Srimati Urbasi Dei vs Akshaya Kumar Mohapatra and Another

S. Acharya, J.—Defendant No. 2 in the suit has preferred this appeal against the decision of the Subordinate Judge, Jajpur in Title Appeal No. 15 of 1972 reversing the decision of the Munsif, Jajpur in, Title Suit No. 129 of 1971.

The Plaintiff''s case in short is that the suit land, measuring Ac. 0. 40 decimals appertaining to Khata No. 172 in mouza Shyamsundarpur, fell exclusively to his share and be was in exclusive possession and enjoyment of the same. He, being in need of money, took a loan of Rs. 100/- from Defendant No. 1 and mortgaged the suit land, as per Ext. A, to the mother-guardian of Defendant No. 1. as the latter was then a minor. While mortgaging that property it was stipulated that on repayment of the principal amount of Rs. 100/- within 3 years, i. e. by 1-7-1958, the Plaintiff would get back possession of the suit land and Defendant No. 1 would retransfer the land to the Plaintiff. As the Plaintiff could not repay the amount to Defendant No. 1, the land continued in the possession at Defendant No. 1, and he was appropriating the usufructs of the same. On the expiry of 15 years from the date of the mortgage of the property the Plaintiff''s loan under the law was automatically satisfied and so the Plaintiff demanded retransfer of the suit property to him, but Defendant No. 1 on some pretext or other put off the said demand of the Plaintiff. At last the Plaintiff came to learn that Defendant No. 1 had illegally sold the said property to Defendant No. 2 under the registered sale deed Ext. B dated 27-9-1961. As Defendant No. 1 was not legally competent to dispose of the said property, Defendant No. 2 by the said sale has not acquired any right, title and interest in the same. Hence this suit for declaration of the Plaintiff''s right, title and interest over the suit land and for recovery of possession of the same from the Defendants.

Defendants 1 and 3 did not contest the suit and were set ex parte.

Defendant No. 2 only filed a written statement and contested the suit. Her case, inter alia, is that the suit land was not given to Defendant No. 1 on mortgage, but the Plaintiff sold the suit land to Defendant No. 1 for legal necessity on receipt of cash consideration of Rs. 100/-, which was the market value of the suit land at that time. The said transaction was a sale out and out with a condition of repurchase within a period of 3 years. Defendant No. 1, after taking delivery of possession of the suit land, reclaimed and made improvement on the same at heavy cost, and on 27-9-1961 he sold the same to Defendant No. 2 by a registered sale deed (Ext. B). Defendant No. 2, after purchasing the said land, took possession of the same and is all along in peaceful possession of the same. The suit land has also been mutated in her name, and she is paying the rent for the same. The Plaintiff, with the connivance of his brother, proforma Defendant No. 3, and also of Defendant No. 1, has filed this suit only to harass Defendant No. 2 and to throw a cloud of doubt on her title over the suit land.

4, The trial Court dismissed the Plaintiff''s suit on the finding that the said transaction was not a mortgage by conditional sale but was an out and out sale with a condition to retransfer the property by a separate sale deed on repayment of the consideration money by the Plaintiff to Defendant No. 1 within three years from the date of the execution of Ext. A. The Plaintiff having not exercised his said right within the stipulated period of three years has lost the right to repurchase the property on repayment of the consideration money, and so he has not entitled to the declaration and reliefs asked for in this suit.

The appellate Court has held that the said transaction was a mortgage by conditional sale and not a sale with a condition to repurchase, and as Defendant No. 1 took possession of the property immediately after the execution of Ext. A, the loan of Rs. 100/- taken by the Plaintiff under the said transaction should be deemed as automatically satisfied as per the provisions of Section 17 of the Orissa Money Lenders Act, and the Plaintiff thus would be entitled to the declaration and other reliefs as prayed for in the suit.

The only question which has to be decided in this appeal is whether the aforesaid transaction between the Plaintiff and Defendant No. 1 with regard to the suit property was a mortgage by conditional sale or it was a sale with a condition for repurchase.

It is well settled that in a mortgage by conditional sale the relationship of a debtor and creditor continues between the parties and the right of redemption remains with the debtor, whereas in the case of a sale with a condition for repurchase the owner transfers all his rights in the property to the purchaser reserving only the personal right to repurchase the property.

In order to decide as to which of the two above-mentioned categories the transaction in question belongs, one has to ascertain the intention of the parties on a consideration of the contents of the document of the said transaction and other relevant and surrounding circumstances. The mere form in which the deed is clothed is not decisive. Of course, if the language of the document is plain and ambiguous and it clearly indicates the nature of the transaction, then it must be given effect to as a document of that particular nature. But when the recitals in the deed are ambiguous, that poses difficulty in ascertaining the nature of the transaction. In the latter case, the intention of the parties has to be ascertained "from the contents of the deed with such extrinsic evidence as may, by law, be permitted to be adduced to show in what manner the language of the deed is related to existing facts" (See P.L. Bapuswami Vs. N. Pattay Gounder, , and Bhoju Mandal Vs. Debnath Bhagat, .

In the present case, Ext. A is described as a "SARTI KABALA" at the top, and in the body of the deed it is described as "SARTI KABLA PATRAM TINI BARSA NIMANTE".

In Law Lexicon, P. Ramanath Iyer gives the following meanings to the word ''Kabala'':

Any deed of conveyance or transfer of right or property; any contract or bargain or sale; a bond; a bill of sale; title deeds and the like.

In the case reported Bhoju Mandal Vs. Debnath Bhagat, , their Lordships while construing the expression "Tamasuk Sarti Kabala" observed that even accepting the widest meaning given to the word ''Kabala'', "the said expression can only mean a bond or contract by way of conditional sale. So translated, the expression is consistent both with a mortgage as wen as with a sale and therefore that is a neutral circumstance". The above two descriptions of the deed in Ext. may apply both to a mortgage by conditional sale as well as a sale with a condition for repurchase within a period of 3 years. So, the said heading and description of the deed do not give a definite clue to ascertain the nature of the deed. At all other places in the deed, and specially in the paragraph where the terms of the conveyance or transfer of the right in the property are stated, the transaction is mentioned as a sale and the property is mentioned as sold by the said deed. In the body of that Kabala it is stated that the consideration money for which the property in question was sold by that deed represents the actual price of the said property as prevalent in the locality at the relevant time. Again it has been mentioned therein that on receipt of the consideration money the executant delivered possession of the said property to the vendee, and the vendee, having acquired the ownership of the said property by purchasing the same, would continue to possess the same on his own rights from that time onwards. After making the above averments, towards the end of the Kabala it is stated that the only condition between the vendor and the vendee was that if the vendor returned the consideration money within three years, i. e. by 1-7-1968, then the vendee would retransfer the said property by a separate sale deed in favour of the vendor, the vendee on the fulfillment of that condition would cease to have any right, title and interest or possession over the said property; and if the consideration money was not returned within the said stipulated period, the vendee would continue to enjoy the said property as purchaser which right had devolved on him as already stated earlier in the deed. In the last sentence of Ext. A it is stated that the said deed is a ''Bikri Kabala'', i. e sale deed. The transfer of the right and interest in the property has not been postponed till a future date. Rather all rights, title and interest in the said property were transferred to the vendee (d. 1) on receipt of proper consideration money with the only condition that Defendant No. 1 would retransfer the said property to the Plaintiff by a separate sale deed if the consideration money was repaid by the Plaintiff to Defendant No. 1 within the period of three years. From the averments in the said deed it is also clear that on selling the property by the said deed, possession of the property was delivered to Defendant No. 1. The Oriya equivalent of the terms ''sold'', ''vendor'', ''vendee'' and ''sale deed'' used in that document are expressions of conveyance by sale and frequent repetitions of these words and their derivatives clearly indicate that the parties intended to transfer the right, title and interest in the property by the said deed, allowing only the vendor to repurchase the same within a stipulated period on repayment of the consideration money he received at the time of selling away the property. Pay mens of interest on the said consideration money was not stipulated certainly for the obvious reason that possession of the property was delivered to the vendee.

Both the Courts below have found that the consideration money for which the said transaction was effected was the market price of the suit property prevalent at the time of that transaction. The Plaintiff on receipt of the said market price executed the said deed and delivered possession of the property to Defendant No. 1 which are important circumstances to indicate that the said transaction was a sale. D.W. 1, who admittedly was the mediator for the said transaction has testified to the fact that at the time of the said transaction there was a bargain regarding the consideration money for the suit land. This again is another telling circumstance which strengthens one conviction that the said transaction was a sale and not a mortgage, as in a mortgage there will be no necessity for a bargain for the money to be lent out against the property mortgaged. The Oriya equivalent of the word ''loan'' is nowhere mentioned in the said document. Rather, it is specifically stated therein that the Plaintiff having received the prevailing market price of the suit land as consideration for the said transaction conveyed his right, title and interest in the suit land to Defendant No. 1 and simultaneously delivered possession of the same to the vendee. Moreover, a mortgagee in lending money would not give the market price of the property which is mortgaged, for he would always insist upon a reasonable margin to provide for all the possible contingencies of such a transaction.

The Plaintiff has admitted that the suit land has been mutated in, favour of Defendant No. 2. Exts. C to C/2 show that Defendant No. 2 paid rent for the suit land from 1963-64 till 1971-72. There is nothing on record to show that the Plaintiff ever opposed the mutation of the said land in favour of Defendant No. 2. The mutation of the land in favour of Defendant No. 2 and payment of rent by her in respect of the suit land are further indications signifying the transaction to be a sale and not a mortgage.

A short period of three years provided in Ext. A for repayment of the consideration money, and reconveyance of the suit land by a separate sale deed by Defendant No. 1 to the Plaintiff, are also circumstances to show that the transaction was a sale with a condition to repurchase and not a mortgage by conditional sale.

(See Hayath Saheb and Ors. v. B. Bharamanna and Ors. AIR 1951 Mys 105.) Moreover, the fact, that the Plaintiff seeks the relief of redemption after about 15 years of the said transaction and has not offered any convincing explanation for the said unusual delay, is again another circumstance which militates against the Plaintiff''s case of mortgage by conditional sale. (See Mt. Rukmini Devi and Ors. v. Rambilas Singh and Ors. AIR 1951 Ori 359.)

On the above considerations, I am satisfied that the transaction in question was not a mortgage but a sale outright with a condition for repurchase. The conclusion arrived at by the trial Court in this connection is correct and that of the lower appellate Court is not correct.

Accordingly, the judgment and decree of the lower appellate Court are set aside and this appeal is allowed. In the circumstances of the case there will be no order as to costs of this appeal.

Appeal allowed.