MUSHIR MOHAMMAD KHAN Vs. SAJEDA BANO

JUDGEMENT

(1.) Habibur Rehman, who is since dead and is represented by the present respondents, was the owner of a house situated in Gali Masjid Peerji in Ibrahimpura, Bhopal, which he had purchased for a sum of Rs. 3,000/- through a registered sale deed dated 24-2-1949. On 28-12-1955, he executed a sale deed in respect of this house in favour of the appellant, Mushir Mohammed Khan, who also is dead and is represented by the present appellant, for a sum of Rs. 1,000/- only. A few days later, namely, on 3rd January, 1956, Mushir Mohammed Khan executed an agreement in favour of Habibur Rehman agreeing to re-convey the said house if the amount of Rs. 1,000/- was paid back to him within a period of two years. Habibur Rehman also executed a rent note in favour of Mushir Mohammed Khan on the same day. Both the documents, namely, the sale deed dated 28-12-1955 and the agreement for re-conveyance, executed on 3rd January, 1956, were registered on 5th January, 1956. In terms of the rent note, Habibur Rehman started paying Rs. 20/- as rent for the house in question to Mushir Mohammed Khan.

(2.) Treating the above documents as mortgage, Habibur Rehman, who shall hereinafter be referred to as plaintiff, filed a suit for redemption which was dismissed by the trial Court on 5th of July, 1979. The appeal filed thereafter was also dismissed by the Vth Addl. District Judge, Bhopal on 21-12-1982. But the second appeal filed by the plaintiff was allowed by the Madhya Pradesh High Court by the impugned judgment dated 27-8-1987.

(3.) Learned counsel appearing on behalf of the appellant (hereinafter referred to as 'defendant') has contended that the High Court was in error in treating the transaction between the plaintiff and the defendant as mortgage. He contended that since the condition of re-conveyance was not contained in the same document by which the property was sold by the plaintiff to the defendant, the document could not be treated to be a deed of mortgage. It is contended that the agreement by which the defendant agree to re-convey the property in question to the plaintiff was an entirely separate transaction between the parties and even if that document was read along with the sale deed executed earlier, the cumulative effect of both the transactions would not result in a "mortgage" and they will remain two separate transactions, namely, a sale deed by which the property was transferred to the defendant and an agreement by which the defendant agreed to re-convey the property to the plaintiff.