1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1230 OF 2009 1) Sampat s/o Kashinath Shinde Age: 72 Yrs., occu. Agril. R/o Suregaon (Gangapur) Tq. Newasa, Dist. Ahmednagar. 2) Balasaheb s/o Dadasaheb Sawai, Age: 19 yrs., occu. Agril. r/o Suregaon (Gangapur) Tq. Newasa, Dist. Ahmednagar. - APPELLANTS VERSUS Smt. Bhagirathibai Babaibai Dagadu Gaikwad, Age: 67 Yrs. occu. Household, r/o Suregaon (Gangapur) Tq. Newasa, Dist.Ahmednagar. - RESPONDENT ***** Mr.VD Sapkal, Advocate for Appellants; Mr.RL Kute, Advocate h/for Mr. KB Autade, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 22nd February, 2010. JUDGMENT: 1) Heard finally at admission stage pursuant to order dated 19.11.2009. 2 2) Admit. Learned Counsel for respondent waives service. 3) The judgment and decree in Special Civil Suit No.53/2007 dated 24th February, 2009, is assailed by the defendants. The parties are referred by their original status as plaintiff and defendants. 4) The suit property land Survey No. 27/3B, admeasuring 81 R. situated at village Suregaon (Gangapur), Tq. Newasa, District Ahmednagar, was a property of Dagadu Deoram Gaikwad, who expired on 6.4.1976. The plaintiff says she is the only surviving legal representative of deceased Dagadu, being his wife/widow. On 14.7.1975, by accepting Rs.1500/- the suit property was mortgaged and given in possession of defendant no.1 – Sampat Kashinath Shinde. However, in spite of such transaction to be of mortgage, defendant no.1 on 29.6.2006, sold the property for an amount of Rs.2,25,000/- to the defendant 3 no.2 – Balasaheb Dadasaheb Savai. The plaintiff was and is always ready to remit Rs.1500/- the mortgaged amount, to the defendant no.1, however, he did not accept the same. Consequently, by notice dated 30th October, 2007, the plaintiff urged to redeem the mortgaged property, it was not complied with. The cause of action to the suit arose on 29.6.2006 when the defendant no.1, without any right and authority, illegally executed the sale-deed to defendant no.2. It further arose on 30th October, 2007 when the plaintiff, through advocate, sought redemption. Ultimately, the plaintiff sought redemption and possession of the suit property with declaration that the sale-deed dated 29.6.2006 is not binding on her. 5) The defendants, by their joint written statement before the learned Judge, did not dispute the suit property and transaction dated 14.7.1975, however, claimed that plaintiff is not a legally wedded wife of Dagadu. The transaction 4 between Dagadu and defendant no.1 was not a mortgage. The suit itself is barred by limitation. The plaintiff was never residing at Suregaon as she is resident of Mulwadgaon, Tq. Shrirampur. Dagadu Deoram was not keeping well, he had debts to discharge. It is not a deed of mortgage, but a sale-deed in absolute and out and out, even if it refers to condition to re- purchase, since deceased Dagadu did not re- purchase it, consequently, defendant no.1 has become owner of the property, his possession is legal. 6) On the rival pleadings, the learned Judge framed the Issues below exhibit-13, as under : ISSUES FINDINGS 1) Does plaintiff prove that she is legally wedded wife of deceased Dagadu Gaikwad ? In the affirmative. 2) Does plaintiff prove that deceased Dagadu had mortgaged the suit property in favour 5 of defendant no.1 ? In the affirmative. 3) Whether suit is within limitation ? In the affirmative. 4) Does plaintiff prove that she has paid sufficient Court fees stamp ? In the affirmative. 5) Does plaintiff prove that, she is entitled for redemption of the mortgage? In the affirmative 6) Does plaintiff prove that sale-deed executed by defendant no.1 in favour of defendant no.2 is not binding on her In the affirmative. 7) What order or decree ? As per final order. 7) In order to establish or rebut the evidence before the learned Judge, evidence of plaintiff, her witness PW-2 – Kishor Ganpat Wagh; PW-3 Gulab Gangadhar Gosavi were put in. The defendant – Sampat Kashinath Shinde filed his affidavit in chief. He was cross-examined. He examined Asaram Balkrishna Aadik (DW-2) residing at Khanapur. DW-3 is Bhausaheb Pandharinath 6 Mhaske; DW 4 is Nanasaheb Bhimraj Zumbar, Gramsevak of Suregaon (Gangapur) Tq. Newasa. He has produced Death Certificate of Bhagirathibai Dagadu Gaikwad, (wife of Dagadu) who expired on 25.12.1966, entry of which was recorded on 24.12.2008. The mutation in respect of immoveable property in the name of Bhagirathibai was carried by the Gram Panchayat by resolution dt. 20.11.1981. 8) On analyzing the evidence, coupled with the documents as stated earlier, the learned Judge decreed the suit and the aggrieved defendants are in the appeal. 9) Mr. Sapkal, learned Counsel, in continuation of what is narrated herein above, raised in the defence, has bluntly attacked to status of plaintiff to be a legally wedded wife of Dagadu to stake claim to the property. In order to stress his point, he took recourse to the Judgments in the matter of Joyita Saha Vs. Rajesh Kumar Pandey ( AIR 2000 Calcutta 109) and also to Bhaurao Shankar Lokande and Anr. Vs. The 7 State of Maharashtra and Anr. ( AIR 1965 SC 1564). 10) Both the Counsel extensively read the evidence and interpreted the documents. Mr.Sapkal also placed reliance to the Judgment in the matter of Tamboli Ramnlal Motilal (dead) by L.Rs. Vs. Ghanchi Chimanlal Keshavlal (dead) by L.Rs. and Anr. ( AIR 1992 SC 1236) and to the Judgment of this Court in the matter of Vamanrao Sawalaram Bhosale and Ors. Vs. Vithal Tukaram Kadam ( 2006 (1) Bom.C.R. 448). These two judgments deal with interpretation of Section 58 and Section 41 of Transfer of Property Act, 1882. The Apex Court held, the attendant circumstances could be looked into only to gather the intention. Such an intention, if explicitly expressed in the document itself, there is no scope for looking at the attendant circumstances. If, therefore, there is no relationship of debtor and the creditor, the question of it being a mortgage by conditional sale does not arise. 8 11) Reliance was also placed to the judgment in the matter of Vishwanath Dadoba Karale Vs. Parisa Shantappa Upadhye (deceased by L.Rs.) - ( AIR 2008 SC 2510), to paragraph 11 (15) which read as under : “15. A distinction exists between a mortgage by way of conditional sale and a sale with condition of purchase. In the former the debt subsists and a right to redeem remains with the debtor but in case of the latter the transaction does not evidence an arrangement of lending and borrowing and, thus, right to redeem is not reserved thereby.” 12) Mr.Sapkal claims, the document could not be a conditional sale as defendant No.1 – Sampat paid Rs.500/- to Dagadu earlier and Rs.1,000/- at the time of execution of the sale-deed dated 14.7.1975. The reference to get the transaction redeemed after five years and if it is so done, 9 to treat the same as a sale-deed to enjoy the property as an absolute owner, showed the document as an absolute sale. 13) Section 58 of the Transfer of Property Act conceive about “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage- deed”. Section 58(c) is as under : “(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 the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the 10 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.” 14) The judgment in the matter of Joyita Saha and Bhaurao Shankar Lokhande (cited supra) need not be referred in detail as the death of Bhagirathibai, earlier wife of Dagadu, has been proved. The plaintiff has established from her evidence and P.W.3, that she had married with Dagadu. Curiously enough, the defendants produced Birth Certificate of two children by a list. This proves (Exhibits-68 and 69) that Babaibai Dagadu Deoram gave birth to a female child on 7.8.1971 and a male child on 9.9.1974. Births are respectively registered at Serial Nos. 17 and 16 in the extract of Registration of Births and Deaths prepared by the Gram Panchayat of the concerned village. The certificates are issued by 11 the Block Development Officer and Registrar under the Birth and Death Act, Shrirampur. Thus, the contention that plaintiff could not be wife of Dagadu has indeed been negatived by producing Birth Certificate of two children having born from Dagadu Deorao Gaikwad. It is nobody’s case that there was any other person than Dagadu Deorao Gaikwad from whom, Babai, the plaintiff, had given birth to the two children. There was no pleading from the plaintiff about the birth of the children referred above. However, it was the defendants who had the audacity to produce the same, which had indeed eased the plaintiff’s case. There could not be an event expected by the plaintiff to suspect that her status as a widow of Dagadu could be at stake by the defendants and consequently, there was no reason for her to refer about the birth of two children begotten from Dagadu in the pleadings. Any variation, quoting the events in sequence will not dilute evidence of plaintiff, considering the fact, she is an illiterate lady and hence 12 meticulously could not project the various dates which were asked to her in cross-examination. She has independently established that plaintiff got married to Dagadu in the year 1967, it is precisely after death of Bhagirathibai on 25.12.1966 (first wife of Dagadu). Plaintiff was identified after 25.12.1966 to be Bhagirathibai, by revenue authorities,which is evident from the notices, Exhibits-36 and 37, issued by the Land Acquisition Officer in the year 1990. 15) The property tax extract at Exhibit-38 also establish, after death of Dagadu, name of Bharirathibai is recorded on the basis of Resolution of Gram Panchayat dated 28.11.1981. These details stamp status of the plaintiff to be widow of Dagadu. Even if plaintiff had earlier married to one Laxman Pandharinath Mhaske, as stated by DW-3, said Laxman expired after one year of his marriage held in 1964-65. Consequently, he was not alive in the year 1967. The oral evidence, as stated above, shows 13 Bhagirathibai (plaintiff and Dagadu) married in the year 1967. The solemnization of marriage or proving `Saptapadi’ was not warranted in the present proceedings. It will not change merits of status of plaintiff, as wife of Dagdu. 16) The recitals in the document at Exhibit-30 (sale-deed) needs its true relevance. The document read as a whole unequivocally indicate that it was a mortgage by conditional sale and it could not be branded to be an absolute sale. As stated earlier, the nature of transaction is to be read in context with the document and surrounding circumstances, including intention of the parties; existence of relations as creditor or debtor or if the words in the document project fidelity to brand it as an absolute sale. 17) The transaction, vide Exhibit-30, could not be an absolute sale, as it refers, re- purchase and redeem after five years. The term 14 ”_____________” in marathi, necessarily imply, redemption and not absolute transfer. Having regard to the terms of the transaction, even if the document is referred as sale, imbibed with a right to redeem the same, though possession was given, it will not provide any abridgment and a mitigating feature, to the rights of the mortgagor. Since the document itself provides condition for redemption after five years, embodied in so many words, which is in keeping with, intention of Dagdu, no other inference can be drawn. 18) In the matter of Manjabai Krishna Vs. Raghunath Revaji Patil & Anr. (2007 (3) SCALE 331), the Apex Court held : “12. Proviso appended to Section 58(c) is clear and unambiguous. A legal fiction is created thereby that the transaction shall not be held to be a mortgage by conditional sale, unless a condition is embodied in the document which effects or purports to effect the sale. Where 15 two documents are executed, the transaction in question would not amount to a mortgage by way of conditional sale. In a case of this nature, ordinarily the same would be considered to be a deed of sale coupled with an agreement of reconveyance. In the facts of that case, however, it was held that no relationship of debtor and creditor came in existence and no security was created and in fact conveyance of the title of the property by the respondent to the appellant was final and absolute.” 19) Mr.Sapkal contended, provisions of Order 37 Rule 7 are not complied with by the learned Judge. However, I find there was an application below Exhibit-23 by the plaintiff and pursuant to the order dated 12.8.2008, the plaintiff has deposited an amount of Rs.1500/- in the Court. There is no ambiguity in this respect. 16 20) On the point of limitation, it is clear the transaction stipulate re-purchase (redeem) any time after five years of 1975. Issuance of notice to redeem, is dated 30th October, 2007 gives cause of action to the plaintiff. In this situation, the suit is perfectly within limitation. 21) The learned Judge analyzed the evidence and legal position in proper direction, and justifiably decreed the suit. No illegality is surfaced. Consequently, no interference. The First Appeal dismissed. No costs. CA No.5471/2009 dismissed. 22) Heard. Mr.Patil holding for Mr.Sapkal prays for stay of the judgment. Operation of this judgment is stayed up to 7th May, 2010. sd/- (K.U.CHANDIWAL) JUDGE bdv/fa1230.09 fldr.10.02.09