Full Judgment Text
2019:BHC-AS:9717
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 407 OF 2014
ALONGWITH
CIVIL APPLICATION NO. 140 OF 2018
1. Bhagubai Nana Dhondge, Age : 80 yrs
Deceased, through her legal heirs
1A Chandrakant Shivaji Dhondge,
Age : 25, Occupation-Tea Shop
1B Suryakant Shivaji Dhondge,
Age : 26, Occupation-Tea Shop
1C Laxmikant Shivaji Dhondge,
Age : 24 yrs, Occupation-Tea Shop
1D Shrimati Vimal Shivaji Dhondge,
Age : 55 yrs, Occupation-Household,
All residing at 1-A to 1-E, Vita,
Bhaman Galli, Taluka-Khanapur,
Dist : Sangli. …..Appellants
(Orig. Plaintiffs)
V/s.
1. Shantabai w/o. Dasharath Suryawanshi
Age : 63 years,
2. Hemant Dasharath Suryawanshi,
Age : 44 years,
3. Ranga Dasharath Suryawanshi,
Age : 22 years
4. Dinkar Dasharath Suryawanshi,
Age : 20 years,
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5. Kamal a/w. Tanaji Achare, Age 42 years
6. Uma w/o. Sambhaji Bhosale, Age 36 years
7. Bebi Mahadeo Nikam, Age 34 years
8. Suman Prakash Shinde, Age : 38 years,
9. Sanjivani Annasaheb Yadav,
Age : 30 years, Occupation-Household
All agriculturists, residents of Vite,
Taluka-Khanapur, District-Sangli,
Now Nos.5 & 6 residents of Walva,
Taluka-Walva, District- Sangli, No.7
resident of Yelavi, Taluka-Tasgaon
District- Sangli.
10. Sujata Uttam Nalavade,
Age : 28 years, Occupation-Household,
C/o. N.T. Uttamrao, Katipuram,
Dist. Malapuram, Kerala State.
11. Shahabai Anna Pol, Age : 65 years,
Resident of Vita, Taluka-Khanapur,
District- Sangli.
(SA stand abated as against R. No.11
vide Reg. Judl (II) order dt. 18/12/12.
12. Baban Rajaram Suryawanshi, Age 55
Residing at Balawadi (Bhalavani)
Taluka- Khanapur, Dist. Sangli.
13. Sau. Yesabai Maruti Phalke,
Age : 50 yrs, Kundal, near Petrol Pump,
Kundal, Taluka- Tasgaon, Dist. Sangli ….Respondents
(Respondent
Nos.1 to 8 Orig.
Defendants.)
&
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Respondent Nos.9-12
Orig. Plaintiffs.
Mr. Sandesh D. Patil, Advocate for the appellants.
Mr. Girish Paryani, Advocate for the respondents.
CORAM : SANDEEP K. SHINDE, J. CORAM : SANDEEP K. SHINDE, J.
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Resd. Judgment on : 6 Resd. Judgment on : 6 March, 2019. March, 2019.
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Pronounced Judgment on : 20 Pronounced Judgment on : 20 March, 2019. March, 2019.
JUDGMENT : JUDGMENT :
1. Construction and interpretation of documents
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dated 4 February, 1970 and re-conveyance dated 25
January, 1971 under which claim to property is made, is
the substantial question of law.
2. The appellant's-plaintiff's suit for declaration and
one-fourth share in the suit property and its separate
possession was decreed by the learned Civil Judge Junior
th
Division, Vita on 29 April, 1994. This decree was
challenged by the defendant (brother of the plaintiff) in
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Regular Civil Appeal No. 370 of 1994. This Appeal was
allowed and the decree passed by the trial Court was set
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aside by judgment and order dated 7 July, 2007 by the
District Judge-II, Sangli. It is against the decree passed in
Regular Civil Appeal No. 370 of 1994, the plaintiff has
preferred this Second Appeal.
3. With the consent of the parties, the Appeal is
taken up for final hearing at the admission stage. I will
refer the parties as per their status in the suit.
4. The parties to the Appeal have filed the paper-
book and it is taken on record.
5. The suit property is agricultural land bearing Gat
No.41/1-A and 41/1-b admeasuring 1 hectares and 51 Ares
plus 19 Ares, a well and a house property bearing House No.
1747 within the municipal limits of Vita, which is more
particularly described in plaint, para-1, which shall be
referred to as “the suit property”.
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6. Plaintiff-Bhagubai, is a daughter of Gangubai.
Gangubai died in 1972 and is survived by two sons and two
daughters. Amongst daughters, Bhagubai is the plaintiff
who filed, suit for partition against Rajaram her brother,
legal representatives of another brother Dashrath, and
sister Shahabai. Deceased, Gangubai was residing with her
son, Dashrath at the time of her death. It is not in dispute
that, the suit property was received by Gangubai from her
father under a settlement deed as her lifetime estate vide
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settlement deed dated 7 May, 1927. As the husband of
Gangubai predeceased her, she was the full owner thereof
after the Succession Act, 1956 came into operation.
Plaintiff-Bhagubai, somehow came to know about the
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transfer of suit property effected by Gangubai on 6 May,
1970 in favour of the deceased, Dashrath. She alleged that,
such transfer being void, ab-initio was not binding on her
share. It is her case that, Gangubai died intestate and
plaintiff being her daughter, she inherits and succeeds the
suit property. The plaintiff alleged, that her brother,
Dashrath and sister, Shahabai in collusion with each other
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th
got the sale-deed dated 6 May, 1970 executed in favour of
Dashrath, and attempted to deprive her share in the suit
property. On the backdrop of aforesaid facts, the suit was
filed for declaration, partition and separate possession of
the suit property.
7. Legal representatives of Dashrath denied
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plaintiff's right, and contended that, on 6 May, 1970
deceased, Gangubai executed a registered sale-deed in
respect of the suit property in favour of their father for
consideration of Rs.700/- and further contended that the
suit property being exclusive property of Gangubai, she had
every right sell it. It is the defendant's case that, by virtue
of the sale-deed, Dashrath acquired title of the suit property
and thus plaintiff had no right to claim share therein.
8. Shahabai, sister of the plaintiff reiterated
the defence of Dashrath and would state that, deceased-
Gangubai was the full owner and was having absolute power
to dispose her own property which she did by executing
registered sale-deed in favour of Dashrath to which she was
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the attesting witness. However, Rajaram another brother of
the plaintiff supported the plaintiff's claim, for partition.
9. The Appellate Court held that, the suit property
was not a co-parcenery property but separate property of
Gangubai and she had every right to dispose of at her will.
10. Before adverting to the substantial question of
law, it may be stated that, Gangubai in her lifetime, vide
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registered document dated 4 February, 1970 handed over
possession of half share in the suit property no.41/1A to one
Bhiku Narayan Gaikwad, however, had reserved a right to
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claim and obtain its possession within two years. On 25
January, 1971 Bhiku Narayan Gaikwad handed over
possession back to Gangubai vide registered document titled
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as “Re-conveyance -Rs.900/-” dated 25 January, 1971.
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. The question is, whether the document dated 4
February, 1970 executed by Gangubai in favour of Bhiku
Gaikwad was a mortgage with a conditional sale or a sale
with an option of re-purchase. I will answer this question
later. However, it is the plaintiff's case that, vide Deed dated
th
4 February, 1970 Gangubai sold the property to Bhiku
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Narayan Gaikwad, with an option to repurchase it and thus
as on date she ceased to be the owner of the suit land.
Resultantly though, the sale-deed was executed by
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Gangubai on 6 May, 1970, Dashrath did not acquire rights
in the suit property. It is the plaintiff's case that, on re-
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conveyance by Bhiku on 25 January, 1971, Gangubai
became the owner of the suit property and thereafter died
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in 1972. Thus, in the intervening period, from 4 February,
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1970 till 25 January, 1971 Gangubai had no title in respect
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of the suit property. Therefore, the sale-deed dated 6 May,
1970 executed by Gangubai in favour of Dashrath, was of no
consequence and Dashrath did not acquire right and title in
the suit property. It is her case that, Gangubai died intestate
in 1972 and plaintiff being her daughter, she is entitled to
succeed to the suit property being the class one heir of
Gangubai.
10. The learned Counsel, thus submits that, the
th
document dated 4 February, 1970 was not a mortgage with
a conditional sale but a sale with an option to repurchase
and therefore the document executed by Gangubai in favour
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of defendant no.1, Dashrath has not transferred any
propriety rights in the subject property in favour of
Dashrath.
11. In my view, at the first place, the appellant-
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plaintiff being not party to the contract/document dated 4
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February, 1970 or 25 January, 1971 he had no locus to
claim any rights under these two documents. At the
highest, Bhiku Narayan Gaikwad to whom the property was
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handed over by Gangubai on 4 February, 1970 had right to
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contend that the document dated 4 February, 1970 was,
not a mortgage with a conditional sale but a sale with an
option to re-purchase. However, Bhiku Narayan Gaikwad
executed a registered re-conveyance in favour of Gangubai
th
on 25 January, 1971. This re-conveyance stipulates that,
the subject property was a mortgage by Gangubai for
Rs.900/- and since Gangubai redeemed the mortgage, he
executed the re-conveyance and handed over the
possession of the suit land to Gangubai. Therefore, upon
th
reading both the documents together, I hold that, on 4
February, 1970 Gangubai had executed a mortgage with a
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conditional sale in favour of Bhiku Narayan Gaikwad.
12. It is settled law that, Section 58(c) contains
the definition of a mortgage by conditional sale. It is with
the greatest difficulty in many cases that such mortgages
can be distinguished, from sale with a condition for
repurchase. As cl (c) of s 58 indicates, the real point of
difference between the two kinds of transactions is that, in
the case of a mortgage by conditional sale, the sale is only
ostensible, whereas, in the case of an out and out sale, it is
real. The ostensible or real nature of transaction can,
however, be only determined by finding out the intention of
the parties.
13. Thus, the intention of the parties is to be
gathered for deciding the character of the document. In the
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case in hand, the document of re-conveyance dated 25
January, 1971 executed by Bhiku Narayan Gaikwad
establishes the fact that, Gangubai had mortgaged the
subject property against the mortgage money of Rs.900/-.
th
Therefore, till 25 January, 2017 the debt was subsisting
and on the payment of the mortgage money, Gangubai
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redeemed the mortgage. A mortgage by conditional sale is
essentially a mortgage and therefore it is necessary that
relation of debtor and creditors would exist between the
parties. In this class of mortgage, the mortgager ostensibly
sells the mortgage property. The word “ostensible” means
that there appears to be a sale but is not really a sale. If the
parties have interpreted it to be a sale, then of course it
cannot be a mortgage. A mortgage by conditional sale is an
ostensible sale i.e. it is excluded in the form of a sale with a
condition attached to it.
. In the case in hand, though the document dated
th
4 February, 2017 is titled otherwise, but its recitals clearly
indicates the intention that it was a mortgage by conditional
sale, in as much as, Gangubai had reserved the right to
redeem the mortgage. The expression “ lksMfoysl ” thus
speaks of intention of the parties that it was not a outright
sale but sale with an option to repurchase.
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14. That for the reasons aforesaid, on 6 May,
2017 the date on which Gangubai sold the suit property to
her son for the consideration of Rs.700/- by registered sale-
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deed was a valid sale and by virtue of it, defendant no.1
became the owner of it.
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15. In the facts aforesaid, I hold that, on 4
February, 1970 Gangubai had executed a mortgage by
conditional sale. The question is answered accordingly.
Thus, the findings recorded by the trial Court, as well as, by
the Appellate Court is consistent with the evidence on
record. The subject documents were correctly interpreted
and therefore the Appeal fails and dismissed.
16. With dismissal of Appeal, Civil Application No.
140 of 2018 does not survive. The same stands disposed of.
(SANDEEP K. SHINDE, J)
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