1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 254 OF 1991 1. Krishnabai W/o Rangnath Shinde } Since deceased through her L.Rs. } 1-a. Limbaji S/o Rangnath Shinde } Age : 51 Yrs., Occ. Service & Agri. } R/o : Mankeshwar, Tq. Paranda, } Dist.: Osmanabad. } 2. Kishorkumar S/o Limbaji Shinde } Age : 9 Yrs., Minor, U/g of } Limbaji S/o Rangnath Shinde } Age : 51 Yrs., Occ. Service & Agri. } R/o : Mankeshwar, Tq. Paranda, } ..... APPELLANTS/ Dist.: Osmanabad. } (ORI. PLAINTIFFS) V E R S U S Pandurang Rama Andhare } Age : 27 Yrs., Occ. Agriculture, } R/o : Mankeshwar, Tq. Paranda, } ..... RESPONDENT/ Dist.: Osmanabad. } (ORI. DEFENDANT) 2 Shri. V.R. Sonwalkar, Advocate for Appellant. Shri. S.Y. Mahajan, Advocate for Respondent. [ CORAM : K.U.CHANDIWAL, J.] DATE : 8 th JULY, 2009 ORAL JUDGMENT : 1. The original plaintiff, dis-satisfied with the concurrent findings recorded, is in Second Appeal. The Appeal is admitted on 15/11/1991 on the following substantial question of law, “ There involves substantial question of law relating to the interpretation of the document Exh. 66. ” 2. Elaborate submissions were advanced. With the assistance of the respective counsel, original record was perused and more particularly the disputed document Exh. 66 dated 14/8/1975, the sale deed at Exh. 59 and an agreement at Exh. 64 of the same date. 3. The conveyance Exh. 59 dated 14/8/1975 is said by the plaintiff to be not a document of absolute sale. According to the plaintiff, it 3 was a loan transaction evinced by virtue of Exh. 66 executed by the purchaser Pandurang on the very date by separate indenture. 4. On perusing record, I found that the very property which Pandurang has purchased by virtue of Exh. 59, was owned by his father Ramchandra Andhare, who has , in past, executed sale deed in favour of Smt. Krishnabai Shinde, the plaintiff. It was contention of Pandurang that indeed the earlier transaction by his father executing sale deed in favour of Krishnabai was a colourable document, effected with sole intention subsequently redeeming the transaction and the sale deed Exh. 59 is the result. 5. In order to substantiate the truthfulness of document Exh. 66, apart from the evidence of plaintiff, scribe Gulab Maniyar was examined below Exh. 65. He has deposed in favour of plaintiff about execution of document canvassing that Pandurang has signed the agreement in his presence. The defendant Pandurang disputed that he has signed this agreement Exh. 66. He has challenged the genuineness of the signature appearing thereon though he accepted that the stamp was purchased by him, it was lost. The Courts had the occasion to verify signature appearing on the first page of the stamp and at obverse at Exh. 66 and there is 4 positive finding that the signatures of Pandurang are not matching to each other. The Courts have rightly recorded , when the defendant Pandurang was with a specific assertion of not signing Exh. 66, nobody prevented the plaintiff to refer the document to be examined by the Experts in the field with the admitted signatures. Such exercise having been not followed, the resultant is, the plaintiff is looser and for that nobody should be blamed. 6. R.C.S. No. 17 of 1975 was filed by one Dattatraya against Ramu (father of defendant) and Krishnabai (present plaintiff) in respect of very property, seeking specific performance of contract. The said Suit was registered on 27/3/1975 and decided on 31/10/1980. In the Written Statement of Krishnabai, she did not advert to the existence of document Exh. 66 in her favour. It was open for her to have indicated that her transaction with Ramu Madhav or Pandurang has further been culminated into a sale deed dated 14/8/1975 or further agreement of reconveyance vide Exh. 66. The fact remains, the document Exh. 66, to which reliance is placed by the plaintiff for seeking reconveyance and thereby soliciting specific performance thereof, has not seen light of the day in past proceedings. There is obviously no explanation from the plaintiff for this omission. 5 7. The other controversy in the matter is, that the plaintiff issued a notice to the defendant on 2/1/1980 (Exh. 49). The same was replied by the defendant by his reply dated 8/1/1980 (Exh. 52). There is no reason to construe that as on 2/1/1980, Krishnabai, the plaintiff was unaware of the agreement Exh. 66. No reasons are assigned as to why she did not disclose the fact of execution of such agreement of reconveyance or an agreement to sale the property though she was equipped with the same. Since there was a reply from the defendant dated 8/1/1980 (Exh. 52), who had in unequivocal terms informed the plaintiff that his transaction by virtue of Exh. 59 was absolute sale deed and there is no reason for seeking reconveyance. That apart, the parties had series of litigation before the revenue authorities. There is no whisper at any place about existence of Exh. 66. A mutation effected by plaintiff in relation to the disputed property in the year 1978, certified by the revenue authorities, will not be adversely affecting the already existing right of the purchaser Pandurang by virtue of sale deed Exh. 59. 8. The interpretation of Exh. 59, if taken into consideration from the angle of Section 58 (C) of Transfer of Property Act, again defuse the contention of the plaintiff. The requirement of Section 58 (C) is as under, 6 “ 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 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. ] Thus, the proviso puts a knail in the operation of the plaintiff’s contention of the mortgage by the conditional sale. 9. This is more so, there is no evidence placed by plaintiff to establish to read document Exh. 59, otherwise than the terms referred therein. Though, under the law, such exercise was available to the plaintiff. There is nothing to indicate that the document Exh. 59 was not in the letter and spirit, in which it was so incorporated. Taking the survey of the facts, the findings recorded by both the Courts that agreement Exh. 66 7 is not a genuine document, does not require any interference. The Second Appeal is devoid of merits. It is dismissed. [ K.U.CHANDIWAL ] JUDGE knp/SA254.91 8 9 10 11 12 13 14 15 16