1 S.A.NO.475/89. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.475 OF 1989. Shivnarayan Mohanlal Jaiswal L.R.'s 1.Shakuntala Shivnarayan Jaiswal, Age: 52 years, Occ: Household, R/o: Mohan Building, Rangargalli Aurangabad. 2.Ashok Shivnarayan Jaiswal, Age:24 years, Occ: Business, R/o: As above. 3.Dilip Shivnarayan Jaiswal, Age: 32 years, Occ: Bisiness, R/o: As above. 4.Pradeep Shivnarayan Jaiswal, Age: 28 years, Occ: & R/o As above. 5.Santosh Shivnarayan Jaiswal, Age: 25 years, Occ: & r/o As above. 6.Manoj Shivnarayan Jaiswal, Age: 21 years, r/o As above. 7.Sou.Mina Uday Jaiswal, Age: 27 years, Occ: Household, r/o: Bhokar, Tq.Shrirampur, Dist.Ahmednagar. ...Appellants. (Heirs of Ori.plaintiffs). 2 S.A.NO.475/89. VERSUS Mulla Ahmad Ali s/o Abdul Hussain, Age: 65 years, Occ: Business, R/o: Sultanpura, Chowk, Aurangabad, (deceased), per Legal Representatives:- 1. Smt.Salam Wd/o Ahmadali, Age: Major, Occ: House-Affairs, r/o: Aurangabad. 2. Meherbani d/o Ahmedali, Age: Major, 3. Mohammed Hussain S/o Ahmadali, Age: Major, 4. Kanizbanu w/o Abdullabhai, Age: Major, All resident of Sultanpura, Chowk, Aurangabad. 5. Kumar Fatema w/o Hussainibhai, Age: Major, R/o: Manmad, Dist.Nasik. ...Respondents. (Heirs of Ori.Defendants) ... Mr.S.V.Gangapurwala,Advocate, for the applicants. Mr.A.S.Golegaonkar,Advocate, for the respondents. ... 3 S.A.NO.475/89. CORAM: A.V.NIRGUDE,J. Date : 14th August, 2009. ORAL JUDGMENT: 1. This Second Appeal arose from the judgment dated 30th March, 1989 passed by the learned IInd Addl.District Judge, Aurangabad in Regular Civil Appeal No.61/1985. 2. The present appellant was the appellant before the First Appellate Court. The appellant had filed the suit for recovery of rent amounting to Rs.230.40 in respect of the suit house situated at Chelipura, Aurangabad. 3. The cause of action for the suit was as under: . The appellant said that he was owner of the suit house and the original defendant Mulla Ahmed Ali, the predecessor of the present respondents, was his tenant. The appellant further stated that original defendant Mulla Ahmed Ali had sold the suit house to the appellant's father Mohanlal vide a registered sale deed dated 03.09.1955 (Exh.91). He also placed reliance on rent receipt Exh.85/1, dated 4th September, 1955, whereby Mulla Ahmed Ali agreed to pay Rs.7.50 O.S. i.e. Rs.6.40 per month as rent. The appellant stated that since 1961 the original defendant Mulla 4 S.A.NO.475/89. Ahmed Ali stopped paying him rent and so rather belatedly he filed the suit for recovery of arrears of rent for last three years from the date of the suit. 4. The original defendant Mulla Ahmad Ali filed the written statement and took up a stand that when he sold the suit house to the father of the plaintiff, it was not an outright sale. He said, it was a mortgage. He said, he had taken loan of Rs.1000/- from the plaintiff's father and since the plaintiff's father insisted, he had executed the sale deed as security for the loan. He also stated that on the very next day on 4th September, 1955, the plaintiff's father executed an agreement in his favour saying that he would reconvey the property in case he had received Rs. 1000/- (Rs. One Thousand only) within five years. He then, stated that pursuant to such agreement on 6th August, 1959, he paid Rs.1000/- to the plaintiff's father and got the suit house redeemed. He, therefore, said that the plaintiff or his father had no concern with the suit house. 5. The question before the trial Court was, whether the transaction between the parties was mortgage by conditional sale or a sale with condition to reconvey ? 5 S.A.NO.475/89. 6. Both the Courts below held in favour of the defendant Mulla Ahmad Ali. 7. Let me now examine the same question once again. On the face and going by the case of the respondent the transaction was sale with condition to repurchase. But still the respondent could not prove that his father repurchased it. Let me elaborate it further. 8. The appellant did not deny the execution of the agreement dated 4th September, 1955 (Exh.88) by which the appellant's father had agreed to reconvey the property. (But the plaintiff did not admit the receipt dated 6th of August, 1959 (Exh. 87) by which it was sought to be shown that the plaintiff's father had received Rs.1000/- and the property was sought to be redeemed.) There was one more circumstance in favour of the respondent and that is mentioned in the judgment of the lower appellate Court. It was the case of the original defendant Mulla Ahmad Ali that after he repaid Rs.1000/- to the plaintiff's father in 1959, he got an endorsement made on the original sale deed which till then was with the plaintiff's father. He said, after the endorsement, he took back the original sale deed. The receipt document Exh.87 dated 6th August, 1959 is not a strong piece of evidence for though the plaintiff's father had signed it and though 6 S.A.NO.475/89. he has acknowledged receipt of Rs.1000/- from the original defendant Mulla Ahmad Ali, there is no reference to the original sale deed dated 3rd of September, 1955 in this receipt. This receipt thus is not capable of getting connected to the sale deed dated 3rd of September, 1955. The receipt even does not mention the house number and description of the suit house. 9. For the sake of argument, I would assume that this receipt was in respect of the agreement between the parties dated 4th of September, 1955 whereby the appellant's father agreed to reconvey the property. I would also accept the case of the respondents that the original defendant Mulla Ahmad Ali paid Rs.1000/- to the plaintiff's father, got the original sale deed back with endorsement etc. but still, it can not be said that these acts would amount to reconveyance of the property in favour of the original defendant Mulla Ahmad Ali. If we accept the case of the respondents on the nature of the transaction, it would still be a case of a transaction of sale with a condition to repurchase. It does not amount to a transaction of mortgage. Besides, the transaction does not fall within the parameters of the definition of the term, "mortgage by conditional sale" (Section 56(c) of the Transfer of Property Act.). 7 S.A.NO.475/89. 10. I need not elaborate on the question, as to whether the appellant or his father lost his title when the appellant's father received Rs. 1000/- from the original defendant in 1959. As said above, the reconveyance was not a registered document. The receipt dated 6th of August, 1959, admittedly, is not a registered document. I have already said above, that this receipt is also a defective document in as much as it does not mention the description of the property to which it relates. Besides, assuming that the original sale deed was returned with an endorsement, the endorsement is not registered when it was made in 1959. In absence of the registration of the reconveyance, the appellant or his father could not have lost title to the suit property. 11. The next question would be whether in the facts and circumstances of the case, the appellant could prove the relationship of land- lord and tenant? 12. In order to prove this, there is a rent receipt Exh.85/1 on record. Though it is not properly proved since I have unhesitatingly admitted all other documents on record, I would read this document also to decide the case. In this document Exh.85/1 there is a clear mention that the original defendant Mulla Ahmad Ali agreed to pay rent of Rs.6.40 ps (I.S.),R.7.50 8 S.A.NO.475/89. (O.S.) as rent per month to the appellant's father. Even in the receipt Exh.87, there is a clear mention of rent receipt etc. being returned to the original defendant. In any case, if I hold that this was a transaction of sale with condition to repurchase, and if the original defendant continued to occupy the suit house as his residence, he could have used it only as a tenant of the purchaser. In view of these findings, the appeal should succeed. Accordingly, the appeal is allowed. 13. The impugned Judgments & orders of both the lower Courts stands set aside. 14. Regular Civil Suit 276/1983 of the appellant/plaintiff stands decreed as prayed for. (A.V.NIRGUDE,J.) lkp