TaxTMI 
TaxTMI 
2004 (12) TMI 739
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....ction arose to the plaintiff on 29.12.1983 when the defendant represented that she had become absolute owner of this property. The plaintiff was and is still ready to pay the mortgage money and thus the plaintiff is entitled to a decree of redemption of the mortgaged property with possession of the same and the defendant should be restrained not to make any alteration in the said property. 3. The defendant vide written statement submitted on 25.5.1985 pleaded that the registered mortgage-deed was executed in compliance of earlier agreement of conditional sale dated 19.4.1976 and it was agreed upon between the parties that the defendant would become absolute owner of this property after expiry of a period of seven years. Since the plaintiff did not pay the said amount of Rs. 16,999/- within a prescribed period of seven years, the defendant became the absolute owner of the same and now the plaintiff has no right to redeem. It was also pleaded that it was not necessary for her to obtain any decree of foreclosure against the plaintiff as the property was not mortgaged but sold to her by conditional sale. It was also pleaded that the plaintiff applied and obtained permission of the c....
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....rity by the plaintiff for according necessary permission required Under Section 27 of the Act 1976. Ex. 2, Ex. 2/1, Ex. 2/2 are the applications in prescribed proforma under Sub-section (2) of Section 27 of the Act. Ex. 3 is the affidavit of the plaintiff in support of the above application. Ex. 6 to Ex. 9 are the applications submitted to the competent authority by the plaintiff on 15.7.1977 and Ex. 10 is the affidavit in support of these applications. Ex.A. 8, Ex. 11 alongwith affidavits, Ex.A-9 and Ex.A. 10 are also the applications submitted by the plaintiff for the said permission. Most of the applications are copies of the same. The competent authority vide order dated 12.8.1977 granted the required permission which has been marked as Ex. A6. Thereafter pursuant to Ex. A.2 and the permission accorded by the competent authority. Ex.4 was got executed and registered on 16.11.1978. Ex.16 is the copy f the plaint field by the present defendant against the present plaintiff and one Shanker Lal on 29.12.1983 for permanent injunction and Ex.15 is the copy of the statement recorded in that civil suit of 1983. It is significant to say here that the execution of the above referred docu....
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....rents and profits accruing from the property (or any part of such rents and profits and to appropriate the same) in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest (or) partly in payment of the mortgage-money, the transaction is called an usufructuary mortgagee and the mortgagee an usufructuary mortgagee. (e) English mortgage.- Where the mortgagor binds himself to reply the mortgage-money on a certain date, the transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage. (f) Mortgage by deposit of title-deeds. - Where a person in any of the following towns, namely, the towns of Calcutta, Madras (and Bombay) and in any other town which the (State Government concerned) may, by Notification in the official gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds. (g) Anomalous mortgage - A mortgage which ....
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.... part of the amount remaining due on 'the mortgage, except (only) where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor. 8. I have perused the judgments of the two courts below. The Trial Court held that Ex.4 is registered mortgage-deed with conditional sale and its nature is clear to prove that the property was mortgaged and not sold; that the value of the property at the relevant time was Rs. 60,000/- while it was mortgaged only for a sum of Rs. 16,999/-and this fact also supports the plaintiff's case that it was a case of mortgage and not of sale; that vide Ex.4 it was for the plaintiff to pay the house tax for seven years-mortgage period and to get the house repaired as and when required; that the defendant herself raised a demand of Rs. 6000/- spent in repair of this house and also advanced a sum of Rs. 3000/- as loan on 3.5.1982 on interest against this very property and that the defendant herself admitted in her statement Ex. 15 recorded in the civil suit marked as Ex.16 that this property was mortgaged with her by the plaintiff. On the basis of the above findings, it ....
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....pon Chunchun Jha v. Ebadat AH AIR 1954 SC 345) wherein it was held that the question whether a given transaction is a mortgage by conditional sale or a sale out right with a condition of repurchase is a vexed one and must e decided on its own facts. In such cases the intention of the parties is the determining factor. Similar view was taken in Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal Satyadeo v. Ramsarup and Swaroop Chand v. Kanhaiya Lal and Ors. (1988(1) RLR 278). 11. It was also argued by Mr. Surana that the admission in the best evidence and the plaintiff in various documents admitted this fact that this property was sold to the defendant and the admission of the plaintiff about mortgage is clear as recorded in the order-sheet dated 12.8, 1977 by the competent authority which is marked Ex.A. 6. Reliance is placed upon Narayan v. Gopal wherein it was held that an admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Similar view was taken in Pooranmal v. Ganga Sagar (1988( 1) RLR 506) Tamboli R. Motilal v. Ghanchi C. Keshavlal wherein it was al....
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.... become the owner of the property, without a suit for foreclosure, and it is always open to a mortgagor to pay up and avoid foreclosure at any time before there is a final decree for foreclosure. In Pomal Kanji Govindji & and Ors. v. Vrajlal Karsandas Purohit and Ors. AIR 1989 SC 436) it was held that right of redemption cannot be taken away by the contract and a clog on the equity of redemption is unjust and unequitable. Similar view was taken in Gangadhar v. Shankar Lal and Ors. (AIR 1958 SC 770) also. On the question of nature of the document as to whether it is a mortgage deed or sale deed. Mr. Agarwal has placed reliance upon Chunchun Jha v. Edabat All and Anr. (AIR 1954 SC 345) and Bhaskar v. Shrinarayan Rambila (AIR 1966 SC 301). 13. Now the submissions of Mr. Surana with regard to the documentary evidence are taken up Ex.A,2 is an agreement dated 19.4.1976. According to Mr. Surana, this property was earlier mortgaged for a sum of Rs. 9,999/- with one Gyarsi Lal on 22.7.1973 and as per contents at page 3 of this document, it was agreed upon to pay interest at the rate specified in this document but there is not such clause to pay any interest here and it shows that the tr....
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....rana means transfer of title but this submission can not be accepted at all. According to Section .58 of Act 1882, the word "mortgage" has been defined as transfer of an interest in specific immovable property for the purpose of securing the payment of money. Therefore, the word "transfer" in Ex.1 does not show any intention of the plaintiff to transfer the title of the disputed property. In the last para of this application it is mentioned that the "transfer of building" will be for seven years on account of conditional sale so Smt. Shanti Devi. Although the word "mortgage" is not mentioned in Ex.1 but the term "transfer" is with reference to conditional sale for a period of seven years. Similar terminology has been used in all the remaining applications and the affidavits submitted before the competent authority for permission Under Section 27 of the Act, 1976. Thus, on the basis of the these documents, no such conclusion can be drawn that the transaction in question was that of sale and not of mortgage with conditional sale. As stated hereinabove, Ex.A. 6 is the order-sheet recorded by the competent authority on 12.8.1977. Vide this order the competent authority granted permissi....
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....n this document that the mortgagee would have a right to obtain a decree of foreclosure. It was also agreed upon that from the period of mortgage, the plaintiff would pay be house tax as well as the would get this house repaired whenever required to do so. This property has been specified as mortgaged property as page 6 of this document. At page 9 also it is specifically mentioned that a sum of Rs. 15,000/- as mortgaged money has already been received by the plaintiff from the defendant and the remaining amount has been received by the plaintiff on the date of execution of this document. Thus the intention of the parties is quite clear that the plaintiff mortgaged this property with conditional sale for a period of seven years and the defendant advanced a sum of Rs. 16,999/- to the plaintiff and the plaintiff got a right to redeem this property by making the payment of this mortgaged money within a period of seven years as agreed upon. The submission of Mr. Surana that this period of seven years is to be counted from 19.4.1976, the date of the execution of Ex.A.2 can not be accepted at all in view of the Provisions of Section 59 of the Act 1882, which provides that where the princi....