( 1 ) sa235.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 235 OF 2007 WITH CROSS OBJECTION ST. NO. 9155 OF 2007 1. M/s. Rajeshwar Bhimrao Patil & Co. .. Appellants A Partnership firm, Mondha Market, Parli, Tal. Ambajogai, Dist. Beed, Through its Partners, Rampal s/o. Jainarayan Lohia, Age. 62 years, Occ. Business, R/o. As above. 2. Rampal s/o. Jainarayan Lohia, Age. 62 years, Occ. Business, R/o. As above. 3. Rajeshwarrao s/o. Bhimrao Patil, Age. 58 years, Occ. Business, R/o. As above. Versus 1. Laxmansingh s/o. Rampratapsingh .. Respondents Hajari – Died through his legal heirs 1-A. Radhabai Laxmansingh Hajari Age. 62 years, Occ. Household, R/o. Ghatnandur, Tq. Ambajogai, Dist. Beed, Now at present residint at Malgalwarpeth, Ambajogai. 1-B. Subhash s/o. Laxmansingh Hajari, Age. 38 years, Occ. Agri., R/o. Ghatnandur, Tq. Ambajogai, Dist. Beed. Now at present R/o. Mangalwarpeth, Ambajogai. ( 2 ) sa235.07 1-C. Sunil s/o. Laxmansingh Hajari, Age. 34 years, Occ. Service, R/o. Ghatnandur, Tq. Ambajogai, Dist. Beed, now at present R/o. Mangalwarpeth, Ambajogai. 1-D. Dr. Jaishree w/o. Ram Charan Aged. 38 years, Occ. Medical Practitioner, R/o. Parbhani, Dist. Parbhani, Now at present r/o. Chatannya Hospital, Aurangabad. 1-E. Bharti w/o. Ajay Thakur, Age. 40 years, Occ. Household, R/o. S.B. College, Aurangabad. 1-F. Dr. Madhavi w/o. Harikishan Gadhwal, Age. 36 years, Occ. Medicational Practioner, R/o. Ambajogai, Mangalwar Peth, Ambajogai, Dist. Beed. Mr. Sandeep S. Ladda, Advocate for the appellant Mr. K.J. Suryawanshi, Advocate for respondent No. 1A Mr. Shrikant Kulkarni, Advocate for respondent Nos. 1C, 1D & 1F. CORAM : A.V. NIRGUDE, J. DATED : 13.09.2011 ORAL JUDGMENT :- 1. This Second Appeal is filed against concurrent findings of the Courts below that the respondent/ plaintiff could prove through oral evidence that he had orally mortgaged his property to his tenant, though on the day of mortgage instead of executing a document of mortgage, a sale-deed was executed. The tenant is the ( 3 ) sa235.07 appellant here. When the appeal was admitted, following substantial questions were framed by the learned predecessor. They are as under :- i. Whether the Courts below committed patent error while treating the document styled as sale deed dated 13.07.1976 as a mortgage with condition of reconveyance though the specific term regarding reconveyance was not embodied in the document itself and as such it was not covered by Section 58(c) of the Transfer of Property Act? ii. Whether in the facts and circumstances of the present case, the Courts below have committed patent illegality in upholding the plea of the plaintiff regarding loan transaction and nominal nature of the sale-deed executed by him on 13.07.1976? QUESTION NO.1 :- 2. The respondent/plaintiff is not trying to treat the suit document styled as sale-deed as a “mortgage deed with condition of reconveyance”. It is his case since beginning and which is accepted by the Courts below that there occurred a transaction of mortgage orally between he and the appellant, but for the purpose of securing the amount of loan a nominal sale-deed was executed. By no stretch of imagination, it can be said that the respondent/plaintiff was trying to prove or was contending that the sale-deed was a deed of mortgage. He admitted very clearly that it was a sale-deed, but he ( 4 ) sa235.07 asserted and proved that the sale-deed was never intended to be acted upon, but it was a nominal one. In other words, he suggested that though he executed sale-deed in favour of the appellant/defendant, he did not convey the property to him. He further contended that though the sale-deed was executed by him, he still remained owner of the same and that the appellant/defendant did not become owner of the same. In other words, he suggested that there occurred oral transaction of mortgage by conditional sale. There is no dispute between the parties about the interpretation of the sale-deed. The language of the sale-deed is not ambiguous. It apparently indicated that it was an out and out sale. Therefore, it was an uphill task for the respondent/plaintiff to prove that the document was sham but there occurred a transaction of mortgage. The respondent/plaintiff led evidence to prove his case. The first and foremost obstacle in his way was provisions of Section 91 and 92. Apparently, he would not be able to lead evidence in respect of the contents of a written document. However, he places reliance on judgment of the Supreme Court in the case of Gangabai w/o. Rambilas Gilda Vs. Chhabubai w/o. Pukharajji Gandhi, 1982 AIR (SC) 20 to remove this apparent obstacle in his way. The Supreme Court in this judgment held as under :- ( 5 ) sa235.07 “11. The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar and another v. Vedathanni. The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.” 3. In view of this, since the respondent/plaintiff was not relying upon the document embodied the terms of the transaction, he was free to lead the evidence in ( 6 ) sa235.07 respect of the intention of the parties contrary to the terms mentioned in the document. 4. The Courts below believed his case and held concurrently that the transaction between the parties was in-fact a mortgage. I am not finding any patent error in appreciation of the evidence. The question is – Which kind of mortgage is this? This certainly is a mortgage by a conditional sale because there occurred a sale of the suit property in favour of the mortgagee. The learned advocate appearing for the appellant tried to take advantage of this and asserted that if this transaction was a mortgage by conditional sale, then the respondent/plaintiff ought to have brought his case within the parameters of provisions of Section 58 (c) of the Transfer of Property Act. Section 58 (c) reads as under :- “58 (c) Mortgage by conditional sale – Where the mortgagor ostensibly sells the mortgaged property - on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made by the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale; Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.” 5. The learned advocate appearing for the appellant placed specific stress on the proviso underlined above. ( 7 ) sa235.07 He asserted that if the sale-deed on record did not incorporate terms of re-conveyance in it, then it cannot be a mortgage by conditional sale. As said above, this argument is not convincing because the respondent/ plaintiff nowhere stated or asserted that the sale-deed was a deed of mortgage. It is his case that the transaction of mortgage was oral one and that he succeeded in proving the same. The question, therefore, is whether the respondent/plaintiff is precluded from proving the transaction of mortgage by conditional sale through oral evidence and without there being a document? 6. To answer the first question, the ratio of the case of Gangabai, referred supra, is sufficient. The Supreme Court clearly allowed recording of parole evidence, in case the party wants to prove that the document executed was never intended to operate as sale, but that some other agreement altogether not recorded into document entered between parties. In this case also, though an out and out sale deed was recorded between the parties, the Courts below held that the respondent/plaintiff could prove through evidence that the transaction between the parties was altogether different one. It was a mortgage. And to prove it to be a mortgage oral evidence was allowed to be recorded. The learned counsel for the appellant then submitted that in view of peculiar definition of term “mortgage by ( 8 ) sa235.07 conditional sale”, a party cannot be allowed to lead parole evidence to prove that there occurred an oral agreement in respect of mortgage by conditional sale. But this argument is already rejected above. 7. The learned counsel for the appellant asserted that if this is a case where the respondent/plaintiff is trying to redeem an oral contract of mortgage, he said a transaction of mortgage cannot be oral and it must be in writing and registered, if necessary. However, this argument is not acceptable, because it is not that there is no document at all between the parties. There admittedly is a document and the Courts below held that this document is not recording the transaction of sale. As said above, the document does not contain anything to indicate that this was a mortgage. Therefore, by no stretch of imagination, it would satisfy the ingredients of Section 58 (c). So, the respondent/plaintiff is not precluded from proving the transaction of mortgage by conditional sale through oral evidence, and if he had proved it without there being a document, still the Court is permitted to grant the decree of redemption. 8. The learned counsel for the appellant tried to suggest that the main finding of fact that the intention of the parties before executing the sale-deed was to create a mortgage by conditional sale, is erroneous because important evidence is not taken into account. In ( 9 ) sa235.07 other words, he is suggesting that the finding is perverse. I am afraid, this argument is not acceptable, because the learned counsel could not lay his hand on any evidence which was not considered by the Courts below. The appeal should therefore fail. The Second Appeal stands dismissed. 9. The learned Advocate appearing for the respondent/plaintiff brings to my notice that his client has filed cross-objection against the finding that his client is not allowed to take possession of the suit property because the appellant/defendant was admittedly a tenant when the suit transaction had taken place. If the transaction is held to be a mortgage and if the mortgage is redeemed, it is settled law that the morgagee would revert back to his status as tenant and would continue possession as tenant. If at all the respondent/plaintiff wants to evict him, he will have to take recourse to appropriate legal proceedings. In view of this, the cross-objection does not succeed. Cross-objection too stands dismissed. [A.V. NIRGUDE, J.] snk/2011/AUG11/sa235.07ok