Smt. Chinta Devi and Another vs Smt. Saraswati Devi

Gurusharan Sharma, J.—Defendants are appellants. On 13.12.1995 the plaintiff executed a registered sale deed (Exhibit-B) in favour of the defendant No. 1 in respect of the suit property, for a consideration of Rs. 30,000/- and simultaneously the defendant No. 1 executed a registered deed of agreement (Exhibit-3) in favour of the plaintiff undertaking to reconvey the said property on the same consideration amount within a period of five years, commencing from 1.1.1986 to 31.12.1990.

On 14.11.1990, the plaintiff sent lawyer''s notice (Exhibit- 1) to the defendants to reconvey the property in question as she was ready and willing to pay the amount of consideration before the Sub-Registrar. Hussainabad. On 27.11.1990 defendant No. 2, husband of defendant No. 1 wrote a letter (Exhibit-7) to plaintiff''s advocate, who had sent aforesaid notice that he was ready to receive the aforesaid amount of Rs. 30,000/- from Saraswati Devi in Registry office. Hussainbad on any date and time fixed by her.

On 20.12.1990 the plaintiff filed Title Suit No. 59 of 1990 against the defendants for specific performance of agreement dated 13.12.1985 and direction to receive the consideration amount of Rs. 30,000/-, to execute and register deed of reconveyence with regard to the suit property and to hand over possession thereof to the plaintiff.

Defendants filed written statement stating, inter alia, that in fact the transaction (Exhibit-3) initiated and completed between the plaintiff on the one hand and the defendant No. 1 on the other was a transaction of sale, pure and simple.

Defendant No. 1 in her turn, vide Exhibit-3 had allowed plaintiff to repurchase the property from her for the same consideration amount, if she so intended and she had allowed only a period of five years to be the duration of such opportunity with clear understanding, which was effective from 13.12.1985 and such period of five years came to an end on 12.12.1990 and the period from 1.1.1986 to 31.12.1990 as mentioned in the said document was simply artificial, ab initio void and the plaintiff cannot take advantage thereof. Further according to defendant No. 1 plaintiff was never willing and ready to get back the suit property and lost opportunity offered to her through Exhibit-3, after expiry of five years'' period commencing from execution of the said deed.

Trial Court decreed the suit holding that from evidence it was clear that plaintiff was always ready and willing to make payment of the consideration amount and the defendant No. 2 had also expressed his willingness to accept and receive the consideration amount on behalf of his wife through letter (Exhibit-7). Exhibit-3 was binding on the defendants and the defendant No. 1 was bound to reconvey the suit premises to the plaintiff. Court of appeal below has also affirmed trial Court''s finding in Title Appeal No. 10 of 2000 filed by defendants against the trial Court judgment and decree.

Mr. V. Shivnath, appellant''s counsel submitted that Exhibit- B was only a mortgage and not a sale deed. As the plaintiff had not jointed Exhibit-3 and so it was not a concluded contract, enforceable in law. Further in terms of Exhibit-3 payment of consideration amount of Rs. 30,000/-having not been made upto 31.1.1990, the plaintiff was not entitled to a decree for specific performance of the said agreement.

Under the proviso to Section 58 @ of the Transfer of Property Act, if the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage, whether the documents are contemporaneously executed or not. If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. This aspect of the matter was considered by the Apex Court in Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Another, , and was observed that the legislature had made a clear cut classification and executed transactions embodied in more than one document from that category of mortgages, therefore, it is reasonable to suppose that persons who, after the amendment in Section 58 of the Transfer of Property Act choose not use two documents, do not intend the transaction to be a sale, unless they displace the presumption by clear and express words; and if the conditions of Sec-lion 59 are fulfilled, then the deed should be construed as a mortgage.

In the present case a perusal of Exhibit -B shows that it was, prima facie, an absolute conveyance, containing nothing to show that the relation of debtor and creditor exist between the parties. There is no recital therein that the vendor shall have a right to repurchase.

It is well settled that intention of parties as apparent from the recitals in the deed is the donimatory factor to decide whether a given transaction is a mortgage

by conditional sale or a sale deed right with a condition of repurchase.

In Exhibit-B it stood clearly recited that the vendee was at liberty to get her name mutated in the revenue records of the State Government in place of vendor and was also entitle to transfer, mortgage or to use the vended property In any manner she liked. This also goes to show that the transaction in question was out and out a sale. I, therefore, confirm the finding of the Courts below that Exhibit-B was not a mortgage by conditional sale, rather a sale deed.

In view of clear recital in Exhibit-B that the five years'' period mentioned therein was to commence from 1.1.1986 and not from 13.12.1985, when the said document was executed, in my opinion, there is no substance in the argument of Mr. V. Shivnath that the five years'' period in question was effective on 13.12.1985 itself. The Courts below, therefore, rightly decided of commencement of the five years'' period in question.

Both the Courts below concurrently held that the plaintiff was always ready and willing to perform her part of agreement, Exhibit-3 as required u/s 16 of the Specific Relief Act. The said finding is not interfered u/s 100 of the Code of Civil Procedure. No substantial question of law arises to be considered in this Second Appeal. It is dismissed.