TULSI DEVI Vs. CHANDRIKA PRASAD

JUDGEMENT

(1.) THE substantial question of law to be answered in this appeal preferred by the defendants -appellants is whether the learned Courts below erred in construing the instrument dated 30.12.1968 as a mortgage as a conditional sale. Thus, Ext. B, which is the deed and has been construed by the two Courts below as a deed of mortgage with conditional sale required to be reconstrued. It is the settled principle of law that the interpretation of the document is always a substantial question of law and on this point, both the parties in this appeal have no dispute. Learned counsel for the appellants, in this connection, referred to AIR 2000 SC 3009.

(2.) THE question aforesaid arose out of the facts that the plaintiff -respondents had filed a suit for redemption of mortgage. The deed Ext. B was admittedly executed by the defendant No. 3, Jwala Prasad Sah, (who did not counter the suit, nor deposed in the case) on 30.12.1968 and a registered in favour of defendant No. 1 for a consideration of Rs. 4500.00 . The details of the property is described in the deed itself as also in the plaint. On 30.11.1968, the said Jwala Prasad had transferred by a deed of simple mortgage the northern part of the property in Ext. B to one Balmukund Prasad Choudhary for a mortgage money of Rs. 4300.00 . On 14.9.1971, the said Jwala Prasad Sah sold the entire block to the plaintiff 'sby a registered deed of sale for a valuable consideration of Rs. 14,000.00 , which includes the transfer conveyed by Ext. B as also the transfer conveyed by simple mortgage in favour of Balmukund Prasad Choudhary absolutely to the plaintiff - respondents. The sale to plaintiff was made for repayment of antecedent debts including those of mortgage money. Then subsequently the plaintiff issued successive notices dated 5.10.1971 and 23.10.1971 through Advocates to the defendant No. 1 informing her to redeem the mortgage on payment of the mortgage money. The plaintiff No. 1, on 30.12.1971, also went to defendant No. 1 to tender mortgage money but failed to meet Bulaki Ram Versus Jatru Mahali defendant No. 1, the plaintiff tendered the money to defendant No. 2, who is the husband of the defendant No. 1, but the defendant No. 2 refused to accept it. Consequently, the plaintiff deposited the entire amount in the Civil Court and thereafter brought the suit for a decree for redemption as also for mesne profit for the period from 3.1.1972 till actual recovery of possession of the suit property and in alternative, a decree for specific performance of contract directing the defendant Nos. 1 and 2 to execute a deed of sale in favour of the plaintiff and on failure of the defendant Nos. 1 and 2 to do so, the Court be pleased to execute and register the sale deed in respect of the suit property in favour of the plaintiff.

(3.) LEARNED trial Court in its judgment construed the different phrases occurring in Ext, B such as Mokir, which means Seller, Mokiraley, which means purchaser, Jaidad Zere saman which means consideration amount, Jaidad Shai Mobaiya which means property to be sold, Bagair Kiya Bikari Shai Mobatya which means without selling. The property being sold, Kharidne Ko Amada Huai Aur Kharidana Manjoor Kiai which means became ready to purchase and accepted to purchase and Wasike Haza Ke becha aw Zaresamman Diya which means sold and gave the consideration amount. The document is described as Taksukh Makphula. In place of consideration amount, it is written as Zare Makphul and Zere Samman and the property to be mortgaged is written as Saimakphula. Then the learned trial Court also on the basis of oral and documentary evidence adduced before it found that scriber of the deed admitted that he had written the deed of Baibulbafa (Ext. B) and though the area through this deed was half of the area that was given to one Balmukund Prasad Choudhary by a mortgage deed but the consideration of the mortgage deed was Rs. 4300.00 whereas the total consideration amount of the land, (whole Ext, B), was only Rs. 4500.00 and these two transactions had taken place during an interval of one month and thus, the learned trial Court found that the consideration amount of this deed is much less than what could be the consideration amount of the mortgage deed in favour of Balmukund Prasad Choudhary, It also found that during the relevant period of transaction, according to PWs the valuation of the suit property would have been Rs. 14,000.00 to Rs. 15000.00 and that of the shop mortgaged to Balmukund Prasad Choudhary Rs. 7,000.00 to 8,000.00 . DW 7 had said that at the time of the relevant transfer, the valuation of the suit property was Rs. 5,000.00 and considering those evidence, the trial Court found that there would not have been so much agreement in the price if actually the transaction dated 30.12.1968 would have been out and out a sale. Trial Court also found that the stamp paper was purchased by Jwala Prasad Choudhary, which is usually done in the case of mortgage. Then construing the documents and also noticing these attending circumstances, the trial Court came to a finding that the Ext. B was a deed of mortgage with conditional sale and not a sale with condition to repurchase and consequently decreed the suit.