Venkatammal and Others vs Kadhirappa Naidu and Others

S.S. Subramani, J.—Plaintiffs in O.S.No. 450 of 1983, on the file of the District Munsif''s Court, Krishnagiri, are the appellants.

Suit filed by them was one for declaration of title and to restrain the defendants and their men from in any way interfering with the plaintiffs''

peaceful possession and enjoyment of the suit property, and for consequential reliefs.

Originally there was only one plaintiff. But, on his death, his widow and children were impleaded as plaintiffs 2 to 4.

The material averments in the plaint are as follows:-

(Deceased) Plaintiff purchased the property having an area of 3.22 acres in Survey No. 120. The suit property is a portion of the same, having an

area of 1.97 acres. The entire 3.22 acres was purchased by the deceased plaintiff as per sale deed dated 22.6.1945, and ever since that date, he

was in possession.

It is alleged that the deceased plaintiff borrowed certain amounts from his sister-in-law (Late) Gopamma, and in order to secure the amount, a

mortgage by conditional sale was executed in respect of 2.75 acres of land, and major portion of the plaint property was also included therein. A

deed of reconveyance was also executed on the same day by deceased Gopamma in favour of deceased plaintiff. Though it was registered as a

sale deed, actually it was only a deed of mortgage by conditional sale. It is said that Gopamma never intended to enjoy the property, and till her

death, she never interfered with the possession of the deceased plaintiff. It is said that they never treated it as a sale deed.

On 12.5.1969, an area of 1.25 acres was sold, in which the deceased and Gopamma were parties, and the sale deed was executed in favour of

one Muniappa Naidu, for a total consideration of Rs. 1,500. Out of the said amount, the amount due to the deceased Gopamma was also

discharged, and ever since that date, the remaining portion continued in possession of the plaintiff as absolute owner. Once the debt was

discharged, there was no encumbrance over the property. Defendants are close relations of Gopamma. Gopamma died in the year 1976. It is said

that the first defendant in this case, claiming himself to be the owner of the property, executed a deed in favour of the second defendant, and on

coming to know about it plaintiffs issued a notice informing him that he has no right over the property. For the said notice, no reply was sent. It is

further said that the action of the defendants in executing the sale deed is unauthorised and the plaintiffs apprehend that the intention of the

defendants is to interfere with their possession of the suit, property. They even attempted to trespass into the suit property, but it was successfully

thwarted. But the plaintiffs apprehended that the defendants might commit trespass into the suit property, and that is why they filed the suit for the

reliefs mentioned above.

In the written statement filed by the first defendant, he contended that originally the property belonged to deceased plaintiff. But, as per

document dated 6.7.1967, deceased plaintiff conveyed his absolute right over the property to deceased Gopamma. It is not a mortgage by

conditional sale. But it was a sale with a condition to repurchase. It is further said that since the period for repurchasing the property is over, the

suit is also barred by limitation. Defendants are enjoying the property as absolute owners and the plaintiffs'' claim to repurchase the property is also

disputed.

Regarding the sale in favour of Muniappa Naidu, it was stated that during that time, the period stipulated for repurchase was not over and,

therefore deceased plaintiff was also made a party and in the sale deed in favour of Muniappa Naidu, the admitted property of the deceased

plaintiff was also included. So the reason for the deceased plaintiff joining in the sale deed of 1969, as interpreted by the plaintiffs is not correct.

Defendants say that they are in absolute possession of the property and , therefore they pray for dismissal of the suit.

On the above pleadings, trial court, after taking oral and documentary evidence, came to the conclusion that the plaintiffs are entitled to succeed.

The document Ex.A.1 was interpreted by the trial court as a mortgage by conditional sale and the plaintiffs are in possession. The consequential

reliefs were also granted.

Aggrieved by the decision, defendants preferred A.S.No. 44 of 1994, on the file of the District Judge, Krishnagiri. The lower appellate Court,

by the impugned judgment, set aside the decree and held that the document dated 6.7.1967 is an absolute sale, and the agreement, since it has

been executed by a separate document, is only an agreement to repurchase. Plaintiffs having not taken any steps to repurchase the property have

no claim over the same. The suit was dismissed.

It is against the said judgment, plaintiffs have preferred this second appeal.

Since the defendants have entered a caveat, the entire appeal was heard on merits.

The only point that is urged by learned counsel for the appellants is that the interpretation by the lower appellate court regarding the document

dated 6.7.1967 is not correct. The intention of the parties has not been considered and, therefore, the same requires reconsideration by this court.

I will first consider what is the document that has been executed on 6.7.1967. It is a sale deed executed for a consideration of Rs. 1,000. The

relevant portion of the deed says that it is a sale deed executed by Vajiappan alias Venkatappa Naidu in favour of Gopamma wife of Venkatappa

Naidu. In the body of the document it is further stated that he has executed that deed of sale to discharge a debt due by him to the Society in

Madappalli Village, and, in consideration of Rs. 1,000 he conveys the said property to Gopamma. He further says that as on that date, she may be

in possession of the property as absolute owner with all rights over the same. He also agrees that she may be in possession along with her children

and grandchildren. He further declares that as on that date, himself or any person claiming under him will have no right over any portion of the said

property. From this document, it is clear that there is no debtor and creditor relationship between the vendor and purchase. He conveys the right

over the said property to discharge a debt due to a society. There is a further declaration that himself and his successors-in-interest will have no

interest over the same and the purchaser will be in possession of the property as absolute owner, and this makes it clear that the document was

never intended as a mortgage by conditional sale. While interpreting a document, in a recent decision of the Supreme Court, reported in Tamboli

Ramanlal Motilal (dead) by L.Rs. Vs. Ghanchi Chimanlal Keshavlal (dead) by L.Rs. and another, their Lordships said; ""In order to appreciate the

respective contentions, it is necessary for us to analyse Ex.26 dated December 11, 1950. Before that, it is necessary to utter a word of caution.

Having regard to the nice distinctions between a mortgage by conditional sale and a sale with an option to repurchase, One should be guided by

the terms of the document alone without much help from the case law (Italics). Of course, cases could be referred for the purposes of interpreting

a particular clause to gather the intention. Then again, it is also settled law that nomenclature of the document is hardly conclusive and much

importance cannot be attached to the nomenclature alone since it is the real intention which requires to be gathered"".

In the case cited, their Lordships were considering a document which was styled as a deed of conditional sale. After taking into consideration

the terms of the document, which are incorporated in paragraph 17 of the Reports, their Lordships said that it is an absolute sale. Their Lordships

gave emphasis on the transfer of ownership. In that case, the argument was put forward on the basis of the decision reported in Pandit Chunchun

Jha Vs. Sheikh Ebadat Ali and Another, to contend that the document concerned is a deed of mortgage by conditional sale. Their Lordship

rejected the contention by answering the same as follows:-

The property is sold conditionally for a period of five years and possession is handed over. At the same time, the document proceeds to state

Therefore, you and your heirs and legal representatives are hereafter entitled to use, enjoy and lease the said houses under the ownership right

(Italics as in original reports).

Their Lordships further held: It is this distinguishing point which has to be borne in mind because an argument was levelled that in Pandit Chunchun

Jha Vs. Sheikh Ebadat Ali and Another, also there was a clause transferring possession. But in this case, the enjoyment by the transferee has to be

under the ownership right. That makes all the difference."" Their Lordships in that case, further gave importance to the right of the transferee to deal

with the property in any manner and said that all the clauses are really consistent with the express intention of making the transaction a conditional

sale with option to repurchase, and not a mortgage by conditional sale. In that case, also the entire consideration was received to discharge certain

debts. As in this case, as between the vendor and purchaser, there was no debtor and creditor relationship, if we go by the terms of the document,

it cannot be doubted that Ex.A.1 in this case is an outright sale and not a mortgage by conditional sale as contended by learned counsel for the

appellant.

Before the lower appellate Court, an argument was taken that the mortgage by conditional sale can only be under a single document and if two

documents are executed as in this case, it can only be treated as a sale with condition to repurchase. In the decision of the Supreme Court (Cited

supra), the very document contained all these clauses and even the nomenclature was a deed of conditional sale and a period of five years was

provided to exercise the option. It spite of all these clauses contained in a single document, the Supreme Court said that we are governed only by

the terms of the document, and the nomenclature is of no use. In this case, Ex.A.1 does not refer to any of the clauses either to repurchase or a

deed of conditional sale. It stands independent of all documents. If that be so, even without considering any of the other decisions cited before the

lower appellate court, Ex.A.1 can be treated only as a sale deed simplicitor. The absolute title over the property was conveyed to Gopamma.

On the same date, an agreement was also executed whereby Gopamma agreed to reconvey the property, if the entire consideration is returned

within a period of three years. That agreement can only be treated as an agreement of reconveyance or an agreement of repurchase. The title

absolutely vests with Gopamma alone. In this case, the deceased plaintiff has not exercised his right to repurchase within the period. His case that

in 1969 when a sale deed was executed in favour of one Muniappa Naidu, he also joined along with Gopamma and he says that the consideration

received from Muniappa Naidu was utilised to discharge the debt. I have already said that Ex.A.1 does not create a debtor and creditor

relationship. Circumstances also believe the statement. On going through that document it is clear that deceased plaintiff has sold his other

properties also and the document is also executed within the term within which repurchase had to be obtained. So, mere joining in the document

will not confer a right in him, nor can it not be construed that he exercised the option.

In view of the decision last cited by me, I do not think it will be necessary to make mention of the other decisions cited by learned counsel for

the appellant. I do not find any merit in the second appeal and the same is, therefore, dismissed. No costs.