9911796707
TMI Blog1987 (12) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... , Seventh Court, Alipore, District, 24 Parganas, for a declaration that a certain transaction effected by a deed of sale dated 28th February, 1968 executed by him in favour of the defendant, the Respondent No. 1 (deceased) herein, is, in substance, a loan transaction and for taking accounts under Section 36(1) of the Bengal Money-Lenders Act, 1940. For the sake of convenience, we propose to refer to the parties, namely, the original plaintiff who was the predecessor in title of the present Appellants and the Respondent No. 1 by their description in the suit. 5. The case of the plaintiff was that he was the owner of a certain lands situated at Biren Roy Road West in Mouza Sarkelatpur (commonly known as Gangarampur). This land was purchased by the plaintiff from his brother-in-law, Saral Kumar Mitra, by a deed dated March 12, 1954. In 1961 he constructed five shop rooms on this land and let out two of them to the defendant for carrying on the defendants business of running a medicine shop there. Being in need of money for diverse causes and reasons, the plaintiff was in indebted to the defendant, with whom he was in close terms, to the tune of ₹ 6,000/- upto January, 1968. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructed by him at the request of the plaintiff and the costs of construction incurred by him were agreed to be treated as a loan given by him to the plaintiff to be adjusted against the future rent. According to the defendant, the suit property comprised mainly of a tank and was sold and conveyed to him by the plaintiff by a deed of out and out sale for a sum of ₹ 9,000/- and the possession of the same delivered to the defendant. The defendant totally denied that there was any question of executing and agreement for reconveyance. 6. Both the parties led evidence before the Trial Court and the Trial Court on consideration of the evidence came to the conclusion that the shop rooms referred to in the previous paragraph were constructed by the defendant, that he was realizing rents from the tenants of the shop rooms, that certain construction which was made on the suit land was made by the defendant on his own account and that the suit transaction was not a loan transaction but was a transaction of a clear sale. The Trial Court also held that after the sale deed was executed the possession of the suit property was with the defendant. The Trial Court dismissed the suit of the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that the story put forward by the plaintiff was not acceptable and the Court preferred to believe the case of the defendant. The Court pointed that it was clear that the plaintiff was a man of having considerable properties and could expected to have worldly wisdom. In these circumstances, it was not possible to believe that if the transaction was really one of loan and the document of sale was to be excited voluntarily of even otherwise by the plaintiff merely to create security in the land and on the footing that on the same day the defendant would execute an agreement for reconveyance, it was not possible to believe that the plaintiff would have executed and got registered the deed of sale on 28th February, 1968 although the defendant failed to execute the agreement of reconveyance or even to turn up at the office of the Registrar. The High Court observed as follows: After carefully considering the entire evidence we have doubt that the plaintiff executed the disputed conveyance, Ext. Y which was meant to be a deed of out and out sale and it was not a transaction of mortgage with an agreement for reconveyance. In view of these conclusions the appeal of the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to rely. 9. It was submitted by Mr. Sinha that one of the main indications which would show whether the transaction in question was one of loan and the document of sale was executed by way of security or that the transaction was an out sale and out of the property is whether the consideration appearing in the document appears to be too low. If the consideration is too low, it would indicate that the transaction could not have been one of sale. If the consideration is fair or reasonable, it would indicate that the transaction was one of sale. The other indication of a sale would be that the possession after the transaction would pass to the vendee and not be retained with the vendor in the absence of special circumstances. As far as the valuation of the property is concerned, the Trial Court after considering the evidence of instances led before it came to a definite conclusion that at the time when the document of sale was admittedly executed, it could not be said that the valuation of the property at ₹ 9,000/- was too low. As against this, all that Mr. Sinha could point out was that the plaintiff in his evidence has stated that the valuation of the property must be more ..... X X X X Extracts X X X X X X X X Extracts X X X X
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