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2006 (2) TMI 669

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..... fact that the term 'Bai-bil-wafa' or 'Bye- bil-wuffa/wafa' is an Arabic term which may mean a mortgage or a condition sale but the said term is not synonymous to 'Bai-ul-wafa'. In the instant case, as noticed hereinbefore, the transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property. Not only that the appellant was put in possession of the land, his name was also mutated. The question of determination of being a pure question of law, the principles of res judicata shall have no application. Therefore, the High Court, in our opinion committed a manifest error in interfering with the judgment and decree passed by the trial court as also the appellate court in exercise of its jurisdiction u/s 100 of the Civil Procedure Code. Thus, the impugned judgment of the High Court cannot be sustained. It is set aside accordingly. The appeal is allowed with cost. Counsel's fee quantified at ₹ 5,000/. - HON'BLE S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ. For the Appellant : P.S. Mishra, Sr. Adv., Tathagat Harsh Vardhan, Upendra Mishra, Dhruv Kumar Jha, Amitesh Chandra Mishra, Ravi Chandra Prakash and C.D .....

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..... ion to deposit an amount of ₹ 3,000/- By an Order dated 22.3.1979, despite an objection taken in this behalf by the appellant herein that the transaction in question was not a mortgage, the respondents were permitted to deposit the said amount. 5. It is also not in dispute that the property in question was mutated in the name of the appellant in the Revenue Records of Rights. The Trial Court, in view of the pleadings of the parties, framed the following issues : (i) Is the suit, as framed maintainable? (ii) Have the plaintiffs got cause of action for the suit? (iii) Is the sale deed dated 24.6.1977 real transaction of usufructuary mortgage deed in view of the agreement of the same day executed by the defendant and, if so, are the plaintiffs entitled to a decree as prayed for? (iv) To what relief or reliefs, if any, the plaintiffs are entitled? 6. The said suit was dismissed holding that the deed of sale dated 24.6.1977 coupled with the said agreement of reconveyance of the same date did not constitute a mortgage. It was further held that the remedy available to the respondents was only to file a suit for specific performance of the contract and as such a relief had not been a .....

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..... ijay Hansaria, learned Senior Counsel appearing on behalf of the respondents, on the other hand, supported the judgment of the High Court. It was submitted that the order dated 22.3.1979 would operate as res judicata in view of the fact that the issue as to whether the said transaction evidenced by the deed dated 24.6.1977 constituted a mortgage or a sale, had been determined thereby. 11. It is not in dispute that the deed in question was titled as a 'deed of sale'. The respondents were described as 'vendor' and the appellant as a 'vendee'. The nature of the deed was mentioned as 'Sale Deed (Kewala)'. The amount paid by the appellant to the respondents was treated to be the consideration money. In the recitals made therein the purpose of executing the deed of sale was stated to be as for repaying the debts taken by the respondents from several money lenders and it was recited that they did not have any source of income to repay the debts and no means of liquidating the debts except to sell out the said land. It was categorically stated: Therefore, vendors on their own wishes and in good mental capacity sold the property/land mentioned in column 5 afo .....

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..... which may mean a mortgage or a condition sale but the said term is not synonymous to 'Bai-ul-wafa'. In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition at page 442, it is stated: Bai-ul-wafa. There is no unanimity of opinion among the juris consults of Islam on the point whether a transaction of Bail-ul-wafa is a valid sale, a fasid sale or a mortgage. Hence, it was held that the Court is consequently, free to choose any of the opinions (of jurists) which might be conformable to the equities of the case and may carry out the real intention of the parties. It was further held that in this type of transaction, the contract between the parties is to the effect that the transferee sells to the transferee the property in question for either within a fixed period or at any undefined time, the sale would to the transferor . 16. We have noticed hereinbefore that the nature of deed was stated to be agreement (Ekrarnama), the nature of the document was not stated to be 'Bai-ul-wafa', the relevant clause whereof reads as under: Because the vendor today of this date has sold the property of this deed to the vendee through registered agreement on the Vaibulwafa conditi .....

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..... f terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the best-evidence rule . It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thayer's Preliminary Law on Evidence, p. 397 and p. 398; Phipson's Evidence, 7th Edn., p. 546; Wigmore's Evidence, p. 2406.) It has been best described by Wigmore stating that the rule is in no sense a rule of evidence but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the sub .....

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..... e is exercised within the stipulated time. 24. In Pandit Chunchun Jha v. Sheikh Ebadat Ali Anr [(1955) 1 SCR 174] this Court clearly held: We think that 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 25. Yet again in Mushir Mohammed Khan (D) Lrs. v. Sajeda Bano (Smt.) Ors. [(2000) 3 SCC 536] this Court upon construing Section 58 (c) of the Act and opined: 9-The proviso to this clause was added by Act 20 of 1929 so as to set at rest the conflict of decisions on the question whether the conditions, specially the condition relating to reconveyance contained in a separate document could be taken into consideration in finding out whether a mortgage was intended to be created by the principal deed. The legislature enacted that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale. Referring to Chunchun Jha (supra) it was held: 14-Applying the prin .....

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..... documents in question have been carefully framed in legal terminology taking into account the relevant provisions of law. The transaction also discloses the awareness of the defendant about Section 58(c)4 of the Transfer of Property Act as is evident from the fact that the reconveyance clause is not embodied in the sale deed itself. In the agreement to sell, no reference has been made to the transaction of sale though it has been executed contemporaneously. The defendant who has permitted the plaintiff to continue in possession on payment of rent equivalent to about 13= per cent interest and was evidently aware of all the dimensions of the matter would not have granted any concession or executed the agreement by way of a concession. The agreement was executed evidently because the plaintiff would not have executed the sale deed unless an agreement to sell by a contemporaneous document was also executed to enable the plaintiff to enforce specific performance within ten years. It was therefore a transaction entered into with open eyes by the defendant and there was no question of granting any concession. In the instant case, as noticed hereinbefore, the transfer is complete and not .....

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..... ossession or power relating to the mortgaged property, apply for a and receive the money, and the mortgage-deed, and all such other documents so deposited shall be delivered to the mortgagor or such other person as aforesaid. Where the mortgagee is in possession of the mortgaged property, the court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgement in writing that any right in derogation of the mortgagor's interest transferred to the mortgagee has been extinguished. 31. The provision merely permits the mortgagor to deposit the mortgage amount. Even in a case where such deposit is made, in the event the mortgagee refused to accept the deposit, the mortgagor would have no option but to institute a suit for redemption relying on the mortgage money deposited. The respondent did not file a suit for redemption. It may be that the appellant objected to the said dep .....

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..... been passed by a court having no jurisdiction therefore, and/or in a case involving pure question of law. It will also have no application in a case where the judgment is not a speaking one. 36. The question of determination of being a pure question of law, the principles of res judicata shall have no application. Therefore, the High Court, in our opinion committed a manifest error in interfering with the judgment and decree passed by the trial court as also the appellate court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. 37. For the reasons aforementioned, the impugned judgment of the High Court cannot be sustained. It is set aside accordingly. The appeal is allowed with cost. Counsel's fee quantified at ₹ 5,000/ P.K. Balasubramanyan, J. 38. I respectfully agree with the reasoning and conclusion of my learned Brother. But I feel that I ought to add a few words of my own in the light of the contentions raised. 39. Going by Section 58(c) of the Transfer of Property Act, it is clear that for an ostensible sale deed to be construed as a mortgage by conditional sale, the condition that on repayment of the consideration by the seller the buyer .....

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..... edy available to the mortgagor is to sue for redemption in terms of Section 91 of the Transfer of Property Act. 41. Section 83 is a survival from Bengal Regulation I of 1778 which enabled the mortgagor to redeem by payment into court. A corresponding right was given to the mortgagee by Bengal Regulation XVII of 1806 to make an application in the court if he intended to foreclose a mortgage by conditional sale. (See Mulla's Transfer of Property Act, 9th Edn. Page 83). It was held by the Privy Council in Forbes v. Ameeroonissa Begam 10 MIA 340 at page 350 that under the Bengal Regulation XVII of 1806, the functions of the Judge were purely ministerial. The same position was adopted by the various High Courts. In Ramakrishnaiah v. Krushi Vidyalaya Sangam: (1944) 2 ML J 284, it was held that the question of correctness of the amount could not be gone into as such an enquiry was beyond the scope of Section 83 of the Transfer of Property Act. The Court was not called upon to give any findings. This view was followed by the same Court in Govindaswami v. Bakkim. My learned Brother has referred to Chandramani Pradhan v. Hari Pasayat 1974 Ori 47. It is not necessary to multiply authoriti .....

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