ASVATH NARAYAN ASTAPUTRE Vs. CHIMABAI GOPALRAO SADEKAR

JUDGEMENT

(1.) The only point that arises in this second appeal is whether the lower appellate Court has erred in holding that the document Exhibit 50 was a sale, and not a mortgage, transaction. In taking this view it differed from the trial Court which held the document to be a mortgage that could be redeemed by the plaintiff, who brought thin suit for redemption within sixty years from the date of the document. The document has been translated in the judgment of the trial Court as follows:- We have borrowed from you the sum of Rs. 100 in words Rs. one hundred) for oar necessity. Be it so. The rate of interest agreed on this is half an anna per rupee per mensem Be it so. How the period to repay the same is fixed to be within two months from today, during which period we shall repay you the aforesaid principal and the interest also and we shall take back this deed. If for any reason we fail to pay the amount during the stipulated time, then in lieu of the aforesaid sum, the Government land Survey No. 93, 5 acres -21 gunthas assessed at Km. 12,, together with the pimpal tree standing in my Khata, is sold to you for the aforesaid amount in full satisfaction. Be it so. Accordingly yon should occupy and use the land and go on paying the Government assessment. No sight, title and interest in the said land remains to me. We shall give a Rajinama to Government and get the Khata of the land transferred from my name to that of yours. We shall not fail therein. This sale deed is therefore executed while in sound state of mind. Signed on 17 February 1894 of the Christian Era Shake 1785 Rudhirod. garinam Sumvatsara Magh Shudh 10th, Mark of Huvappa Bin Umana Advekar.

(2.) It is to be remarked that the words in this document translated as " is sold to you " do not give full force to the words in the vernacular, which contain the word " Lagchat." This has the meaning of an " absolute " sale, as noted by the translator in the translation that has been prepared for the purpose of this appeal. On its face, therefore, the document is one by which, in the event of the executant Huvappa not paying the sum of Rs. 100, with intercut at the rate mentioned in the document, within two months from the date of the document, the land mentioned in it was absolutely sold to Nageshappa Naik. The document has the heading sale deed and in its concluding sentence it is also referred to as a sale deed. It has also been pointed out that the stamp paid on the document is one that was correct for a sale deed under the Indian Stamp Act then in force, viz., Act X of 1862, whereas a mortgage deed or an agreement to sell only required a stamp of annas eight. But the appellant's counsel is of course correct in saying that the above considerations are not in themselves conclusive; and although we have to give them due weight, the main thing we have to consider is the terms of the document itself and the surrounding circumstances so far as they appear in evidence and are relevant, in order to determine whether the real intention of the parties in executing this document was to enter into a mortgage transaction or a sale transaction.

(3.) There are two considerations, which are relied upon by the Subordinate Judge in his judgment as indicating that the document evidences a mortgage and not a sale, that can first be disposed of. The first of these is that, as the land is described in the document as assessed at Rs. 12, it might reasonably be expected to bring in an income of Rs. 40 to 50, and it would be absurd to suppose that such land would be sold for Rs. 100 only. It is of course true that one of the main tests in considering a question like that now before us is the relation of the consideration mentioned in the document to the real value of the property transferred, and if the former sum is grossly inadequate, then it affords an indication that the vendor did not intend to sell the land out and out. But of course, before this view is taken, there must be reliable ground for holding that there has been an inadequacy of price such as I refer to. In the present case no evidence has been adduced to show what wore the net profits from the land that were realized or probably realizable in or about the year 1864, when the document was executed. The Court in considering the question of probable net profits can of course take into consideration the assessment of the land. For it has long been an important element in fixing assessments in this Presidency that, it bears a certain relation to the fertility and other circumstances of the land, and us a rough valuation the capital value of a piece of land is often taken as so many times the assessment. But I think that while this may be a fairly safe method of calculating net profits of land that has been assessed at the original survey of about 1880 onwards, it would be very dangerous to hold this equally applicable to assessments fixed some time prior to 1864. I should first of all like to know what were the principles that guided the survey officers in fixing assessments on land at that time. In the absence of some evidence or work of reference to indicate this, I should hesitate to hold that it is a safe basis to go upon in a case like the present. - It is to my mind not unlikely that the assessment of Rs. 12 in force at the time of this document was relatively heavier than what would have been imposed, if the assessment had been fixed on the principles followed in the original survey, with due regard to local conditions and prices at the time when the assessment was fixed. Thus the plaint shows that at the date of the suit the same hind was assessed at Rs. 16 or only Rs. 4 more, and that seems to me to give some indication that the land was somewhat over-assessed in 1864. Consequently, I do not think that the Subordinate Judge was justified in holding that the land could not have been intended to have been sold for Rs. 100, plus the interest of Rs.10, in 1864.