JUDGMENT
Kingaonkar V.R., J.
1. This appeal arises out of judgment rendered by learned Additional District Judge, Nilanga in an Appeal (R.C.A. No. 13/1999), whereby judgment and decree of trial Court in suit for redemption of mortgage has been confirmed.
2. For sake of convenience, the parties may be referred by their first names. Appellant Bhimrao is original defendant. Deceased Respondent Dhondiba was original plaintiff. A suit (R.C.S. No. 525/86) was laid by deceased Dhondiba for redemption of mortgage by reconveyance of suit land. Agricultural land bearing Section No. 91/C, admeasuring 5 acres 9 gunthas (suit land) was owned and possessed by deceased Dhondiba. His case before the trial Court was that due to indebtedness, he needed money and hence, requested Bhimrao to lend an amount of Rs. 4,000/-. Thereupon, Bhimrao agreed to give advance of Rs. 4,000/- on condition that the suit land shall be mortgaged by way of security for redemption of the loan. They agreed that if the loan amount would be repaid within a period of three years then the suit land would be reconveyed by Bhimrao in favour of Dhondiba. There was no intention to alienate the suit land. Thus, a document styled as “Mudat Kharedikhat” (conditional sale deed) dated 9.6.1975 was brought about by them. Though, requested for release of the mortgage yet, Bhimrao did not pay any heed. So, deceased Dhondiba filed proceedings under provisions of the Maharashtra Debtors Relief Act. He was directed to seek remedy in civil Court. Hence, the suit.
3. By his written statement (Exh. 16) Bhimrao resisted the suit. He denied all the material averments made by deceased Dhondiba. He contended that the transaction was that of out and out sale. He asserted that it was a conditional sale with concession given to Dhondiba to repurchase the suit land within three years. He asserted that the sale became absolute after the period of 3 years inasmuch as Dhondiba did not seek reconveyance within the stipulated period. He denied that the transaction was not intended to be a sale. He further submitted that the Competent Authority under the Maharashtra Debtors Relief Act rendered decision against the deceased – Dhondiba and, therefore, it cannot be said that there was relationship of creditor and debtor between them. He further asserted that the decision of the competent authority under provisions of the Maharashtra Debtors Relief Act would amount to res judicata. He contended that suit claim is untenable and Dhondiba was estopped from seeking any relief. Hence, he sought dismissal of the suit.
4. The parties went to trial over issues struck below Exh.35. They adduced oral and documentary evidence in support of the rival contentions. On merits, the trial Court came to the conclusion that the transaction was a mortgage by conditional sale within the meaning of Section 58(c) of the Transfer of Property Act. The trial Court held that the condition that after three years the sale was to become absolute is clog on the mortgage and hence, void and inoperative. The trial Court decreed the suit in keeping with such findings. The first Appellate Court confirmed findings of the trial Court.
5. The Second Appeal was admitted on following substantial question of law:
Whether the document dated 9.6.1975 titled as conditional sale is a mortgage or otherwise (sic. – sale deed with condition to repurchase).?
6. Mr. Sagar Killarikar, learned Advocate for the appellant strenuously argued that the transaction cannot be treated as mortgage by conditional sale. He would submit that unless there is debtor and creditor relationship between the parties, the inference of the transaction being one of mortgage is illegal and illogical. He invited my attention to recitals of the sale deed in question. He would submit that language of the document does not indicate that the parties intended to create transaction of mortgage by conditional sale. He would submit that mere fact that period of three years was stipulated in the document, by itself, cannot be sufficient evidence to reach conclusion that the transaction was of mortgage by conditional sale. He seeks to rely on Vasant Pandu @ Pandurang Birwatkar and Anr. v. Shankar Dhondu Ghole and Anr. and Nana Tukaram Jaikar v. Sonabai and Ors. . He strenuously took me through record of the trial Court and contended that findings of both the Courts are perverse and liable to be set aside. Mr. N.P. Patil (Jamalpurkar), learned Advocate for the respondents, support both the judgments of the courts below.
7. Before I proceed to scrutinise the oral evidence adduced by the parties, let it be noted that the pleadings of Dhondiba clearly show that he was indebted at the relevant time. Admittedly, Bhimrao is his cousin. Both of them are inhabitants of same village. It is also explicit that recitals of the sale deed in question indicate that the sale was only for three years period. The amount of Rs. 4,000/ – was not shown as market price of the suit land nor it was paid in presence of the Sub-Registrar. The recitals of the sale deed go to show that the document was to become sale deed after three years period if the amount was not repaid by Dhondiba and on his failure to obtain reconveyance of the suit land. It was only after the period of three years that Bhimrao was entitled to continue possession and cultivation of the suit land in regular manner.
8. The nature of transaction can be determined on the basis of recitals of the document, attending circumstances, intention of parties and their conduct. On behalf of deceased Dhondiba (plaintiff), in all three witnesses were examined, including himself. His version purports to show that Bhimrao agreed to give amount of Rs. 4,000/- as a loan in lieu of transfer of the suit land for a period of three years. His version reveals that the transaction was mortgaged by conditional sale. He states that he sent a notice calling upon Bhimrao to reconvey the suit land. He filed postal receipt (Exh. 72) in support of his such contention. He admits that he had initiated proceedings under provisions of the Maharashtra Debtors Relief Act but said proceedings were dismissed. On perusal of the orders rendered by the competent authorities, it is conspicuous that the concerned authority held that Bhimrao was not a money lender. The competent authority directed deceased Dhondiba to approach Civil Court for the reliefs which were claimed by him. The competent authority held that deceased Dhondiba failed to prove that he refunded entire amount which was advanced to him. The Competent Authority held that the nature of transaction did not cover the provisions of the Maharashtra Debtors Relief Act. The orders of the Tahsildar, Nilanga and Sub-Divisional Officer, Udgir in those proceedings are of no consequence inasmuch as the scope of the inquiry was limited to examine whether debtor stood discharged of the debt due to repayment of the amount.
9. The case of Dhondiba is further corroborated by P.W. No. 2 Raghunath. His version reveals that Dhondoba was in need of money. His version purports to show that house property of Dhondiba was likely to be sold by a Bank and hence, he urged to advance loan. He admits that Bhimrao has dug a well in the suit land. The most relevant and significant evidence is that of P.W. 3 Syed Safdarali. He is attesting witness of the sale deed in question (Exh. 113). It is the version of P.W. Syed Safdarali that Bhimrao was in need of money in 1975 and, therefore, executed the sale deed. He states that the amount was not paid before Sub-Registrar. He corroborates case of the plaintiff Dhondiba that the transaction was outcome of money lending. Nothing of much importance could be gathered from his cross-examination. The only discrepancy appearing from his evidence is regarding the cause for which Dhondiba needed money. P.W. Syed Safdarali states that Dhondiba needed money for marriage purpose whereas P.W. Raghunath states that it was needed to discharge loan of a Bank. The discrepancy is insignificant and trivial.
10. The version of D.W. 1 Bhimrao, D.W. 2 Tatyarao and D.W. 3 Walmik would show that the suit land was developed by Bhimrao after execution of the sale deed. It is admitted by D.W. Bhimrao that there was no agreement of sale. He admits that price per acre was not settled. He does not know in 1975 which of the daughters of Dhondiba was married. He did not make inquiry as regards encumbrances on the suit land. He does not know whether Dhondiba was indebted since the period of famine (1972). He admits that there is omission in the written statement as regards alleged development of the suit land by him. He further admits, unequivocally, that he never enquired whether the suit land was having encumbrances or was free from other rights of third parties. Thus, his conduct does not appear to be that of a prudent purchaser. He did not settle acreagewise consideration of the suit land. He got dug a borewell in the suit land after dismissal of the proceedings filed under provisions of the Maharashtra Debtors Relief Act. It appears that he did not reply Dhondiba’s notice issued through Advocate Shri Shinde. The other oral evidence of his witnesses need not be discussed elaborately.
11. In “Nana Tukaram Jaikar v. Sonabai and Ors. (supra), the Court noticed that the house property was alienated by said Nana Tukaram without any encumbrance. The purchaser was to enjoy the property forever if the amount was not paid within stipulated period of 5 years. It was found that the ownership was transferred at the time of execution of the sale deed. The Court further reached conclusion that the relationship of debtor and creditor was not created between the parties. It is due to such reasons that the transaction was held as out and out sale with condition to repurchase the suit land. In Vasant Panda @ Pandurang Birwatkar and Anr. v. Shankar Dhondu Ghole and Anr. (supra) a Single Bench of this Court held that the Court has to read the document as a whole and gather the intention of parties thereto. It was held that in view of near relationship of the parties, concession was given to seek reconveyance if the amount was refunded. In the given case 10 years period was stipulated under the deed for reconveyance of the suit land. This Court held that the transaction was of sale with condition to repurchase in view of peculiar facts which were brought on the record. There are cases and cases.
12. The fact situation in present case stands on different footings. Herein, Bhimrao (defendant) did not make inquiry as to whether the suit land was encumbered. There is no evidence on record to show that the parties had settled price of the suit land in accordance with acreage. The recitals of the sale deed would show that the sale was for a limited period of three years. It is not a permanent sale with condition to reconvey within a period of three years but the sale was to become permanent on failure to repay the amount within the period of three years. The transfer of title was thus conditional. There was fiduciary relationship between the parties. D.W. Bhimrao avoided to explain whether he received any other communication of which the postal acknowledgment (Exh. 72) is produced by deceased plaintiff-Dhondiram. As stated before, attesting witness P.W. Syed Safdarali corroborates case of deceased Dhondiram. He categorically states that Dhondiram executed the conditional sale deed due to need of money. It was not even suggested to him that the document is outcome of sale transaction.
13. The recitals of the sale deed purport to show that Dhondiba was supposed to return the amount of Bhimrao. The words used in the document are “…” (your money). The said recitals indicate money lending transaction in view of observations in Patel Atmaram Nathudas and Ors. v. Patel Babubhai Kashavlal A.I.R. 1975 Gujarat 120. The Apex Court in Chaunchun Jha v. Ebadat Ali and Anr. 1954 DGLS 66 : A.I.R. 1954 Supreme Court 345 and Bhaskar Woman Joshi v. Shrinarayan Rambilas Agarwal 1959 DGLS 188 : A.I.R. 1960 Supreme Court 301 held that such question has to be decided upon its own facts and that the intention of the parties as shown by the document is the determining factor. The Apex Court held that where the parties, after amendment of Section 58(c) of the Transfer of Property Act, chose not to use two documents and recite term of the reconveyance in the same document, presumption would be that the transaction is that of a mortgage by conditional sale. In similar fact situation, this Court in Shivram Bhika Bodkhe and Ors. v. Sadashiv Laxman Sanap , held that presumption may be drawn when the persons, who after the amendment of Section 58(c) of the Transfer of Property Act, choose not to use two documents, do not intend the transaction to be that of a sale. The defendant-Bhimrao in the instant case has not adduced sufficient evidence to displace the presumption. Considering totality of the circumstances and evidence on record, it will have to be said that the parties intended to create mortgage by conditional sale. In this view of the matter, I find it difficult to dislodge the findings of the courts below. The document dated 9.6.1975 is a mortgage by conditional sale and hence, there appears no merit in the instant appeal.
In the result, the appeal fails and is accordingly dismissed with costs.