SAJEDA BANO Vs. MUSHIR MOHAMMAD KHAN

JUDGEMENT

(1.) THIS is plaintiff's appeal under Section 100 of the Code of Civil Procedure and is directed against the judgment and decree dated 21-12-1982, passed by V Addl. Judge to the Court of District Judge, Bhopal in Civil Appeal No. 17-A of 82, arising out of the judgment and decree dated 5-7-1979, passed by II Civil Judge, Class II, Bhopal in Civil Suit No. 57-A of 77.

(2.) THE dispute between the parties is about a house situated in Gali Masjid Peerji in Ibrahimpura, Bhopal. It is not in dispute that this house was owned by the appellant, Aziz Rehman who purchased the same for a valuable consideration of Rs. 3,000/- on 24-2-1949 by a registered sale-deed, Ex. P-1, on 28-12-1955 a sale-deed in respect of this very house was executed by the appellant in favour of respondent, Mushir Mohammad Khan for a valuable consideration of Rs. 1,000/- only. This sale-deed was, however, not registered on that date (Ex. P-2 ). On 3-1-1956, the appellant executed a rent note in relation to this very house in favour of the respondent and agreed to pay Rs. 20/ - per month as rent (Ex. P-4 ). On this very date i. e. 3-1-1956, the respondent executed a deed of reconveyance agreeing to reconvey the sold property to the appellant if he paid the principal sum of Rs. 1,000/- within a period of 2 years (Ex. P-3 ). Later on, the sale-deed dated 28-12-1955, (Ex. P-2) and the deed of re-conveyance, (Ex. P-3) were got registered before the Sub-Registrar, Bhopal on 5-1-1956. Case of the appellant-plaintiff was that the suit house was mortgaged on 3-1-1956 when the rent note was executed and also on 5-1-1956 when the sale-deed and the deed of reconveyance were registered. According to him, he had been regularly paying rent and the said amount would be liable to be adjusted towards the principal amount. His further case was that on 11-7-1982, he requested the respondent to settle the accounts and release the house but the respondent refused to do so, as the period of re-conveyance had expired. The further case of the appellant was that he had been residing as owner thereof and had invested a sum of Rs. 4,000/- on the construction of the room in the same, besides expenses in improvement etc. He, therefore, prayed for a preliminary decree, requiring the respondent-defendant to settle the account and re-convey the house. He also prayed that in case the respondent did not do so, the Court may give such necessary relief as may be justified. The respondent defended the suit and denied that the suit house was mortgaged. According to him, the house was unconditionally sold on 5-1-1956 when the deed was registered. The respondent, however, admitted the execution of the deed of re-conveyance and rent note but submitted that they were not of any benefit, as the terms contained therein were not incorporated in the sale deed. He relied on Section 58 (c) of the Transfer of Property Act and submitted that the sale was absolute and unconditional. The learned trial Judge, on consideration of evidence on record held that it was not proved that the suit house was mortgaged. According to him, the house was unconditionally sold and deed of reconveyance or rent note could have no legal effect because of the proviso to Section 58 (c) of the Transfer of Property Act. The suit was accordingly dismissed. Learned lower appellate Court affirmed the aforesaid view and dismissed the appeal. That is how the matter is placed for consideration of this Court in this appeal.

(3.) THIS Court while admitting the appeal for final hearing on 28-6-1983, framed the following substantial questions of law for consideration:-