LexRAMVILAS (DEAD) THR. LRS. & ANR. versus KARIM KHAN & ANR.
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(2016] 9 S.C.R. 742 A RAMVILAS (DEAD) THR. LRS. & ANR. .. v. KARIM KHAN & ANR. (Civil Appeal No. 2078 of2008) B DECEMBER 01, 2016 (R. K. AGRAWAL AND R. BANUMATIII, JJ.) Mortgage - Mortgage by conditional sale - When not - A transaction, though, ostensibly of sale when can be regarded.as c mortgage - Intention of the parties to be gatheli!d from the language of the deed interpli!ted in the light of surroundi11g circumstances - Whether the sale deed i11 question, I;xhibit D/1 executed i11 favour of appella111s-defendants was 011ly a mortgage as a security for repayment of loa11 taken by respo11dent-plai11tiff and it was 11ever the intelllion of parties to sell the land - Held: I11 Exhibit D/1 Sale • D Deed, 110 co11ditfon is incorporated illdicati11g that it would co11Slitute mortgage by co11ditional sale - Exhibit DI 1 Sale Deed was executed only as a security for the loan and it was never the intention of the parties lo convey the suit property - Since ihe 1st respondelll- plaintiff paid back the loan amount as is evident from Agreement- E Exhibit P/2, Courts below rightly recorded concurrent findings of fact that Exhibit D/1 Sale Deed is not binding on the 1st respondent- plaintiff - Inadequacy of sale consideration yet another circumstance to indicate that the 1st respondentcplaintiff could not have intended to sell the property to appellants-defendants - Transfer of Properry Act, 1882 - s.58(e). F Dismissin2 the appeal, the Court HELD: 1.1 In Exhibit D/1 Sale Deed, no condition was inc~rporated indicating that it would constitute mortgage by . conditional sale. It was clear that the 1st respondent-plaintiff ' G had never intended to sell the property to the appellants- defendants. As rightly pointed out by the Courts below, in Exhibit P/1 Agreement dated 14.06.1972, it was clearly stated that if 1st respondent-plaintiff paid back Rs.5000/- by 14.06.1973, then the Sale Deed would be cancelled and 1st respondent-plaintiff would get back the land sold to the appellants-defendants. As held by H 742 RAMVILAS (DEAD) THR. LRS. & ANR. v. KARIM KHAN & ANR. the Courts below, had it been the intention of the parties to sell the property, the parties wouhl not have agreed for return of the land on payment of Rs.5000/- by 14.06.1973. (Para 7)(747-C-E] 1.2 The Courts below had also recorded a concurrent finding of fact that Exhibit D/1 Sale Deed was executed only as a security for the loan and it was never the intention of the 1st respondent- plaintiff to convey the suit property. Since 1st respondent-plaintiff had paid back the loan amount i.e. Rs.6,700/- as is evident from the subsequent Agreement Exhibit P/2 dated 05.06.1974, the Courts below rightly recorded the concurrent findinps of fact that Exhibit D/1 Sale Deed was not binding on the 1 s respondcnt- plaintiff. Once repayment was made, the 1st respondent-plaintiff was entitled to the declaration as prayed for. [Para 10)(748-E, F] 1.3 The inadequacy of the sale consideration stated in Exhibit D/1 Sale Deed was yet another circumstance to indicate that the 1st respondent-plaintiff could not have intended to sell the property to the appellants-defendants. (Para 11)(749-A] Bhaskar Waman Joshi (D) and Ors. v. Shrinarayan Rambilas Agarwal (DJ and Ors. AIR 1960 SC 301 : 1960 SCR 117 - relied on. 743 A B c D Bishwanath Prasad Singh i: Rajendra Prasad and Am: E (2006) 4 SCC 432 : 2006 (2) SCR 566; Raj Kishore (Dead) by LRs. v. Prem Singh and Ors. (2011) 1 SCC 657 : 2010 (14) SCR 1019; Gauri Shankar Prasad cmd Ors. v. Brahma Nand Singh (2008) 8 SCC 287 : 2008 (10) SCR 839 - referred to. Case Law Reference 20Q~ (2) SCR 566 referred to ParaJ 2008 (10) SCR 839 referred to Para3 1960SCR117 relied on Paras 2010 (14) SCR 1019 referred to Paras CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2078 of 2008. From the Judgment and Order dated 22.06.2005 of the High Court F G H 0 744 ·SUPREME COURT REPORTS [2016] 9 S.C.R. A of Madhya Pradesh;-Bench at Gwalior, in Second Appeal No .. 374.of B 1998. ., . ,., •. , . . . . .. Pune~t Jain; Manu M'atieshwari, Ms. Chhay~ Kirti, Abhinav Gupta and Ms. Pratibha, Advs. for the appellants. Raj esh, A.dv. for the· respo1ident: · · .. ''-··-···,•,.--.: -~.;~ ,:,";' !":< ~- ,.,Th~ Judgment of the Court.\vas_delivered by . . ... • · R. BANUMATHi;.J. I. The present appeal arises· out of the judgment of the High Court of Judicature of Madhya Prad~sh; J
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