9911796707
TMI Blog1984 (2) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the deed of sale. 3. It has been alleged by the plaintiff that she is the sole heiress and legal representative of her late father Tara Pada Pal who died on 2nd May. 1971. Her father owned the properties described in the schedule to the plaint. After the death of the plaintiff's father the plaintiff allegedly had been in possession of the properties in her own right a.s legal heiress through the Bhagidar, the pro forma defendant No. 2. The said Bhagidar was inducted into the land in dispute for cultivation of the suit land and was in possession of the land in suit as Bhagidar since the time of the plaintiff's father. It has further been alleged that the defendant No. 1 has close relationship with the plaintiff's father who secured a loan of ₹ 800/- from the defendant No. 1 by means of an ostensible deed of sale for ₹ 1,200/- which included interest of ₹ 400/- for 2) years at the rate of 20% per annum. It has also been alleged in the plaint that the value of the suit property would be around ₹ 3,000/-. The said deed was executed and registered on 9th December, 1968 by the plaintiff's father in favour of the defendant No. 1 in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. The said sum was kept in deposit with one Gangadhar Dey. 5. The learned Munsif found that ₹ 1,000/- was paid by the defendant No. 1 to the plaintiff's father at the time of the impugned transaction and not ₹ 800/- as alleged by the plaintiff. He also found that no repayment as claimed by the plaintiff was made by the plaintiff to defendant No. 1. The learned Munsif came to the finding that the transaction in question is a loan transaction on the basis of the market value of the property, which according to him, too low and on the evidence of the pro forma Defendant No. 2 who said that even after the transaction he delivered share of produce to plaintiff's father. The learned Munsif, accordingly, decreed the suit. 6. Being aggrieved by the said Judgment and Decree, the defendant No. 1 preferred an appeal before the learned Sub-Judge. The plaintiff also preferred a cross-appeal challenging the findings of the learned Munsif regarding the amount of money advanced and the repayment of dismissed on the ground that it was preferred beyond time. 7. The learned Sub-Judge held that the present suit was not a suit under the Bengal Money Lenders Act. The suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal possession of the bargadar and not in khas possession of the vendor which affected the market value of the suit property. Having considered the evidence he was unable to agree with the findings of the learned Munsif that the market value of the suit property would be more than ₹ 1200/-. So far as the question of possession was concerned, the learned Sub-Judge held that the plaintiff's father was not in actual physical possession of the suit property. He was in constructive possession through the bargadar. Thus the question of possession would not be of much importance in the case. He held that if the vendor was in constructive possession of the land through bargadar at the time of sale, which is the case of the plaintiff and managed to get share of produce of the land from the bargadar even after the sale, it cannot extinguish the title of the vendee who required the land from the said vendor for proper consideration. Having considered all the facts and circumstances of the case and materials on record as aforesaid, the learned Sub-Judge came to the conclusion that the transaction in question was an out and out sale and not a loan transaction in substance. He, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the present suit is a suit under the Bengal Money Lenders Act, 19,40 (hereinafter referred to as the said Act). Section 36(1) of the said Act empowers the Court to re-open a decree in any suit to which the Act applies or in any suit brought by a borrower for relief under the Section, to re-open the transaction whether the suit has been heard ex parte or otherwise. Nowhere in Section 36, it is provided that a fixed court fee of Re. 1 is to be paid for initiating proceeding under Section 36 of the said Act. Section 38 provides that any borrower may make any application at any time to a Court which would have .jurisdiction to entertain suit by the lender for the recovery of the principal and interest of a loan before or after the commencement of the said Art for taking accounts and for declaring amount due to the lender. Such application shall be in the prescribed form and shall be accompanied by a fee of one rupee and on receipt of such application the Court shall cause a notice thereon to be served on the lender. The Court shall thereafter take an account of the transaction between the parties and declare the amount, if any. due and payable but not due by the borrower to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hstanding anything contained in the Evidence Act, 1872, (I of 1872). evidence adduced by a borrower in a suit to which this Act applies or a suit brought by a borrower for relief under Section 36 or in any criminal proceedings under Section 41 or Section 42, of any oral agreement or statement contradicting, varying, adding to or subtracting from the terms of any document creating or witnessing a loan shall be admitted. 14. Sub-section (6) of Section 40 of the said Act overrides the operation of Section 92 of the Evidence Act in a suit under the Bengal Money Lenders Act. The effect of Sub-section (6) is that in a suit governed by the Bengal Money Lenders Act the borrower may adduce oral evidence of any agreement, statement contradicting, varying, adding to or subtracting from the terms of any document witnessing a loan. It is only when in a suit where the Bengal Money Lenders Act applies a document creating or witnessing a loan comes before the Court for consideration, a borrower can lead evidence of oral agreement or statement contradicting, varying, adding to or subtracting from the terms thereof. Sub-section (6) of Section 40 may not come to the rescue of the plaintiff unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only the transaction is to be treated as a mortgage by conditional sale. The impugned document does not show that the loan was obtained by the alleged borrower. There is a no intrinsic evidence in the document itself to spell out a loan nor does the document purport to show that any loan has been secured by any mortgage. A sale with a condition of re-transfer is not a mortgage, for the relationship of the debtor and creditor does not subsist and there is no debt for which the transfer is a security. 20. The effect of proviso to Section 58(c) of the Transfer of Property Act is that if the condition of re-transfer is not embodied in the document which effects or purports to effect the sale, the transaction will not be regarded as a mortgage. Section 37A. of the Bengal Money Lenders Act overrides the said proviso. 21. Mr. Dilip Dhar, learned Advocate appearing for the respondent, has relied on the decision in the case of Chunchun Jha v. Ebadat All reported in [1955]1SCR174 , in support of his contention that since the alleged stipulation for reconveyance did not contain in one document there cannot be a mortgage by conditional sale. The Supreme Court in the said case observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. The next contention of Mr. Mullick is that in deciding the question whether the impugned transaction is a mortgage by conditional sale or sale outright, the Court should find out the intention of the parties. It is no doubt true that the distinction between the said two types of transaction is purely one of intention. Unless the relationship of debtor and creditor is intended to subsist, there cannot be any mortgage. Oral evidence cannot be admitted to prove the intention of the parties. Section 92 of the Evidence Act provides that no evidence of any oral agreement or statement can be admitted as between the parties to any such instrument or their representatives in interest for the purpose of varying or adding to, or subtracting from its terms subject to the exceptions contained in several provisions of Section 92 of the Evidence Act. The Supreme Court in the case of Chunchun Jha v. Ebadat Ali [1955]1SCR174 (supra) observed as follows (Para 6):-- Where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tests laid down by judicial pronouncements. The tests which are relevant to determine the question whether the giving transaction is loan in substance or a sale outright with a condition to re-purchase are many. He has relied on a decision of this Court in the case of Chhabi Bari v. Debendra Nath Das, reported in AIR1980Cal16 . However, the Supreme Court in the case of Chunchun Jha v. Ebadnt Ali [1955]1SCR174 (supra) has observed as follows :-- We think that this is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts. 27. The following tests have, however, been applied : (1) the existence of a debt; (2) the period of repayment, a short period being indicative of a sale, and a long period of a mortgage; but the fact that time was made the essence of the contract to re-purchase is not decisive; (3) the continuance of the grantor in possession indicates a mortgage; (4) a stipulation for the payment of interest on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter briefly : The plaintiff No. 1 was the (sic) of Satish Chandra Sett and the plaintiff No. 2 was the son of Satish Chandra Sett. Satish Chandra Sett borrowed from one Provash Chandra Dutt, the defendant No. 1 in the said suit, various sum of money from time to time. On the 5th of August, 1958 Satish Chandra executed a Deed of Mortgage in favour of Provash Chandra. Dutt for a sum of ₹ 10,000/- in respect of the premises No. 21/1A, Beadon Street, Calcutta, Satish Chandra required further loan for the marriage of his daughters. It is the case of the plaintiff in that suit that when Satish approached Provash for further advance for the marriage of his daughter, Provash insisted on having a conveyance in Ms favour in respect of the said premises No. 21/1A, Beadon Street for circumventing the provision of Bengal Money Lenders Act. It has been alleged that on the 12th of March 1941 Satish Chandra Sett executed a conveyance in favour of Provash Chandra Dutt which has been challenged in that suit on the basis of that agreement and understanding that the said document would not be acted upon and would not be operative and upon the amount advanced being repaid to Provash Chand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge was right in holding that the evidence of Bargadar or Bhagidar should be considered in the light of other facts and circumstances. Fact remains that there was a dispute between the defendant no. 1 and defendant No. 2 with regard to the share of produce which was settled upon the intervention of the villagers. 32. Next comes the question of valuation of the property. In Sailabati Sett's case (supra), valuation of the properly conveyed was not taken into consideration. In any event, the criticism that the consideration set out in the sale deed is much below the market value, is not justified. The learned Munsif, on the basis of 3 (three) sale deeds relied on by the plaintiff, came to the conclusion that the reasonable market price of the suit property at the material time should have been much more than ₹ 1200/-. He did not find out that was the market value. The learned Subordinate Judge gave reasons for differing with the learned Munsif on this issue. The 3 (three) sale deeds relied on in support of the contention that the market value was more than ₹ 1200/- at the material time, if analysed, would reveal that there would not be any appreciable difference in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
