand loan from the plaintiff no.1. It is then pleaded in
paragraph 3 of the plaint that as the plaintiff no.1 was unable to repay the hand loan, the defendant no.1 insisted on executing the saleÂdeed of the suit
field on an oral agreement that it would be reÂconveyed by a saledeed in favour of the plaintiff no.1 whenever the loan was fully satisfied. On these
terms, the plaintiff no.1 executed the saleÂdeed dated 08.06.1977. It is further pleaded that the same was a money lending transaction and the
plaintiff no.1 continued in possession. In paragraph 4 of the plaint, it is pleaded that the plaintiff no.1 in MarchÂ1985 asked the defendant no.1 about
the account of the loan and it was then settled that the plaintiff no.1 had to repay only Rs.500/Â after which the defendant no.1 would have to reÂ‐
convey the suit field. As the plaintiff no.1 had to repay the loan amount and also to repay the hand loan to plaintiff no.2, he sold the suit field to the
plaintiff no.2 on 09.04.1985. In paragraph 6, it is stated that after the suit field was sold, the plaintiff no.1 went to the defendant no.1 to repay the
amount of Rs.500/ but the defendant no.1 refused to accept the same and threatened the plaintiffs that he would take possession. The defendant
no.1 then sought to enter his name in the revenue records and that gave a cause of action to the plaintiffs to file the aforesaid suit.
In the written statement, the defendant no.1 has pleaded that the transaction in question was not in lieu of any amount lent to the plaintiffs and it was
an outright sale.
Before the evidence could be recorded the plaintiff no.1 expired. The plaintiff no.2 was examined at Exhibit 69. He has reiterated that after
the suit field was sold by plaintiff no.1 to him, plaintiff no.1 had been to the house of plaintiff no.1 for repaying the amount of Rs.500/but the defendant
no.1 refused to accept the said amount. PW3ÂWasudeo at Exhibit 74 has stated that the oral agreement of reÂconveyance took place in his
presence and that the plaintiff no.1 had been to the house of defendant no.1 for repaying that amount of Rs.500/Â. The defendant no.1 in his
deposition has denied that the plaintiff no.1 had come to him for repaying the amount of Rs.500/Â.
The trial Court had framed an issue being Issue No.3 as to whether the plaintiff no.1 proved that he had repaid the loan amount to the defendant no.1
as alleged. The trial Court answered that issue in the negative by observing that there was no evidence on record to indicate how much amount the
plaintiff no.1 had repaid to the defendant no.1. Similarly, the appellate Court framed Point No.2 and answered the same in negative. From the
aforesaid it is clear that it is the specific case pleaded by the plaintiffs that there was an agreement of reÂconveyance with the defendant no.1 and on
repayment of the amount of Rs.2,500/Â, the suit field would be reÂconveyed by the defendant no.1 in favour of the plaintiff no.1. Both the Courts
have held that it was proved by the plaintiff no.1 that the defendant no.1 had agreed to reÂconvey the suit field in favour of plaintiff no.1 after the loan
was repaid. However, a finding is recorded by both the Courts that repayment of the entire loan amount has not been duly proved by the
plaintiffs. It is in this backdrop that the aspect as to whether the plaintiffs ought to have prayed for the relief of specific performance as to the
agreement of reÂconveyance has to be considered.
It is the specific case of the plaintiff no.1 that as he was suffering from illness, the amount of Rs.2,500/Â was required to be borrowed by the
plaintiff no.2 on his behalf for his treatment. It is also the case of the plaintiff no.1 that the defendant no.1 insisted for executing the saleÂdeed in
his favour and there was an oral agreement that the suit field would be reÂconveyed by executing a saleÂdeed in favour of plaintiff no.1 whenever
the loan amount was fully satisfied. According to the plaintiff no.1 himself, after the saleÂdeed dated 09.04.1985 executed by him in favour of plaintiff
no.2, he had gone to the defendant no.1 to repay the amount of Rs.500/ but the same was not accepted by the defendant no.1. The evidence
recorded in that behalf is consistent with the aforesaid pleadings. It can thus be seen that according to the plaintiff no.1 in terms of the oral
agreement with the defendant no.1 substantial amount of the sum borrowed was repaid and amount of Rs.500/ was the balance. This amount was
not accepted by the defendant no.1. In other words, though the plaintiff no.1 was ready and willing to perform his part of the oral agreement with
the defendant no.1 as a condition for reÂconveyance of the suit field in his favour, the defendant no.1 did not accept that offer and thus refused to
reÂconvey the suit field.
If this was the specific case of the plaintiff no.1 which was pleaded and evidence in that regard was also brought on record, it is clear that it was
necessary for the plaintiff no.1 to have prayed for the relief of specific performance of the oral agreement of reÂconveyance. When according to
the plaintiff no.1 the execution of the saleÂdeed dated 08.06.1977 was the outcome of a loan transaction and that the entire amount that was
borrowed from the defendant no.1 was repaid, it was necessary for the plaintiff no.1 to prove that despite such repayment, the suit field was not being
reÂconveyed to him. A mere declaration that the saleÂdeed dated 08.06.1977 was illegal would not suffice. That sale would be rendered illegal
only if it was the case of the plaintiff no.1 that the transaction of sale dated 08.06.1977 was the outcome of a money lending transaction and the same
was never intended to transfer title. However, as it was the case of the plaintiff no.1 that there was an oral agreement of reÂconveyance, it was
necessary for the plaintiff no.1 to have sought the relief of specific performance of the oral agreement of reconveyance. If that relief would have
been granted to the plaintiff no.1, only thereafter would the saleÂdeed dated 08.06.1977 be rendered illegal. Thus, in absence of the relief of specific
performance being sought by the plaintiff no.1, there is no legal reason to simplicitor declare the saleÂdeed dated 08.06.1977 as well as the
subsequent saleÂdeed dated 10.05.1991 to be illegal only on the ground that the first saleÂdeed was executed by way of security for the hand loan.Â
Admittedly, according to the plaintiff no.1 himself, the entire amount of loan was not repaid as the defendant no.1 had refused to accept the amount of
Rs.500/ that was offered by the plaintiff no.1. It is thus found that both the Courts erred in declaring the saleÂdeed dated 08.06.1977 to be illegal
in the absence of any relief being sought by the plaintiff no.1 as to specific performance of the oral agreement of reÂconveyance.
The decision in N.V. Sriniwasa Murthy (supra) was sought to be relied upon by both the parties. The facts of that case indicate that the father
of the plaintiff therein had borrowed an amount of Rs.2,000/Â from the predecessorÂinÂtitle of the defendants and in lieu thereof a registered saleÂ‐
deed was executed alongwith the contemporaneous oral agreement that on return of the borrowed amount with interest, reÂconveyanceÂdeed would
be executed in favour of the borrower. It was pleaded in the plaint that certain amounts borrowed had been repaid from time to time. Thereafter
despite entire outstanding amount having been repaid, the reÂconveyanceÂdeed was not executed. In the suit, relief of declaration that the plaintiffs
were absolute owners of the suit land coupled with a prayer for permanent injunction was sought. On aforesaid facts, it was held that the foundation
of the suit was the initial saleÂdeed dated 05.05.1953 executed in lieu of loan transaction for securing the amounts borrowed. It was noted that the
amount borrowed was fully repaid and there was an oral agreement of reÂconveyance. It is in this factual background that the Hon’ble
Supreme Court held that on the said averments in the plaint, relief of declaration that saleÂdeed dated 05.05.1953 to be a loan transaction as well as
further relief of specific performance of the oral agreement of reÂconveyance of the property ought to have been claimed. A mere declaration that
the plaintiffs were the absolute owners of the suit fields could not have been claimed without seeking a declaration that the saleÂdeed executed was
on account of a loan transaction and not an outright sale. The cause of action for seeking such declaration and obtaining reÂconveyanceÂdeed was
the repayment of the entire loan.
It is found that in the present case, though a declaration as to the invalidity of saleÂdeed dated 08.06.1977 has been sought, the subsequent relief of
specific performance of the oral agreement of reconveyance has not been sought. That relief was all the more necessary as according to the
plaintiff no.1 though Rs.500/Â as balance loan amount was offered to the defendant no.1, he had refused to accept the same. ReÂconveyance was
subject to repayment of the entire loan amount. It is thus found that the ratio of this decision supports the contentions of the appellants and not those
of the respondents.
Substantial question of law at Serial Number (I) is accordingly answered by holding that it was necessary for the plaintiff no.1 to have sought the relief
of specific performance of the oral agreement of reÂconveyance in the light of the plaint averments and the causes of action as pleaded.
As regards the aspect of limitation, in the light of the relief sought in the plaint of a declaration that the saleÂdeed dated 08.06.1977 being illegal
and the cause of action as pleaded to have arisen when the name of defendant no.1 was mutated in the revenue records on 21.07.1985, it is found that
the suit would be governed by the provisions of Article 59 of the Act of 1963. The plaintiff no.2 claimed to be in possession pursuant to the saleÂ‐
deed dated 09.04.1985 and there was no relief of possession of the suit property being prayed for. Instead the relief of permanent injunction so as to
restrain the defendants from disturbing the possession of the plaintiffs was sought. It is thus held that in the light of the plaint averments and the
relief sought in the suit, the same would fall under Article 59 of the Act of 1963.
Even if it is assumed that the plaintiff no.1 ought to have also sought the relief of specific performance of the oral agreement of reconveyance as
averred in the plaint, the balance loan amount of Rs.500/was offered to the defendant no.1 after the saleÂdeed dated 09.04.1985 was executed by the
plaintiff no.1 in favour of plaintiff no.2. The suit as filed on 29.07.1985 would be within limitation even if provisions of Article 54 of the Act of 1963
were to be applied. In any event the suit is found to be within limitation. Substantial question of law at Serial Number (II) is answered by
holding that in the light of the reliefs claimed in the plaint based on the cause of action as pleaded the suit would fall under Article 59 of the Act of
1963.
The question as to abatement of the suit as a whole would have to be considered again in the light of the reliefs sought in the plaint. It can be seen
that saleÂdeed dated 08.06.1977 was executed by plaintiff no.1 in favour of defendant no.1 and it is stated that it was by way of security for the
amount advanced to the plaintiff no.1. Thereafter on 09.04.1985, the plaintiff no.1 executed saleÂdeed of the suit property in favour of plaintiff
no.2. As noted above, the plaintiff no.1 expired on 10.08.1991 during pendency of the suit. As per the pursis at Exhibit 68 he did not leave behind
any legal heirs and the plaintiff no.2 continued with the suit. In the light of the relief as prayed for in the plaint as to declaration of saleÂdeed dated
08.06.1977 to be illegal and considering the fact that it is the case of the plaintiff no.2 that a valid title stands transferred in his favour by virtue of
saleÂdeed dated 09.04.1985, he would be entitled to continue with the suit for seeking the aforesaid declaration as regards invalidity of the saleÂdeed
dated 08.06.1977.
It would have been a different matter if the plaintiff no.1 would have sought the relief of specific performance of the oral agreement of reÂ‐
conveyance entered into with the defendant no.1. In that situation, the effect of abatement of the suit on account of death of plaintiff no.1 would
have assumed importance. The aspect of abatement would again have to be considered in the light of the reliefs sought in the plaint. In that view
of the matter, the contentions in that regard sought to be raised by the appellants by relying upon the decisions in Motilal Mahavirprasad Sharma &
Another and Nirav Deepak Modi (supra) do not assist said submissions. It is rightly pointed out on behalf of the respondents that the decision in
Phool Rani (supra) stands overruled by the subsequent decision in Shantilal Thakordas & Others (supra). Substantial question of law at Serial Number
(III) is answered by holding that in the light of the reliefs sought in the suit, the suit did not abate as a whole on the death of plaintiff no.1 and his legal
heirs not being brought on record.
In the light of the answer given to the substantial question of law at Serial Number (I) that it was necessary for the plaintiff no.1 to have sought
the relief of specific performance of the oral agreement of reÂconveyance and that relief not having been sought, the suit is liable to be dismissed.Â
Accordingly, the judgment in Regular Civil Suit No.153 of 1985 (Old) [Regular Civil Suit No.18 of 1989 (New)], dated 06.02.1996 as well as the
judgment in Regular Civil Appeal No.372 of 1996, dated 18.10.2004 are quashed and set aside. Regular Civil Suit No.153 of 1985 (Old) [Regular
Civil Suit No.18 of 1989 (New)] stands dismissed leaving the parties to bear their own costs.
Second Appeal No.82 of 2005 is thus allowed with no order as to costs.