KESHAVRAO BHAGVANT Vs. RAYA PANDU

JUDGEMENT

(1.) In this case the lower appellate Court and the first Court have held that the deed in question, Exhibit 24, is a mortgage deed and not a deed of out-and-out sale by the plaintiff to the defendant. The deed itself which is dated 1 July 1889 runs as follows : - Given in writing to the party purchasing (namely) Ra: Ra : Keshavrao Bhagvant Shikarkhanc, residing at Kasbe Supe in the Taluka of Bhimthadi, by occupation an agriculturist,-by the party selling (namely) Pandu bin Gundaji and Raya and Shambhu bin Panduji Patil Bhadole, residing at Majre Bhadolyachi Vadi at Kasbe Supe in the Taluka of Bhimthadi, the occupation of the three persons being that of agriculture. (We) give in writing this sale-deed for a reason as follows :- From among us Pandu passed in writing to you two mortgage-deeds with possession,(one)for rupees two hundred and seventy one on the 12 of November in the year 1885 and (the other) for rupees one hundred on the 29 of July in the year 1886 in respect of two plots of land appertaining to his own share out of Survey No. 101, situate at Baburdi. On an account having been made in respect thereof, (amount) -including Government dues, principal and interest has come to seven hundred and ten rupees, thirteen annas and four pics. The lease dated 13 January 1886 in respect of these lands was passed in writing by Hari Jagtap and got registered. Only rupees twenty five were paid in respect thereof. The same having been deducted, (a sum of) rupees sixhundred eighty five, annas thirteen and pies four was found payable to you under an account. Further we, having carried on the Vahivat in respect of the said lands with lease passed in writing to you and without lease, did not pay moneys in respect of Khand (i.e. fixed rent) on account of our inability to pay. You therefore filed a Suit No. 2 of 1889 in the Court of Rao Saheb Mamlatdar of Bhimthadi; you obtained an order of assistance dated the 12 April 1889 for recovering twenty five rupees with costs. As we had no means to pay, you did not receive the said moneys too from us. Consequently you brought a Suit No. 28 of 1889 for obtaining possession of the said lands and you, having obtained an order of the said Court dated... for getting possession of the said lands together with crops from us, took possession. Further you meant to file a suit for the sale of the said lands through Court in accordance with the terms of the said mortgage-deed. As the expenses in respect of the same would increase without any ground, and as owing to the dearth of last year we could not conveniently pay off moneys of the Khand (i.e. fixed rent) and of the principal amount and interest, and as the moneys due to you have amounted to a considerable sum (i.e.) the moneys have exceeded the value of the mortgaged lands, we sell the lands (to you) for the said sum and for rupees fourteen which are this day taken in cash for household purposes,-in all for rupees six hundred ninety nine, annas thirteen and pies four. The said (lands) are as mentioned below.- (Here follow the particulars of the lands at Baburdi and Supe). In this manner the jirayat and bagayat lands situate within the above- mentioned four boundaries together with trees and shrubs and all the appurtenances and the well and working Bhudkya which there are in the Survey No. 101, together with the right of taking water, Pat The role Pat and water together with our claim, right and interest of ownership, are sold to you for the said sum of Rs. 699-13-4, in words, six hundred ninety nine (rupees), thirteen annas and six (6) pies. But the lands situate at Baburdi, are, under the mortgage (deed), in your possession. The said possession is retained in this sale-deed ; and the possession of lands situate at Supe will be given after six months. You, your children and grand-children, paying the Government assessment of the lands situate at Baburdi, are to enjoy the same. We will transfer the Khatas in respect of the said lands to your name whenever you desire. We, or our heirs and representatives, have at all no claim, right, interest left to these lands. We agree that the amounts have been paid as mentioned above. Hence there is no dispute as regards payment. All the previous morlgage deeds, having been cancelled, are kept with you for Dakhla (proof). Now we have nothing to pay to you in respect of the previous debts, If anything is found, the same is null and void. The sale-deed is duly given in writing by us of our own free will.

(2.) Some doubt was created in my mind by the last few sentences of the deed, but having had the original read to me, that difficulty has been removed, inasmuch as from the original it appears clear that the deed was intended to refer to the above-mentioned land, viz., the land at Baburdi and Supa respectively throughout.

(3.) Another difficulty to my mind was caused by the fact that it appears that the consideration for the deed was inadequate to a considerable extent. But having regard to the fact that the deed itself says that the monies were due in respect of the Baburdi land "which had been mortgaged to the defendant by the plaintiff previously and considerably exceeded the value of these lands", it appears that the consideration for the deed was not so inadequate as the first Court has held it to be-Consequently there was full consideration in law for the passing of the deed, and no evidence could be given to invalidate the deed under Proviso (1), Section 92 of the Evidence Act, viz-to show either fraud or want or failure of consideration which must be total. Fraud has not been alleged in the case throughout; and, therefore, there is no circumstance whatever which would enable Proviso 1, Section 92, to come into force. Both the lower Courts have gone in for a lengthy discussion as to the surrounding circumstances which may be taken into consideration in considering whether the deed is one of mortgage or sale. Both the lower Courts have also discussed from that point of view, what has been termed the intention of the parties.