Case: SOPAN(DEAD) THROUGH HIS L.R Vs. SYED NABI

3. The brief facts are that the plaintiff and the defendant were known to each other and due to such acquaintance, the plaintiff had taken money from the defendant as and when such financial assistance was required. At a stage when the plaintiff received a sum of Rs.5,000/-, the same was construed as the consideration for the land owned by the plaintiff bearing Survey No.2/A measuring 6 acres 2 guntas and the defendant already being put in possession of the said property, a registered sale deed dated 10 th December, 1968 was executed in favour of the defendant. A separate agreement dated 10 th December, 1968 was also entered into between the parties whereby the plaintiff had agreed to repay the said amount and secure reconveyance of the property. Another agreement was entered into on 29 th August, 1969 between the parties under which the respondent-plaintiff agreed that he has taken Rs.5,000/- from the appellant-defendant and the possession of the land was given. In addition, respondent-plaintiff has received a sum of Rs.2,224/- without any interest, in all Rs.7,224/-. The respondent-plaintiff agreed if the amount is not repaid on ?Velamavasya? the deed will be considered as sale deed. It is in that background the plaintiff claiming that he is prepared to repay the amount so as to secure back the property and, in that regard, construing the transaction as a mortgage, got issued a demand notice dated 10 th September, 1980 through his Advocate. The defendant got replied the said notice on 23 rd September, 1980 and disputed the claim put forth by the plaintiff. The plaintiff, therefore, filed the suit as stated above. The defendant entered appearance and filed the written statement disputing the claim. The trial court though had framed several issues, the entire consideration rested on the construction of the sale deed dated 10 th December, 1968 and the contemporaneous documents, so as to consider whether the same amounts to a mortgage by conditional sale in the nature of contention put forth, or as to whether it is a sale transaction.4. In the present appeal, it would not be necessary for us to reappreciate the evidence inasmuch as, only the nature of the transaction will have to be taken note from the three documents, namely, Exhibits 23, 24 and 14/1 around which the entire controversy revolves. Before adverting to the said documents, it would be also necessary to take note of the provision as contained in Section 58 (c) of the Transfer of Property Act which reads asMortgage 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 absoluteon condition not 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 a 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]. "(emphasis supplied)

Reasoning:
5. From a perusal of the proviso to Section 58(c) as emphasised, it indicates that no transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale. Therefore, any recital relating to mortgage or the transaction being in the nature of a conditional sale should be an intrinsic part of the very sale deed which will be the subject matter. In that background, a perusal of the document at Exhibit 23, namely, the sale deed dated 10 th December, 1968 would make it clear that the document does not disclose that the transaction is one of mortgage or that of a conditional sale. However, the issue as to whether it should be construed as mortgage has presently arisen since the agreement dated 10 th December, 1968 at Exhibit 24 being a contemporaneous document is relied upon by the plaintiff to claim that the same indicates that the transaction is a mortgage and the relationship of debtor and the creditor is established by the said document. In addition, the document which is also to be noticed is at Exhibit 14/1 dated 29 th August, 1969. It is no doubt true that in the document at Exhibit 24 it depicts that the sale deed is reconveyable when the plaintiff would repay Rs.5,000/- to the defendant and the land would be retransferred. It also indicates that the interest of Rs.720/- is agreed to be paid every year on the day of ?Gudi Padwa?.Keeping in view the enunciation of the legal position, we notice that in the instant case admittedly the claim of the plaintiff is based on the reliance placed on a contemporaneous document at Exh.24. Hence at the outset, it is evident that the case of the plaintiff cannot overcome the rigour of law to term it as a mortgage by conditional sale. That apart even if the nature of the transaction is taken note of and in that context if the sale dated 10 th December, 1968 (Exh.23) is carefully perused, it not only does not indicate any clause to demonstrate it as a mortgage but, on the other hand, refers to the sale consideration, the manner in which it was received and the plaintiff as the vendor by executing the document has assured the defendant that he should enjoy possession of the said land ancestrally which, in other words, is an absolute conveyance. In that background, even if the agreement dated 10 th December, 1968 (Exh.24) is taken note, the same cannot alter recitals in the sale deed to treat the same as a mortgage by conditional sale. At best the said agreement (Exh.24) can only be treated as an agreement whereby the defendant had agreed to reconvey the property subject to the repayment being made as provided thereunder. It is in that circumstance, the document dated 29 th August, 1969 (Exh.14/1) is to be viewed. From a combined reading of Exhibits 24 and 14/1 it would disclose that not only the plaintiff has not repaid the sum of Rs.5,000/- with interest but had received a further sum of Rs.2,224/-, thus in all taking the financial assistance treated as sale consideration to Rs.7,224/-. Hence, if the reconveyance as agreed under Exh.24 was to be effected the said amount was to be repaid on ?Velamavasya? failing which the right of reconveyance would be forfeited and the sale deed would become absolute after which even the right of reconveyance will not be available. Admittedly amount of Rs.2,224/- was not repaid by the plaintiff. In that background, in any event, the document cannot be considered as a mortgage by conditional sale.9. In the above background, if the entire transaction is taken note, since the amount was not repaid the defendant had acquired absolute right to the property. Hence, he had also initiated mutation proceedings to secure the revenue entries relating to the land in his favour. Though the plaintiff had opposed the proceedings the very contention urged herein had been taken note therein and the Tehsildar by the order dated 23 rd July, 1974 (Exh.21) has ordered the revenue entries to be changed to the name of the defendant. Change of mutation in the name of the defendant is a formidable circumstance to show that the Exh.23 is a sale deed conveying absolute right and title to the defendant.10. Though the learned counsel for the plaintiff has relied upon the decision in the case of Bhimabai Mahadeo Kambekar vs. Arthur Import and Export Co., (2019) 3 SCC 191     to contend that the mutation of land in the revenue records does not create or extinguish the title for such land, nor has it any presumptive value on the title, the said decision would not be of relevance in the present context as the mutation proceeding becomes relevant in the instant proceedings though not for the purpose of title. We say so only to indicate that in the present facts, while construing the nature of the transaction and while considering as to whether the plaintiff had a right of redemption as a mortgagor, the fact that the defendant had acted upon the sale deed dated 10 th December, 1968 on the same becoming absolute in view of the reconveyance not being affected pursuant to the agreement dated 10 th December, 1968 and in that circumstance, the right was exercised to secure the mutation order pertaining to the land is to be treated as a relevant circumstance. Further, though such mutation order was passed on 23 rd July, 1974 in a proceeding in the presence of the plaintiff the said order was not assailed before an appropriate forum and it is only in the year 1980 the suit in question came to be filed.11. In the above circumstance the suit seeking redemption of mortgage was not sustainable. If at all the agreement of reconveyance (Exh.24) was to be pressed into service, the appropriate course ought to have been for the plaintiff to institute a suit seeking for the relief of specific performance. In such suit the consideration would be on the touchstone of the principles required to be satisfied as governed under the provisions of the Specific Relief Act. To that effect there should be appropriate pleading and evidence in support of the contentions which is not presently satisfied as the suit is instituted on a misconception.