Case: ATUL CHANDRA DAS(D) TR.LRS Vs. RABINDRA NATH BHATTACHARYA(D)TR.LRS.&amp;ORS

2. The case set up by Atul Chandra Das is asa registered deed of conveyance dated 28.11.1959 (the parties shall be referred to as in the position in the trial Court), the defendants sold for consideration the plaint schedule property to one Bholanath Auddy (hereinafter referred to as ?Bholanath?). Simultaneously, Bholanath created tenancy in favour of the defendants at the monthly rent of Rs.50/-. It was agreed that the share of corporation tax shall be paid by the defendants. It was also agreed between Bholanath and defendants that the defendants were to vacate and deliver possession on the expiry of two years from 28.11.1959. Thereafter, an agreement for sale was entered into on 15.8.1960 between Bholanath and Atul Chandra Das. He agreed to sell plaint schedule property for Rs.9000/-. Since Bholanath failed to perform the obligation, O.S. No.171 of 1962 was filed by Atul Chandra Das for specific performance. On 30.11.1977 a decree was passed in favour of Atul Chandra Das. In terms of decree he deposited the balance consideration and finally a sale deed was executed in his favour. He claimed to be the landlord of the building and alleging that defendants have no right to occupy the premises, he sought recovery of possession by evicting the defendants. The defendants filed written statement. That apart they also filed the other suit namely Suit No.1271 of 1980. Therein the following averments were made interAnnapurna Devi (since deceased) was the owner for life of the property and on her death, her three sons namely Late Ashutosh Bhattacharya, Late Dulal Krishna Bhattacharya and Rabindra Nath Bhattacharya (hereinafter referred to as ‘Bhattacharyas and who are the defendants in the suit filed by Atul Chandra Das and plaintiffs in O.S. No. 1271/1980) were given absolute rights, in terms of the will executed by Bijoy Kr. Ghosal, the owner of the property. They set up the case that a sum of Rs.8000/- came to be borrowed from Bholanath on 28.9.1959. To secure Rs.8000/- Bhattacharyas mortgaged by conditional sale, on 28.11.1959 the plaint schedule property in favour of Bholanath. In order to give effect to mortgage an agreement for sale was entered into on 07.12.1959 with Aboya Devi (since deceased wife of Late Ashutosh Bhattacharya and deceased Late Karuna Bhattacharya, the wife of first plaintiff in a title suit and Late Smt. Rama Devi, daughter of Annapurna Devi) who were the nominees of the mortgagors for the agreement to sell of the house on payment of a sum of Rs. 10,000/- which was settled to be the mortgage money, no rate of interest having been stipulated. Two years was agreed to be the period of redemption of mortgage. The title deeds were to be kept with Bholanath by way of further security. The agreement which is referred to by Atul Chandra Das as an agreement for sale in his favour dated 15.8.1960 is described as a collusive and fraudulent agreement and it was entered into before the expiry of period of redemption. The plaint schedule property comprised of a three storied building standing upon an area of 1 cottah and 8 chittackas of land and the value at the relevant time would not have been less than Rs.30,000/-, the annual municipal value being Rs.1469/- declared at that point of time. Bholanath was a mere mortgagee in a mortgage by conditional sale. The specific performance suit was described as a collusive suit. Bhattacharyas claimed to be the owners being legatees under the will. The relief sought by the plaintiffs in O.S. No.1271 of 1980 is relevant. The relevant portion reads asFor the purpose of jurisdiction the suit is valued for declaration with consequential relief of perpetual injunction at Rs.51/- there being no objective standard of valuation and objectively for Rs.8500/- and Court fee stamp of Rs.4.15 is paid on the sum of Rs.51/- being the value for declaration with injunction and court fee stamp Rs.525.00 is paid on the sum of Rs.6500/- being balance of the principal due the total court fee paid being Rs.529.15p. The plaintiffs thereforeThat the suit be decreedDeclaration that the sale dated 28.11.59 for the consideration of Rs.8000/- of the property described in the schedule ?A? below by Sm. Annapurna Devi since deceased, Ashutosh Bhattacharyya, since deceased and the plaintiff nos.1 and 2 to Bhola Nath Duddya, since deceased followed by the condition of re-transfer as per agreement for sale dt. 7.12.59 by Bholanath Auddya since deceased in favour of Sm. Abhoya Devi, since deceased Sm. Karuna and Sm. Rama Devi since deceased, on payment of Rs.10,000/- within 2 years was on ostensible sale amounting to a mortgage by conditional sale and the sallers in the said deed of sale were mortgagors and the buyer therein was the mortgagee and the period of redemption was 2 years as provided in the said agreement for sale dt.declaration that either the defendant Nos. 2 to 7 are the present mortgagee being the heirs and legal representatives of the said Bholanath Auddya, deceased or in alternative the defendant no. 1 is the present mortgages, by subrogation having stepped in the shoes of the said Bholanath Auddya bydeclaration that the right of redemption of the said mortgage by conditional sale is still subsisting and the plaintiffs are entitled to redeem the said mortgage on deposit of the mortgage money amounting to Rs.8500/- in court or such amount as may be determined by the Court or payment of the same to who ever may be declared to be the mortgages orDeclaration that the agreement dated 15.08.60 between the said Bholanath Auddya since deceased and the defendant No. 1 for sale of the property described in the schedule ?A? below is a collusive and fraudulent agreement and not enforceable inDeclaration that the decree dated 30.11.77 of the Hon?ble High Court at Calcutta in Suit No. 171 of 62 for specific performance of contract for the sale of the property described on the schedule ?A? below was obtained by practising fraud upon the court by the defendant No. 1 and the said Bhola Nath Auddya since deceaseddeclaration that the said decree of the Hon?ble High Court at Calcutta and the conveyance executed thereunder on 26.3.79 by the Registrar Original Side of the said Hon?ble High Court for sale of the property described in the schedule ?A? below in favour of the defendant No. 1 are not enforceable in law and the defendant No. 1 cannot take any advantage under the said decree and/ or the said conveyance in enforcement of thedeclaration that the defendant No. 1 has no right title and interest in the property described in the schedule ?A? below either as owner or as landlord nor has any right to file the Ej. Suit no. 782 of 1979 in the city civil court, Calcutta now pending before the Ld. Registrars? Bench and/ or proceeding with thethe suit be decreedfor perpetual injunction restraining the defendant No. 1.From enforcing the said decree dt. 20.11.77 in suit no. 171 of 62 of the Hon?ble High Court at Calcutta and/ or enforcing the conveyance dt. 26.3.79 executed by the Registrar Original side, High Court at Calcutta in favour of the defendant No. 1 under the said decree and/ or taking any advantage under the said decree and/ or taking any and/ or the said conveyance and interfering with the possession of the plaintiffs in the property described in the schedule ?A? below in any way including recording his name in Calcutta Corporation and/ or in the Calcutta Collectorate.From preceding with the Ej. Suit No. 782 of 79 now pending before the ld. Registrar?s Bench City Civil Court, Calcutta.For temporary Injunction to the effect as prayed for in prayer Nos. b(i) and (ii) above till the disposal of this suit.e suit be decreedfor Rs.8500/- or such other sum as may be determined by the court as the present balance of the mortgage money payable by the plaintiffs for redemption of the mortgage.That the property described in schedule ?A? below be freed from the mortgage on deposit in court or payment to whoever will be declared to be the mortgagee or mortgagees by the plaintiffs of the mortgage money to be decreed by the court.t the suitThat thesuit be decreedfor any other relief or reliefs to which the plaintiffs may be entitled under law and equity.The trial Court proceeded to consider the evidence and on the basis of same came to the conclusion that there is no merit in the case set up by Atul Chandra Das. It was found to be a case of mortgage by conditional sale and suit filed by Atul Chandra Das was dismissed and the suit filed by the Bhattacharyas came to be decreed. As already noticed, the High Court has confirmed the said decree.

Reasoning: 10. Keeping Section 58(c) side by side with Section 37(a) of the State Act, the conclusion is inevitable that the State legislature has intended to override the effect of proviso to Section 58(c) of the Transfer of Property Act by enacting Section 37(a) in the State Act. Section 37(a) was incorporated by way of an amendment in the State Act. Reading of Section 37(a) brings out the Legislative intent with unambiguous clarity and therefore the High court was right in relying upon Section 37(a) of the State Act to find that though it was by agreement dated 07.12.1959 which is a separate document that condition to make it a mortgage was incorporated it would not make any difference. We may also notice that despite the sale deed dated 27.11.1959, the Bhattacharyas continued to be in possession of the plaint scheduled property and it has been found that they paid the taxes. It is further found that the market value of the property would not have been less than Rs.30 thousand as on the date of the alleged sale namely 27.11.1959.It will be noticed that a Suit for redemption is mentioned as suit to which Section 36 applies. Section 38 undoubtedly enables the borrowers to seek a direction for taking accounts.We have noticed the relief which was sought in the suit which was considered by the learned Single Judge in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court in the said case could not find a mortgage proved also. The reliefs on the other hand in the suit filed by Bhattacharya include reliefs relating to redemption in the form it is asked for. In fact, no issue in this regard was taken before the Trial Court. We see no reason to non-suit, the Bhattacharyas on this ground which is taken for the reasons which we have given.The last contention taken is that Section 37(a) of the State Act is repugnant to Section 58(c) of the Central Act namely, the Transfer of Property Act. The contention runs as follows:- Money lending falls as entry (30) in the State List. Transfer of Property other than agricultural land falls in Entry 6 in the concurrent list. The State legislature in enacting Section 37(a) of the State Act, a law relating to money lending has made a law which is inconsistent and therefore, repugnant to the law made by the Parliament in Section 58(c) of the Transfer of Property Act. This contention is taken for the first time in this Court. We also see no merit in the same at any rate. Section 37(A) is traceable to the Entry ‘Transfer of Property? which is found in the concurrent list.In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State.The argument that being part of State Act which is the Money Lending Act and Money lending is in the state list and therefore, it is a case of legislative, incompetence, does not appeal to us. We have found that the provisions of 37(A) is traceable to the Entry ‘Transfer of Property? in the Concurrent List and that Article 254(2) saves the provision.