1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.438 OF 1991. Arjun Bhausaheb Hon Age : 36 years, Occ : Agri., R/o Kadit Bk. Tq. Shrirampur, Dist. Ahmednagar. APPELLANT VERSUS Kisan Punjaji Hon (died) Through L.Rs. 1. Smt.Manubai Kisan Hon Age : 70 years, Occ : Household, R/o Kadit (Bk), Tq. Shrirampur, Dist. Ahmednagar. 2. Sow. Sonabai Bhikaji Gursal Age : 45 years, Occ : Agri., R/o Kadit (Bk), Tq. Shrirampur, Dist. Ahmednagar. 3. Sow. Shantabai Anaji Jadhav Age : 35 years, Occ : Agri., R/o Pathare, Tq. Rahuri, Dist. Ahmednagar. RESPONDENTS ------------------------------------------------------------------------------------------------------- Mr. V.S. Bedre, the Advocate for the appellant. Mr. A. C. Darandale holding for Mr. R. N. Dhorde, the Advocate for Respondent Nos.1 to 3. ------------------------------------------------------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 10th September, 2009. ----------------------------------------------- 2 ORAL JUDGMENT : This is an appeal by the original defendant in Regular Civil Suit No.444/1985 decided by the learned Joint Civil Judge, Junior Division, Shrirampur on 10.11.1987 which has been confirmed in Regular Civil Appeal No.570/1997 decided on 25.01.1991 by the 3rd Additional District Judge, Ahmednagar by dismissing the Appeal filed by the present appellant. The respondent is the original plaintiff. The parties herein shall be referred to as on their original status as plaintiff and defendant. 2. The plaintiff filed Regular Civil Suit No.444/1985 for redemption of mortgage and delivery of possession of the mortgage property by the defendant to the plaintiff. The dispute was in respect of the land bearing Gat No.68 having area of 0.83 R situated at Mauje Kadit (Bk), Tq Shrirampur, which was owned by the plaintiff. On 08.09.1978, according to the plaintiff, he has executed the deed of mortgage with conditional sale in respect of this property in favour of the defendant. It was alleged that, the plaintiff had taken an amount of Rs.8,000/- prior to two years of execution of this mortgage deed for digging well and installation of electric motor pump. It was the condition mentioned in the said deed that if this amount of Rs.8,000/- is returned to the defendant within a period of six or seven years from 08.09.1978, then the defendant 3 shall reconvey the deed and deliver the possession of the suit property. The plaintiff further alleged that by notice dated 12.12.1984, he had called upon the defendant to accept an amount of Rs.8,000/- and to deliver the possession of the suit property. The defendant did not recovey the deed nor did show his readiness to accept the amount of Rs.8,000/- and therefore, the plaintiff filed aforesaid suit for redemption of mortgage and recovery of possession of the suit property from the defendant. 3. The defendant filed his Written statement at Exhibit-13. It was the stand taken in written statement that the transaction in question, as was evidenced by the deed dated 08.09.1978, was not a mortgage with conditional sale but it was out-right sale of the property, upon plaintiff failing to pay an amount of Rs.8,000/- by stipulated period. It was also alleged that, it was sale with right to repurchase. 4. The plaintiff examined in support of his claim his power of attorney holder Jayant Bhikaji Gurasal P.W.1 and one Bhikaji Shivram Pawar, the attesting witness to the deed dated 08.09.1978 at Exhibit-29 as P.W.2. The original deed was placed on record. The defendant examined himself as sole witness. 5. The Trial Court recorded the finding that, the document, 4 which is deed in question dated 08.09.1978, was a mortgage with conditional sale and the arguments of the defendant that it was an ought- right sale, was rejected. The plaintiff is held entitled to redemption of mortgage and accordingly, the decree was passed directing the defendant to execute reconveyance deed of the suit land to the plaintiff on or before 31st December, 1997 and failure of the defendant to execute, it was further directed that the plaintiff would be entitled to get it executed with the help of the Court. The Trial Court further directed the defendant to deliver the vacant and peaceful possession of the suit land to the plaintiff on or before 31.12.1987 and the defendant was further permitted to withdraw an amount of Rs.8,000/- deposited by plaintiff in the Court. The Trial Court has further held that, the plaintiff is further entitled for future mesne profits from the date of the decree till he gets the actual possession of the suit land by holding separate inquiry. 6. In the Appeal filed by the defendant, the Appellate Court confirmed the findings recorded by the Trial Court by holding that, it was a mortgage with condition sale of the suit property. The objection raised by the defendant in the appeal that it was obligatory on the part of the Trial Court to pass preliminary decree as provided under section 47 of the Civil Procedure Code was rejected by holding that an amount of Rs.8,000/- was already deposited in this Court by the plaintiff and nothing remained to 5 pass the preliminary decree. The appeal was thus dismissed by judgment and order dated 25th January, 1991 by the Appellate Court. 7. The instant appeal was admitted on 19.12.1991 and while admitting this appeal, the following order was passed. “ Heard. Admit, as similar appeal has been admitted by this Court being appeal No.489/1991.” There is no substantial question of law framed at the time of admission of the Appeal. The learned Counsel for the plaintiff has raised the preliminary objection that when this Court has not framed any substantial question of law at the time of admission of appeal, no such question can be raised or considered by this Court at the time of final hearing of the matter. The learned Counsel relying upon the provisions of sub-section (5) of section 100 of the Civil Procedure Code has urged that, there must be some substantial question of law already formulated and then only the another substantial question of law which was not formulated earlier can be taken up by the High Court, if it is of the view that the case involves such question. For this purpose the learned Counsel for the plaintiff placed reliance upon the decision of the Apex Court 6 reported in 2007 AIR SCW 1588 ( B.C. Shivshankara V/s D. R. Nagraj). As against this, the learned Counsel for the plaintiff contended that, even if such question of law is not framed at the time of admission, it is open for this Court to formulate the substantial question of law at the time of final hearing of the matter and only rider would be to provide opportunity to the parties to address upon the substantial question of law so framed. According to him, the appeal therefore be dismissed on that count. The learned Counsel further pointed out that, in the Judgment of the Apex Court which has been relied upon by the learned Counsel for the plaintiff, the Apex Court remanded the matter back to the High Court for formulation of substantial question of law and decide it in accordance with law. 8. Let us first decide the aforesaid preliminary objection. I have gone through the judgment of Apex Court cited supra. It is not the ratio of the said Judgment that if at the time of admission of appeal, no substantial question of law is framed, then the same cannot be framed at the time of final hearing and the appeal has to be dismissed, without considering whether such substantial question of law is involved or not. What has been laid down, is that, unless the Court is satisfied that any such substantial question of law is involved, there is no question of deciding appeal on merits. Further, if Court is satisfied that such substantial question of law is 7 involved, it shall have to formulate and provide the parties an opportunity to study it and address the Court. In view of this, I do not find any substance in the preliminary objection so raised and the same is therefore rejected. 9. On merit of the matter, the learned Counsel for the defendant urged that, what is required to be seen or looked into is the document in question which is at Exhibit-29 and in the present case to find out whether, it creates relationship of debtor and creditor and that the amount specified in the deed was given by way of security. The learned Counsel has further urged that such relationship is not borne out from the reading of the documents. He further states that, the plaintiff has not entered into witness box to vouch for the intention in execution of the document. There is no provision regarding interest incorporated in the document and possession of the property has been handed over to the defendant. According to the learned Counsel, all these circumstances indicates that it was out-right sale and not mortgage with conditional sale as has been held by the Courts below. The learned Counsel further urged that, there was no preliminary decree passed by the Trial Court which was must in suit claiming redemption of mortgage. He has further urged that, the evidence of the power of attorney holder of the plaintiff could not have been accepted by the Courts below to deduce intention on the part of the plaintiff as it was 8 strictly within the personal knowledge of the plaintiff who did not enter in to witness box. The learned Counsel therefore urged that the following substantial question arises out of the findings recorded by the Courts below:- “Whether, the document at Exhibit-29 dated 08.09.1978, was mortgage with conditional sale or was an out-right sale ?” The learned Counsel for the defendant relied upon the decision of the learned Single Judge of this Court which is reported in 1982 Mh.L.J. 538 (Nana Tukaram Jaikar V/s Sonabai Madhav Saindate and ors). 10. The learned Counsel for the plaintiff on the other hand submitted that, the Courts below have recorded the findings of fact that the transaction evidenced by Exhibit-29 is mortgage with conditional sale. The finding is arrived at after deducing the intention of the parties by reading the documents as whole and considering the surrounding circumstances at the time of execution of document. The intention is gathered on the basis of the relevant factors and the findings arrived at does not give rise to any substantial question of law as has been urged by the Counsel for the defendant. He has further urged that, the question of inadmissibility of evidence adduced by the plaintiff, through his power of 9 attorney holder, was not raised at any point of time before the Courts below nor same is raised in Memo of the Appeal. On the question of passing of preliminary decree the learned Counsel has urged that, both the Courts have considered this aspect and have rightly passed the decree which is final decree as there was no need to pass any preliminary decree. The learned Counsel for the plaintiff has also relied upon the several decision of the Apex Court and last being unreported in (2005) 13 SCC 71 equivalent to 2006 (1) All M.R. (S.C.) 85 (Chennammal V/s Munimalaiyan & ors) which consider the earlier decisions of the Apex Court. The learned Counsel also relied upon the decision of learned Single Judge of this Court reported in 2007(5) All M.R. 180 (Shivram V/s Sadashiv). 11. It can not be disputed that, basically two things are required to be established in order to find out whether, the document is mortgage by conditional sale or is sale with a condition to repurchase These two things are (i) that the document establishes the relationship of debtor and creditor, and (ii) the transfer was a security for debt, which makes distinction between two rival claims. The Trial Court has taken into consideration certain circumstances to gather the intention of the parties to determine that the transaction in question was mortgage by conditional sale. The Trial Court has held that, from the deed it appears that, plaintiff 10 has not received an amount of Rs.8,000/- on the date of the documents i.e. on 08.09.1978. The document recites that, the plaintiff had agreed to return the amount after completion of six years but before completion of seven years and on paying amount the defendant was to execute the deed of reconveyance. The condition of repurchase is incorporated in the same document. The land was actually put in possession of the defendant on the date of execution of the document and not on the date on which the money was paid by the plaintiff to the defendant. The defendant had not compelled the plaintiff to deliver the possession of the property on the date when he paid an amount of Rs.8,000/- to the plaintiff. The document in question uses the word `Mortgage'. The Trial Court has therefore arrived at finding that it was a mortgage by the conditional sale. The Appellate Court also considered the document at Exhibit-29. The Appellate Court has recorded the findings upon reading of the document that it goes to show that it was mortgage with conditional sale. 12. It is thus apparent that, both the Courts below have basically looked into the document and on its interpretation have arrived at findings that, the document was mortgage by conditional sale. Apart from this the Trial Court has also considered other factors namely; the surrounding circumstances and the situation existing at the time of execution of the deed and has arrived at finding that, it was mortgage by conditional sale. 11 The arguments of the learned Counsel for the defendant that, there is no provision regarding the interest in the document is not conclusive for deciding issue in question. Similarly, the fact whether, possession is handed over to the defendant is not a factor which would conclusively establish that, it was out-right sale. In view of this, there is no perversity in the findings recorded by the Courts below and no question of law much less substantial question of law arise out of the same in the present Second Appeal. 13. Apart from above fact that the Courts below have recorded the findings of fact regarding the transaction in question being mortgage by conditional sale, in my opinion also, the document in question can be charactarised only as mortgage by conditional sale. Perusal of the deed at Exhibit-29 clearly shows that, the amount of Rs.8,000/- was not paid on the date of execution of deed but it was paid earlier and the document was executed as security for debt which the plaintiff incurred two years prior to the date of execution of deed. Thus, there existed relationship of debtor and creditor and the document in question is executed only by way of security. The document further does not show that the amount of Rs. 8,000/- was paid by the defendant to the plaintiff towards consideration of sale. On the contrary, the said amount was paid to the plaintiff for digging well and installation of electric motor pump. The property was ancestral 12 property and not self acquired property as it appears from the document in question. The document itself indicate that, the transfer was effected by way of mortgage and there is no need even to go to the surrounding circumstances to find out the intention of the parties. 14. The Apex Court has held in its decision reported in A.I.R. 1992 S.C. 1236 (Tamboli Ramanlal Motial (dead) by L.Rs. Vs. Ghanchi Chimanlal Keshavlal (dead) by L.Rs. And another) which is infact referred in para 19 of the Judgment of the Apex Court in Channammal's case cited supra that, the attendant circumstances could be looked into only to gather the intention of the parties Such an intention, if explicitly expressed in the document itself, there is no scope for looking at the attendant circumstances. Chennammal's Judgment cited supra, also refer the earlier Judgment of the Apex Court reported in AIR 1954 SC 345 ( Chunchun Jha Vs. Ebadat All and another) in which it has been held that, the intention must be gathered from the documents itself and if the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. It has been further held that, the real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used and if there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what 13 was intended. In the instant case, as has been pointed earlier the language employed in the document itself is very clear and unambiguous in creating relationship as debtor and creditor and to show that, the document was created as security for the amount in respect of which the plaintiff incurred debt prior to two years of the execution of the documents. 15. It is not necessary to multiply other Authorities and to discuss the same except the decision which has been relied upon by the defendant in Nana Tukaram Jaikar's case, cited supra. The learned Counsel heavily relied upon the para 11 of the said Judgment which deals with findings of fact recorded by this Court holding that, the document involved therein was deed of sale with condition of repurchase. It is now well settled that, the decision based upon findings of fact arrived at in a decision, can not constitute the ratio under Article 141 of the Constitution of India and what constitute the ratio under Article 141 of the Constitution of India, is the decision on the question of law. Hence the said Judgment is of no avail to the defendant. The learned Counsel has raised the question of power of attorney holder being examined in the instant case to prove the document in question. It may at this stage, seen that the document in question has not been proved by the power of attorney holder of the plaintiff but same is proved by attesting witness P.W.2 Bhikaji Pawar. Once the document is proved, the same becomes admissible in evidence. None of the findings 14 even recorded by the Courts below, are based upon the evidence of the power of attorney holder. Apart from this, this question was neither raised by the Courts below nor was raised in the Memo of Appeal. 16. In view of above, there is no substance in the present Appeal, same is therefore dismissed with no order as to cost. (R. K. DESHPANDE ) JUDGE GAS/sa438.91