LexSHRI BHASKAR WAMAN JOSHI (DECEASED) AND OTHERS versus SHRI NARAYAN RAMBILAS AGARWAL (DECEASED) AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
s.c.:R. SUPREM:ffi COURT REPORfS provisions is different. But as I have said above the evidence to support the plea under s. 197 and to estab- lish the requisite nexus between the act done. by Henderson and the scope and extent of his dutie.s is lacking and therefore the applicability of s. 197 to the facts of the present case cannot be held to have been proved. In my opinion the foundation has not been laid for holding that sanction under s. 197 was necessary in the instant case. I therefore agree that the appeals be dismissed. By court.-The petitioner's Criminal Appeals Nos. 100 to 105of1954 having been dismissed and the conviction of the petitioner having been upheld, this petition is dismissed. SHRI BHASKAR WAMAN JOSHI (deceased) AND OTHERS v. SHRI NARAYAN RAMBILAS AGARWAL (deceased) AND OTHERS (P. B. GAJENDRAGADKAR and K. SuBBA RAO and J. c. SHAH, JJ.) M ortgage-Deed-Constr-ucti:on--Mortgage by conditional sale -Sale with a claitse jo'r repurchase-Distinction between-Intention of the parties-Contemporaneous conduct- -Su.rrounding circum- stances-Time fixed for reconveyance-Whether essrnce of the contract. A deed dated September ro, r93r, described as a sale ,deed, recited that the transferors were indebted and that to discharge the liability. three items of immoveable properties, described in the deed and separately valued, were conveyed in full ownership and that possession was delivered to the transferees. The deed further provided, inter alia (r) that if the transferors demanded reconveyance of any or all of the items of the properties within 5 years, the transferees shall reconvey to them at their expense , , for the price mentioned in the deed, (2) that if within four years and six months the transferees dig not exercise ·the right of reconveyance as aforesaid and the transferees did not desire to retain all or any of the properties, they had a right to get back the amount of consideration of the deed and return all the three or any of the properties in the condition. in, which by vis major, Go~el'nment action or any reason whatsoever they may be, and I959 Satwant Singh v. The State of Punjab Kapur]. I959 November 3 ils SUPRE:vIE COURT REPOR.TS [1960 (2)] I959 (3) that if the transferors failed to comply with the transferees' request to take back the properties a breach of agreement of Bhaskar rvanian reconveyance rendering the transferors liable to pay damages Joshi shall be committed. There was also a clause that the transferors v. shall lose the right of getting a reconveyance after the expiry of l'larayan Ranibilas the period of 5 years. On the same date as the deed of sale the Agarwal transferors executed an agreement by \Vhich they undertook to pay the difference between the net rent to be recovered by the transferees from the properties and interest at the rate of nine per cent. on the price till the date of reconveyance. In a .suit for redemption brought by the transferors on August 26, r943, on the footing that the deed dated September ro, 193 r, was a mort- gage by conditional sale, the transferees contended that by the transaction an absolute conveyance of the properties \Vas intended and that the conveyance was subject to a condition of repurchase to be exercised \vithin a period of five years from the date of the deed. The evidence showed that the price paid for the proper- ties under the deed was wholly inadequate. Held, that the question whether a transaction ostensibly of sale n1ay be regarded as a mortgage is one of intention of the parties \vhich has to be ascertained fro1n the provisions of the deed vie\ved in the light of the surrounding circun1stances. In a sale coupled \vith an agreen1ent to rcconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed, but the sale is subject fo an obligation to retransfer the property within the period specified. In a mortgage by conditional sale a relation of debtor and creditor is created, the transfer being a security for the debt. Oral evidence of intention is not admissible in interpreting the convenants of the deed but evidence to explain or even contradict the recitals as distinguished from the terms of the document may be given. Evidence of contemporaneous conduct is admissible as a surrounding circum- stance, but evidence as to subsequent conduct of the parties is inadmissible. Narasingerji Gyangerji v. Panug
Excerpt shown. Read the full judgment & AI analysis in Lexace.