1. The present second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein – original defendants to quash and set aside the judgement and decree dated 30/11/2000 passed by learned Joint Civil Judge (J.D.), Dakor in Regular Civil suit No.54 of 1992 as well as impugned judgement and order dated 16/04/2012 passed by learned Appellate Court i.e. learned 2nd Additional District Judge, Nadiad in Regular Civil Appeal No.115 of 2001, by which, learned Appellate Court has dismissed the said appeal preferred by the appellants herein – original defendants by confirming the judgement and decree passed by learned Trial Court for redemption of the mortgage, filed by original plaintiff.
2. The respondent herein – original plaintiff instituted Regular Civil Suit No.54 of 1992 in the Court of learned Joint Civil Judge (J.D.), Dakor against the appellants herein – original defendants for redemption of mortgage dated 23/06/1961 (Exhs.69 and 70). It was the case on behalf of the original plaintiff that the suit property was given on mortgage by conditional sale on payment of Rs.7,000/- with condition that if within 40 years mortgagor returns the amount of Rs.7,000/- to the mortgagee, the mortgagee has to return the said property/land to the mortgagor and after that mortgagor would not have any right to get back the said property/land.
3. It was the case on behalf of the original plaintiff that though within 40 years, the original plaintiff agreed to return an amount of Rs.7,000/- and ready and willing to pay the same and redeem the mortgage, the original defendants did not agree for the same and, therefore, the original plaintiff is constrained to file the suit.
The suit was resisted by the original defendants by submitting that documents produced at Exhs.69 & 70 dated 23/06/1961 were not documents for mortgage by conditional sale but they are documents of conditional sale and, therefore, there is no question of redemption of the mortgage of the said property/land. Learned Trial Court framed the necessary issues and thereafter, by judgement and decree dated 30/11/2000 decreed the suit and passed decree for redemption of mortgage and directed the original defendants to hand over peaceful and vacant possession of the suit property/land on payment of mortgage amount to the original defendants.
4. Being aggrieved by and dissatisfied with the judgement and decree dated 30/11/2000 passed by learned Joint Civil Judge (J.D.), Dakor passed in Regular Civil Suit No.54 of 1992, the appellants herein – original defendants preferred Regular Civil Appeal No.115 of 2001 and learned Appellate Court by impugned judgement and order dated 16/04/2012 passed in Regular Civil Appeal No.115 of 2001 decreeing the suit for redemption of the mortgage.
Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below, the appellants herein – original defendants have preferred the present second appeal u/s. 100 of the Code of Civil Procedure.
5. Mr.R.R.Vakil, learned advocate appearing on behalf of the appellants herein – original defendants has vehemently submitted that both the Courts below have materially erred in not properly appreciating and interpreting the documents at Exhs.69 and 70. It is further submitted that as such there was no relation of debtor and creditor between the mortgagor and mortgagee and the documents were executed on full consideration of Rs.7,000/- with all the rights of the mortgagee and the documents at Exhs.69 and 70 cannot be said to be documents for mortgage of conditional sale. That Exhs.69 and 70 are documents of conditional sale, learned Trial Court has materially erred in decreeing the suit and granting decree for redemption of the mortgage and learned Appellate Court has materially erred in confirming the same. Mr.R.R.Vakil, learned advocate appearing on behalf of the appellants herein – original defendants has heavily relied upon decision of the Hon'ble Supreme Court in the case of Tamboli Ramanlal Motilal (Decd.) By LRs. V/s. Ghanchi Chimanlal Keshavlal (Decd) By LRs. & Anr. reported in 1993(1) GLR 889.
By making above submissions and relying upon above decision, it is requested to admit/ allow the present second appeal. No other submissions have been made.
6. The present second appeal is opposed by Mr.I.A. Patel, learned advocate appearing on behalf of the respondent herein – original defendant, who is on caveat. It is submitted that in the documents at Exhs.69 & 70, it is specifically mentioned that if the mortgagor repays an amount of Rs.7,000/- to the mortgagee within 40 years, property/land be returned to the mortgagor and, therefore, no illegality has been committed by both the Courts below in holding that it was mortagage by conditional sale. Mr.I.A.Patel, learned advocate appearing on behalf of the respondent herein – original plaintiff has heavily relied upon decision of the Full Bench of this Court in the case of Kantilal M. Kadia V/s. Somabhai Dahyabhai Kadia reported in 2003(1) GLH 524. It is submitted that considering the documents at Exhs.69 and 70 and even considering the decision of the Hon'ble Supreme Court in the case of Tamboli Ramanlal Motilal (supra), the decision relied upon by learned advocate appearing on behalf of the appellants herein, it appears that it was the documents of mortgage by conditional sale and, therefore, it is submitted that no illegality has been committed by learned Trial Court in passing decree for redemption of mortgage and it is rightly confirmed by learned Appellate Court.
7. Heard learned advocates appearing on behalf of the respective parties and considered the impugned judgement and orders passed by both the Courts below and also considered the documents at Exh Nos.69 and 70, which were placed before the Court for its perusal.
8. A short question, which is posed for consideration is Whether the documents at Exhs.69 and 70 can be said to be documents of mortgage by conditional sale or documents of conditional sale with condition of retransfer? For that, conditions mentioned in documents at Exhs.69 and 70 are required to be considered. It is true that document is tilted as “Document of conditional sale”. However, it is also specifically mentioned in the said documents that the said documents are executed on condition that if the mortgagor repays entire amount of Rs.7,000/- (both the documents) within a period of 40 years, mortgagee has to return the property/land and after that period, mortgagor would not have any right to get back the said property. Considering the aforesaid specific conditions mentioned in the said documents, it appears to the Court that learned Trial Court has rightly considered the said documents as document of mortgage by conditional sale.
9. An identical question came to be considered by Full Bench of this Court in the case of Kantilal M. Kadia (supra). In the case before Full Bench of this Court also in the document, it was specifically mentioned that upon completion of 5 years, whenever mortgagor returns the amount to the mortgagee, mortgagee has to return the property to the mortgagor. Considering the decision of Hon'ble Supreme Court in the case of K.Simrathmull V/s. Nanjaligiah Gowder reported in AIR 1963 SC 1182 and other decisions of Hon'ble Supreme Court, the documents can be said to be documents of mortgage by conditional sale. It is required to be noted that in the aforesaid decision, Full Bench of this Court has also considered the decision of the Hon'ble Supreme Court rendered in the case of Tamboli Ramanlal Motilal (supra), which has been relied upon by learned advocate appearing on behalf of the appellants herein and considering the other decisions of the Larger Bench, the Full Bench has held that if specific condition is mentioned in the document, it can be said to be document of mortgage by conditional sale.
Considering the documents at Exhs.69 and 70 and conditions mentioned in the said documents as referred to hereinabove, that if the mortgagor returns the amount of Rs.7,000/- within 40 years to the mortgagee, property is required to be returned to the mortgagor. The documents at Exhs.69 and 70 are rightly considered as documents of mortgage by conditional sale and learned Trial Court has rightly passed decree for redemption of mortgage and the same is rightly confirmed by learned Appellate Court, which is not required to be interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure.
10. In view of the above and for the reasons stated hereinabove, there is no substance in the present second appeal and the same deserves to be dismissed and is accordingly dismissed.
In view of the dismissal of the main second appeal, no order in the Civil Application and the same is also accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti