- 1 - ingalesa30.11 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.30 OF 2011 1. Hirabai Annappa Halsawade } deceased byher legal heirs } A.Prabhu Rama Nule } since deceased by his L.Rs } 1.Sharabai Prabhu Nule & ors } ..Appellants } (Orig.Defendants) vs 1.Babgonda Mhadgonda Patil } since deceased by legal heirs } A.Dhondubai Babngonda Patil &ors }.. Respondents (Orig.Plaintiffs) Mr.T.S.Ingale for Appellants None for Respondents CORAM: G.S.Godbole, J DATE: 8 July 2011 ORAL JUDGMENT 1. Heard Mr.Ingale for the Appellants. R.C.S.No. 44/1994 was filed by Babgonda Mhadgonda Patil and Vilas Mhadgonda Patil in the Court of learned C.J.J.D. Ichalkaranji for redemption of mortgage. It was the case of the Plaintiffs that the Plaintiff No.1 had transferred the suit property to Defendant No.1 by executing a Mortgage By Conditional Sale on 15.7.1966 for a sum of Rs.1300/- and within 10 years the mortgage was to be redeemed. It was the case of - 2 - ingalesa30.11 the Defendants that the transaction in question was not a mortgage but was an out and out sale. The Trial Court decreed the suit by its Judgment and Decree dated 29.7.2008 by recording a finding that the said document dated 15.7.1966, which was marked as Exhibit 80, was a Mortgage By Conditional Sale and not an out and out Sale Deed. This finding is recorded after extracting the contents of the document in paragraph 28 and the finding regarding the nature of document is recorded in paragraph nos. 29 and 30 of the Judgment of the Trial Court. 2. Aggrieved by the said decree of redemption, Civil Appeal No.41 of 2008 was filed in the Court of learned District Judge-I Ichalkaranji. During the pendency of the Appeal, Application Exhibit 34 was filed for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for producing on record a document purported to have been executed by Babgonda Patil in favour of the original Defendant No.1 Hirabai Halsawade on 11.6.1975. The learned District Judge-I Ichalkaranji dismissed the Appeal by the impugned Judgment and Order dated 24.7.2010 and in paragraph 20 of the said Judgment, - 3 - ingalesa30.11 the District Judge has given reasons for not entertaining Application Exhibit 34. 3. By order dated 17.6.2011 passed in this Appeal, the learned Advocate of the Appellants was directed to place on record copy of the Application Exhibit 34 and the document dated 11.7.1975 which have accordingly been placed on record. Though Application Exhibit 34 was not allowed, despite this, for considering whether any purpose would be served by considering the said Application Exhibit 34; copy of the Agreement which was sought to be produced with said Application Exhibit 34 was perused. A perusal thereof shows that original Plaintiffs-Babgonda Patil and Vilas Patil are shown as promissors and original mortgagee Hirabai is shown as promisee. However, said document is purportedly signed only by Vilas Patil. 4. According to Mr Ingale, by the said document at least Vilas Patil had agreed to sell the suit land and hence possession of the mortgagee must be treated as a possession as and by way of part performance under section 53 A of Transfer of Property Act,1882 and deserves to be protected. - 4 - ingalesa30.11 5. A perusal of the Judgment of the Appellate Court shows that even the Appellate Court has recorded a finding of fact that the nature of the document Exhibit 80 dated 15.7.1966 is Mortgage By Conditional Sale and it is not an Outright Sale Deed as contended by the Defendants. This finding of fact, arrived at by the Appellate Court and recorded in paragraph nos.15 to 19 of the Judgment, is not found to be perverse or contrary to the settled principles regarding interpretation of documents. 6. In fact, Application Exhibit 34 which was filed by the Defendants in Appeal shows that by accepting that nature of the transaction was a mortgage, it was sought to be contended that the equity of redemption has been extinguished by the act of parties. 7. Mr.Ingale relied upon the following Judgments to contend that, if aforesaid document sought to be filed with Exhibit 34 had been allowed to be filed, then the Appellants would have been able to show that the equity of redemption of mortgage had been - 5 - ingalesa30.11 extinguished. (i) AIR 1940 Oudh 97 (KISHEN GOPAL vs ABDUL LATIF KHAN) A perusal of this Judgment however shows that the ratio of the said Judgment may not be of any help to the Appellants. In that case the court was considering a situation where there was a completed sale by some of the co-mortgagors and despite this the Court had held that the equity of redemption available to other mortgagors does not get extinguished. (ii AIR 1963 ANDHRA PRADESH 420(JALAPPA vs NARASIMHA SETTY) Reliance placed on this Judgment to buttress the submission that the equity of redemption can be extinguished even before the period fixed for redemption and that even one of the co-mortgagors can have such a right of redemption extinguished by his acts is also difficult to accept. This is for the simple reason that in that case, as noted by the - 6 - ingalesa30.11 Division Bench in paragraph 17, the manager of the family who had incurred loan and executed mortgage had himself executed the conveyance for discharging the said Mortgage Debt. Thus, in case of a completed sale by mortgagor, right of redemption will obviously get extinguished. The aforesaid case is clearly distinguishable on facts and hence is of no assistance. (iii) 22 BLR 965 SHANKAR DHONDDEV VS.YESHWANT RAGHUNATH GAITONDE is sought to be relied upon by Mr.Ingale. However facts of the said case clearly show that the mortgagor who was plaintiff had executed a document transferring ownership of the property in favour of mortgagee and had filed the suit after 48 years which was not entertained on that ground. Moreover again this case is of a completed transfer and will be of no assistance of Mr.Ingale. 8. A perusal of Section 60 of the Transfer of Property Act, 1882 shows that every Mortgagor has a right of redemption. Proviso to the said Section makes it clear that unless such a right is - 7 - ingalesa30.11 extinguished either by the act of parties or decree of Court, the same subsists. 9. Once the document was treated as a document executed as and by way of a security for loan; in the suit for redemption, the Trial Court was justified in passing a decree for redemption after holding that the right of redemption has not been extinguished. 10. The Courts below have recorded concurrent findings of fact regarding the nature of the transaction and no perversity is found in the said concurrent findings. 11. Hence, no question of law is involved in the present Second Appeal and the same is dismissed. G.S.Godbole, J