1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.251 OF 1989 Shankar Ambaji Dangat (died, through legal representatives: 1-A. Abasaheb Shankarrao Dangat age 65 years, occup. Labour, r/of Thenge-Wadgaon, Taluka Mantha, District : Jalna. At present at Warkhed, Tq. Pathri, District Parbhani. 1-B. Babasaheb Shankarrao Dangat age 60 years, occup. Agril. r/of Thenge Wadgaon, Taluka Mantha, District Jalna, at present r/of as above. 1-C. Madan Shankarrao Dangat, age 57 years, occup. agril. r/of Thenge Wadgaon, Taluka Mantha, District : Jalna, at Dehengaon, Taluka Ahbad (Ambad), District Jalna. 1-D. Sou. Sulabai Madhavrao Dakh, age 63 years, occup.household r/o Dhamangao, Taluka Sailu, District Parbhani. 2 1-E. Sau. Shantabai Dagdoba Giram, @ Dagadoba Giram, age 43 yrs. occupation household, r/of Gopegaon, Taluka Pathri, District Parbhani. 1-F. Samitrabai Vasantrao Kolhe, Appellants/ age 40 years, occup. Agril. 1-A to 1-F r/of Pathargavan, Taluka are L.Rs.of Pathri, District Parbhani ori.appellant/ plaintiff. versus Taj Mohammad s/o Abdul Kader age major, occup. business, Respondent/ r/of Mantha, Taluka Partur, original District Jalna. defendant. ------------------------------------------------------ Smt. Asha S. Rasal, Advocate, for the appellant. Shri Y. M. Khan, Advocate, for the respondent. ------------------------------------------------------ Coram : P.R. Borkar, J. Date : April 08, 2010 ORAL JUDGMENT 01. This is a second appeal preferred by original plaintiff whose suit bearing R.C.S. No.3 of 1979 for declaration that the sale deed dated 10.12.1968 executed by him in favour of the defendant 3 was nominal and was not to be acted upon and for possession was decreed by the learned Civil Judge, Junior Division, Partur, on 23.9.1981 which judgment and decree is reversed by the learned II Additional District Judge, Jalna, in Regular Civil Appeal No.317 of 1981 decided on 30.9.1988 and the suit was dismissed. 02. Briefly, the facts are that the appellant- plaintiff Shankarrao filed R.C.S. No.3 of 1979 in Civil Court, Partur, contending that in 1968 there was famine. Respondent-defendant Taj Mohammad was a money lender. Plaintiff-appellant was in need of money and, therefore, he demanded Rs.7000/= to Respondent. The Respondent, however, insisted on execution of the land. It was agreed that the plaintiff would execute a nominal sale deed and would put the Respondent- defendant in possession of the land survey No.36 admeasuring 10 acres 3 gunthas land situated at village Thenge Wadgaon Taluka Partur and after five years the plaintiff would repay the amount of Rs. 7000/= and Respondent-defendant would execute a registered re-conveyance deed. Accordingly, on 10.12.1968, plaintiff-appellant executed registered sale deed in favour of the Respondent. Possession was 4 also delivered to the respondent on that day itself. A separate agreement was executed whereby Respondent- defendant agreed to re-convey the property in favour of the appellant-plaintiff in case of repayment of Rs. 7,000/= within 5 years. It is further stated that in the year 1977 Respondent-defendant started sinking well in the land to which appellant-plaintiff objected. However, respondent said that he was sinking well at his own expenses and he would not claim those expenses from the plaintiff and that he would abide by the agreement. Thereafter, after the completion of five years period, appellant-plaintiff tendered the amount of Rs.7,000/= to the respondent-defendant, but that was not accepted and ultimately on 5.12.1978 Respondent-defendant refused to execute re-conveyance deed and hand over possession to the appellant- plaintiff. In the circumstances, appellant filed suit against respondent for possession of land also for declaration that the sale deed was ineffective on the rights of the appellant-plaintiff. It may be made clear here itself that there is no prayer for specific performance of the agreement of reconveyance nor there is a prayer which is made in a suit for redemption of mortgage. 5 03. The respondent-defendant filed written statement at Exhibit 11. He denied that the sale deed was nominal and that it was not to be acted upon. According to the respondent, the sale-deed was out and out sale and not a single word is mentioned in the sale-deed reserving any right of the plaintiff, much less right of re-conveyance and, therefore, the appellant-plaintiff is not entitled to re-conveyance. It is further stated that the defendant has sunk well in the land. He made heavy expenses on improvements of the land. Respondent-defendant, therefore, prayed that suit be dismissed. 04. The trial court came to the conclusion that the sale deed dated 10.12.1968 was nominal sale deed and was not to be acted upon and the plaintiff was held to be entitled to declaration and possession as sought for. While answering issue No.6, it is held by the trial court that the appellant-plaintiff was ready to perform his part of the agreement dated 10.12.1968. While answering issue No.7, it was held that the respondent-defendant was bonafide purchaser and in answer to issue No.8, it is held that respondent-defendant proved that the appellant- plaintiff had executed sale deed in his favour on 6 10.12.1968. The trial court also held that there was agreement of re-conveyance executed on the same day. 05. The first appellate court, however, held that the sale was out and out sale and the appellant- plaintiff was not entitled to claim re-conveyance as the suit was not filed within limitation. 06. This second appeal is admitted on 23.11.1989 and the substantial questions of law stated in ground Nos. 4 to 9 and 10 to 14 which are condensed by order dated 30.3.2010 as follows: (1) Whether the transaction between the parties can be termed as "Sale with agreement for re-conveyance " or is it a Mortgage with conditional Sale? (2) Whether the appellant-plaintiff was ready and willing to perform his part of the contract of re-conveyance ? (3) Whether the suit is within limitation? (4) Whether the appellant-plaintiff is entitled to decree of reconveyance ? 7 07. In this case, the appellant-plaintiff has examined himself at Exhibit 30. He stated in paragraph 2 of his deposition that he had executed sale deed (Exh.35) in favour of the respondent- defendant and defendant executed Kararnama (Exh.32) in his favour for reconveyance of the property. Both the documents are executed on the same day. Plaintiff stated that Defendant signed agreement (Exh.32) in his presence. In earlier paragraph i.e. para 1, plaintiff deposed that he was in need of Rs.7000/= and, therefore, he took loan of Rs.7000/= from the defendant. Respondent-defendant asked plaintiff to execute sale deed as security in his favour. Plaintiff agreed to the same since he was in need of money. It was further agreed that after five years are over, the amount of Rs.7000/= would be repaid to the defendant-respondent who, in turn, would hand over possession of the property back to the appellant- plaintiff. The plaintiff has also stated that after five years, he went to respondent-defendant and offered him amount of Rs.7000/=. However, the respondent-defendant refused to accept the amount and deliver possession of the land to the plaintiff. 8 08. PW-2 Mohammed Abdul Karim examined at Exhibit 31 is the scribe of the sale deed, so also agreement. He stated that he wrote agreement (Exh.32) as per the say of respondent-defendant and that attesting witnesses, so also defendant, signed the same in his presence. 09. Respondent-defendant Taj Mohammd examined at Exhibit 34 proved sale deed Exhibit 35 and also admitted that he had signed on the agreement (Exhibit 32). It is no doubt true that earlier he had stated that at that time no agreement was written, but it is clear that agreement is of the same date. He also admitted that in 1977 he dug a well in the land. He admitted the stamp paper on which agreement (Exh.32) was written bears his signature, but according to him, it is written as per the say of the plaintiff. 10. DW-2 Damodhar Barsale examined at Exh.36, is the attesting witness who proved his signature on the sale deed and also proved execution thereof by the appellant-plaintiff. He stated that Rs.7000/= were by respondent-defendant to the plaintiff and on next date the sale deed was executed. He is near relative of 9 the plaintiff. According to PW-2, there was also agreement for reconveyance of property. PW-2 Damodhar proved Kararnama (Exh.32) and identified his own signature and that of the respondent on Kararnama. This witness has in examination-in-chief stated that it was decided between the parties that the defendant would give Rs.7000/= to the plaintiff and plaintiff would give his land to defendant for cultivation for a period of five years. Relying on this, it is argued that the witness of defendant has proved that it was a nominal sale. However, it is worth noting that he has examined as an attesting witness on the sale deed and is relative of the plaintiff. 11. In this case, perusal of sale deed Exh.35 and agreement Exh.32 shows those were written by the same scribe on the same day on separate stamp papers. The sale deed was registered on the same day. In the agreement for sale, it is stated that on that day on receiving Rs.7000/= plaintiff-appellant had executed a registered sale deed and possession was also handed over to defendant. It was agreed that within five years from the date of execution of sale-deed i.e. on or before 9.12.1973, if plaintiff repaid the amount of Rs.7000/= to the defendant, the plaintiff would be 10 entitled to get registered re-conveyance in his favour and defendant would not dispute the same. However, expenses of registration were to be incurred by the appellant-plaintiff. This document is signed by the defendant in favour of the plaintiff on a stamp paper purchased by the defendant-respondent. 12. Smt. Rasal, learned counsel for the appellant argued that the sale was nominal in nature and was not to be acted upon. She relied upon the case of Shalinibai vs. Narayan 2006 (6) Mh.L.J. 753. However, the facts of that case were peculiar which can be gathered from paragraph 3 of judgment in that case. It is clear that in spite of execution of sale deeds since 1949 and even after execution of sale deed dated 27.8.1952, the possession of the said property continued with the appellant. The appellant failed to repay the loan amount of Rs.10,000/= by 6.6.1953. The parties thereupon on mutual oral agreement delivered the possession of 12 acres 33 gunthas out of the total area of 25.46 acres to the respondent No.1, so that he could enjoy crops therefrom for 12 years and thereby appropriate the income towards the repayment of loan and on expiry of 12 years to redeliver the possession to the appellant. Since then the half of the suit 11 property was being retained by the respondent no.1 while remaining half was being enjoyed by the appellant. So, the facts of the case cited were peculiar. The conduct of the parties therein and more particularly delivery of 12 acres 33 gunthas of land to respondent No.1 with particular agreement and understanding clearly proved that the sale deeds in the said case were not to be acted upon as those were nominal and the main transaction was of money lending or loan. There was finding of fact to that effect as paragraph 15 indicates. 13. In the present case, the conduct of the parties, as appearing from Exhibits 32 and 35, is more eloquent. Parties may lie, but the documents do not. In this case when the documents were executed on 10.12.1968, parties had no dispute. The agreement (Exh.32) clearly shows that the parties intended that there should be sale deed executed by plaintiff in favour of the defendant and that it should be registered. Parties also desired that the amount should be repaid on or before 9.12.1973. The words are very clear and there is no scope for ambiguity. If such amount is paid in time, then the plaintiff- appellant would be entitled to get registered re- 12 conveyance in his favour. So, this was a case of sale with agreement for re-conveyance and not of nominal sale. Possession of the land was handed over to the purchaser on the date of execution of the sale deed and there is no dispute regarding the same. Therefore, in my considered opinion, case of Shalinibai (supra) is not applicable to the facts of the present case. 15. In this case the District Court has taken a view that in view of provisions of Section 58(c) of the Transfer of Property Act, the transaction between the parties could not be said to be of a mortgage with conditional sale inasmuch as condition of re- conveyance was not embodied in the sale deed itself, but it was by way of separate document. So, the court has held that the limitation applicable in the present case is under Article 58 and, therefore, suit ought to have been filed within three years from 9.12.1977-the date by which the amount of Rs.7000/- was to be repaid. In this case, suit is filed on 5.1.1979. The suit filed was, therefore, obviously beyond the period of three years from 9.12.1973. 15. The parties have also referred to some more authorities. In Bishwanath Singh vs. Rajendra Prasad 13 AIR 2006 SC 2965(1), the question under consideration was whether the document was mortgage with conditional sale or sale with condition to reconvey. Respondent therein had executed sale deed in favour of the appellant who, in turn, on the same day executed an agreement for sale in favour of the respondent. The recital in sale deed categorically shows intention of Respondent to convey property to the appellant. Appellant's right to transfer property was not restricted. Property was also mutated in the name of the appellant. The agreement of sale by appellant was for limited period. It was held that the sale deed executed by respondent could not be said to be mortgage. Section 58(c) of the Transfer of Property Act requires that the mortgage by conditional sale must be evidenced by one document. 16. In the present case, limitation would be 3 years and not 12 years or 30 years. Exhibit 25, which is V.F. 7x12 extract for the period 1970-71 onwards shows that name of Respondent-defendant was mutated as owner. He was also shown to be actually cultivating the land. The mode of cultivation was "No.2" between 1970-71 to 1972-73, but from 1973-74 it was shown to be "No.1". Thus, the sale deed was also acted upon and 14 the property not only was given in possession of the Respondent, but his name was also mutated in the record of rights. 17. After giving anxious consideration to the submissions advanced on behalf of both the sides and after considering the reasons given by the first appellate court, I am in agreement with the view taken by the learned Additional District Judge. Accordingly, I hold that the transaction is not of nominal sale. The transaction between the parties was sale with agreement of repurchase and the suit is barred by limitation. 18. In the result, second appeal is dismissed. Parties to bear their own costs. pnd/SA251.89 (P.R.BORKAR, J.)