NEMAI CHANDRA MONDAL Vs. BASANTI PORE

JUDGEMENT

(1.) This second appeal has been preferred by the defendant/ appellant challenging the judgment and decree dtd. 31/3/1997 passed by the learned Additional District Judge, 8th Court, Alipore, in T.A. No. 379 of 1994. By the impugned judgment the court below set aside the judgment and decree passed by the Trial court on 31/8/1994 in T.S No. 584 of 1984.

(2.) The main issue involved in this Second Appeal is whether the deed dtd. 25/6/1974 is an out and out sale or it was a mortgage by conditional sale.

(3.) Plaintiff's case in brief is that the plaintiff is an illiterate and rustic woman. After sudden demise of her husband, she faced acute poverty and was in need of money. Accordingly she proposed to take a loan of Rs.500.00 at the rate of 7.5% interest from the defendant no.1. The defendant no.1 also proposed to execute an ekrarnama. At first the defendant no.1 handed over half of the loan amount and the defendant no.1 assured her that the remaining portion of the loan shall be handed over to her after registration of document. The defendant no.1 instructed the plaintiff to come to registry office for the purpose of registration of document and accordingly plaintiff complied the same. In the registry office, the defendant no.1 obtained her L.T.I. (Left Thump Impression) on the document, contents of which was never read over or explained to her. The defendant assured her that said document contains a clause of re conveyance and accordingly asked her to come to his house in the month of Falgun 1391 BS (corresponding to February, 1975), with a sum of Rs.500.00 along with interest. In the next Bengali month of Chaitra, the plaintiff went to the defendants house to repay the loan with interest but the defendant started avoiding the plaintiff on one pretext or the other. The plaintiff became suspicious and she applied for the certified copy of the said document dtd. 25/8/1974 and after obtaining the certified copy she came to know that defendant had practised fraud on her and had not referred to or written about the agreement for re conveyance of the mortgaged property in case of full payment of loan. Plaintiff further claimed that contemporary market price of the suit property was Rs.6,000.00 to Rs, 7000/- and the impugned deed is not an out and out sale deed but it is a deed of mortgage by conditional sale.