LexBISHWANATH PRASAD SINGH versus RAJENDRA PRASAD AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
BISHWANA TH PRASAD SfNUH
v
RAJENDRA PRASAD AND ANR.
FEBRUARY 24, 2006
B
[S.B. SINHA AND P.K. BALASUBRAMANYAN. JJ.]
Tram/er of Property Act. 18112- Ss. 58(cJ and 83- -Disposition of
property---Sale or :'vfortgaf_e by Conditional Sale- Respondents· executing
C a sale deed in favour of appellant-- Appellant aecuting an agreement of
reconveyam:e on the same day· Respondents alleKing that transaction in
effect and substance constit~te a mortgage-· Held, transaction is sule and not
mortgage.
Res judicata· -('ode rfCivil Procedure section 11 Exp/. V!Jl Transfer
D al Property Act, 18('{! Seo·1ion 83- Respondems · suil jiJr declaration that
the dee,! executed hv him conslilute usufrucruarr n111ngag.: in view <f the
agreement of renmveyance of the some day ewcurcd /iv Appellc.mt -His
application u/s 83 lo dep.1sit the money allowed Held. order permitting
respondents to d<.posit an amount al Rs. 3000 wou/J nor operate as res
judicata as thereby nu issue between the panrt:s was heard and finally
E decided.
Indian Evidence A~·t, 1882- Section 91
Best Evidence Rule--
Disposition of property--Agreemenl ufreconveyanc·e executed by the vendee
un the same day the vendor exernted sale deed -Agreement executed for a
F fixed period and terms of the agreement clearly shows that the parties
understood the same to he a deed of reconveyance and not mortgage or a
conditional sale Held, if 1he terms of any disposition of property is reduced
lo writing, no evidence is udmissihle in proof of the lams of such disposition
except the document itsell
G
Respondent filed a suit for a declaration that the transaction dated
24.6.1977, although ostensibly expressed in the shape ofa deed of sale, was
in fact a transaction of usufructuary mortgage and the same stands redeemed
u/s 12 of the Bihar Mone)' Lenders Act, 1974. They averred that they were
occupancy raiyats of the suit land. Appellant allegedly gave an advance of Rs.
3000 on respondents executing a deed of usufructuary mortgage in respect
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BISHWANATH PRASAD SINGH''· RA.IENDRA PRASAD
567
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of the suit land. However, appellant allegedly asked them to execute a deed of A
sale on ground that he did not possess any money lending license. On the
same day appellant in turn executed a registered deed of agreement whereby
and whereunder he agreed to execute a deed of reconveyance on his receipt of
the said sum of Rs. 3000 within 23 months from that day. Respondents filed
an application u/s 83 of the Transfer of Property Act, 1882 seeking permission B
to deposit Rs. 3000 which was allowed. Trial Court and first appellate court
dismissed the suit holding that deed of sale coupled with agreement of
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reconveyance on the same date did not constitute a mortgage with conditional
sale. High Court allowing the appeal held that real intention of parties was
that the transaction was to be one of mortgage. Hence an appeal to this Court.
c
Allowing the appeal, the Court
HELD: Per SB. Sinha, J :
1.1. Section 58 (c) of the Transfer of Property Act, 1882 defines
mortgage by conditional sale. A bare perusal of the said provision clearly D
shows that a mortgage by conditional sale must be evidenced by one document
whereas a sale with a condition of re-transfer may be evidenced by more than
one document. A sale with a condition of retransfer is not mortgage. It is not
a partial transfer. By reason of such a transfer all rights have been
transferred reserving only a personal right to the purchaser, and such a
personal right would be lost, unless the same is exercised within the E
stipulated time. In terms of section 91 of the Evidence Act, if the terms of any
disposition of property is reduced to writing, no evidence is admissible in proof
of the terms of such disposition of property except the document it~elf.
"
1576-C, G-H; 575-A-B]
-\
Ishwar Dass Jain (D) through Lrs. v. Sohan Lal (D) by Lrs., 12000] 1 F
SCC 434; Roop Kumar v. Mohan Thedani, (20031 6 SCC 595; Pandit
Chunchun Jha v. Sheikh Ebadat Ali and Anr., (1955] l SCR 174; Munshir
Mohammed Khan (D) Lrs. v. Sajeda Bano (Smt.) and Ors., 120001 3 SCC 536
and Umabai and Anr. v. Nilkanth Dhondiba Chavan (Dead) by Lrs. and Anr.,
(2005] 6 sec 243, refe;red to.
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Indira Kaur and Ors. v. Shea Lal Kapoor, (1988] 2 SCC 488 and Ramlal
i
and Anr. v. Phagua and Ors., 12006] l SCC 168 and Chandramani Pradhan
v. Hari Pasavat, AIR (1974) Orissa 47, distinguished.
1.2 A deed as Excerpt shown. Read the full judgment & AI analysis in Lexace.