The appeal has been preferred by the plaintiff in the suit. The suit has been filed in O.S.No.23 of 1990 on the file of the Sub Court, Thanjavur seeking for the relief of declaration that the sale deed executed on 07.10.1983 is void and illegal and to set aside the same with the alternative plea to direct the third defendant to re-convey the suit property on receiving the amount as mentioned in the plaint, if the Court comes to the conclusion that the sale deed dated 07.10.1983 is genuine and valid.
2. The case of the plaintiff in a nutshell is extracted hereunder:-
The suit property belongs to the plaintiff. The first defendant is the father of the defendants 2 and 3. The plaintiff has requested the first defendant for a loan. Since the defendants have insisted security for the grant of loan, the plaintiff agreed to execute a mortgage for a sum of Rs.80,000/-. Even though, the mortgage has been executed for a sum of Rs.80,000/-, a sum of Rs.65,000/- alone was paid and the remaining sum of Rs.15,000/- has not been paid. In view of the pending litigations before the High Court and other commitments, the plaintiff was made to seek additional loans from the defendants. Thereafter, the plaintiff has executed the second mortgage for a sum of Rs.45,000/-. The plaintiff was so desperate that she was prepared to sign any document to secure the required sum. The plaintiff was asked to sign in the place indicated by the defendants in the document and printed papers on 07.10.1983. Thinking that the said document is only a registered mortgage, the content of the documents were not read by the plaintiff and the same was signed by the plaintiff. The defendants paid only a sum of Rs.25,000/- and promised to pay the balance amount thereafter. However, the defendants have not paid the amount promised by them. The defendants also started behaving badly with the plaintiff on 01.04.1984. Hence, the plaintiff grew suspicions on the act of the defendants and applied for the documents of the sale deed dated 07.10.1983. The plaintiff was startled to note that the defendants have created the sale deed of plaintiff's property. A physical verification of the said document would show that the sale deed dated 07.10.1983 could not have been voluntarily executed. The defendants had exploited the innocence of the plaintiff and have taken advantage of the trust and confidence reinforced on them. The defendants also collected the rent from the tenants in view of interest. The plaintiff never intended to sell the property. The document dated 07.10.1983 is non-est in law. The plaintiff came to know about the fraud played by the defendants only after seeing the copy of the document of the sale deed dated 07.10.1983 on 04.04.1984. The recitals of the documents dated 07.10.1983 are fictitious and liable to be set aside as void and illegal. The mediators of both parties on 06.04.1984 wanted the defendants to receive back the amount and cancel the fraudulent document. Since the defendants did not agree for the same, the plaintiff is constrained to file the suit for setting aside the mortgage deed with the alternative prayer. In view of the fact that all the defendants had jointly committed the fraud together, the defendants 1 and 2 have been made as parties. Hence, the suit has to be decreed as prayed for.
3. The case of the defendants 1 to 3 is as follows:-
It is absolutely wrong to state that the plaintiff used to sign any document given by the defendants and that the plaintiff has been under constant pressure and difficulties. The letters written by Vibhuthi Veeramuthusamy and other letters signed by the plaintiff would clearly prove the said fact. It is only at the instance of Vibhuthi Veeramuthusamy, the first defendant was pleased to give the loan on security. The said Vibhuthi Veeramuthusamy is the care taker and custodian of the plaintiff. The said person, Vibhuthi Veeramuthusamy has arranged for the execution of the mortgage deed of the plaintiff in his room on 31.05.1983, which was duly registered by the Registrar. Out of the said amount of Rs.45,000/- mentioned therein, the plaintiff has already got Rs.15,000/- and the balance amount of Rs.30,000/- was paid to the plaintiff by the first defendant at the time of registration on 31.05.1983. Since the plaintiff urgently required further loan, the third defendant paid Rs.10,000/- on 13.06.1983 and Rs.5,000/- on 15.06.1983. Since the plaintiff required a further loan excluding Rs.10,000/- received from the defendants, the plaintiff accepted to register a mortgage deed for a sum of Rs.80,000/-. The total consideration of Rs.80,000/- was duly passed on to the plaintiff by adjusting the earlier simple mortgage for a sum of Rs.45,000/-. It is not true that the plaintiff has not been paid the balance amount of Rs.15,000/-.
4. In order to meet the present demands of the plaintiff, the care taker of the plaintiff Mr.Vibhuthi Veeramuthusamy approached the defendants for further financial help. The defendants declined to pay any further loan. Therefore, the plaintiff and her care taker voluntarily decided to sell the suit property on condition to repurchase the same, within six months time from the date of the sale deed. The third defendant had agreed to purchase the same subject to the condition of repurchase, within a period of six months from the date of the sale deed. The price was fixed at Rs.25,00,000/- by mutual agreement as per the terms of the agreement. If the plaintiff fails to pay the said amount, within six months from the date of the sale deed, then the sale would become absolute and the plaintiff would have no right to get re-conveyance as the condition works itself out. The recitals clearly states that the time is the essence of the contract.
5. As per the said agreement, the earlier amount of Rs.80,000/- was duly adjusted. The third defendant paid the sum of Rs.20,000/- to the plaintiff on 07.10.1983, which is the date of execution of the sale deed and the balance of Rs.20,000/- was paid before the Registrar at the time of registration on 08.10.1983 at Room No.3, Raja Rest House, Thanjavur, where the plaintiff and her care taker Vibhuthi Veeramuthusamy were staying. The said papers were duly signed and the same was endorsed by the Registrar and attested by other persons. The attestors and scribe are the men of the plaintiff. At present, the plaintiff and her daughter are living along with Vibhuthi Veeramuthusamy in the same place in Srirangam, Trichy District.
6. It is not true that the defendants want to keep the transactions in utmost secrecy. If that is the case, the documents would have been executed in the house of the defendants. The very fact that the plaintiff has filed the suit as Informa Pauperis itself would show that she is not ready and willing to repurchase the suit property. It is not true that the plaintiff has been asked to sign the document without allowing her to know the contents. It is also not true that she has signed the document thinking the same as mortgage deed. Further, it is false to state that the plaintiff has not received the sum of Rs.20,000/-. The plaintiff has been facing a number of litigations and she has been assisted by Vibhuthi Veeramuthusamy, who is very well conversant with all the Court proceedings. The plaintiff would not do anything without his consent or advice. It is not true that the defendants have played fraud on the plaintiff. The plaintiff is never ready and willing to repurchase since she has no funds. It is not true that the defendants had played fraud on the plaintiff.
7. The original sale deed was duly read over to all the parties. The very endorsement made by the Sub Registrar in the sale deed itself would prove the truth of the transactions. There is no mediations between the parties as alleged by the plaintiff. Even in the plaint, the plaintiff has not claimed that she is ready and willing to pay the amount, since she has challenged the very sale deed, she cannot seek the relief based upon the same. The alternative plea sought for is not maintainable in facts or on law.
8. The relief sought for seeking declaration and specific performance cannot be given, since the plaintiff has not come to the Court with clean hands. If she had funds, she would not have filed the suit as Informa Pauperis. The above said facts itself would show that she has no funds to repurchase the said property. The suit has been filed at the instance of the plaintiff's custodian and care taker Vibhuthi Veeramuthusamy. The third defendant has spent considerable amount in developing the building. The suit is liable to be dismissed for miss-joinder of parties as defendants 1 & 2 are not necessary and proper parties. Hence, the suit is liable to be dismissed.
9. Before the Court below, on the side of the plaintiff, two witnesses have been examined. P.W.1 is the plaintiff himself and P.W.2 is the attestor of the document. The defendants examined three witnesses. D.W.1 is the third defendant. D.W.2 is the second defendant. D.W.3 is the Sub-Registrar. On behalf of the plaintiff, Exs.A1 to A9 have been marked. On the side of the defendants, Exs.B1 to B22 have been marked. Ex.A2 is the mortgage deed executed by the plaintiff in favour of the first defendant. Ex.A3 is the mortgage deed executed by the plaintiff in favour of the third defendant and Ex.A1 is the conditional sale deed. The defendants also marked the very same documents apart from the letters written by Vibhuthi Veeramuthusamy. The plaintiff has examined herself as P.W.1 stating that the sale deed has been executed by playing fraud on her. However in her further examination, she had accepted the fact that she received the entire consideration mentioned in Ex.A1. P.W.2 is a scribe, who says that the document has not been read over to the plaintiff or to P.W.2. D.W.1 and 2 have stated what was executed is the conditional sale deed and they also stated that the plaintiff has executed the said document voluntarily. P.W.3 is the Sub-Registrar, who speaks about the execution of the documents. The trial Court after considering the materials available on record has dismissed the suit by holding that Ex.A1 is true and genuine, having been executed voluntarily by the plaintiff. The trial Court also held that the said document has been executed by the plaintiff in the presence of the said Vibhuthi Veeramuthusamy as well as her learned counsel Mr.Vijayaraghavan. The trial Court has also held that the relief of re-conveyance cannot be granted, since the very basis of the plaintiff's case is that Ex.A1 has been obtained by fraud and coercion. The trial Court has also held that the plaintiff is not averred about her readiness either in her pleadings or in her evidence. Therefore, the trial Court was pleased to dismiss the suit. Challenging the same, the appeal has been preferred by the plaintiff.
10. Shri.T.R.Rajagopalan, learned senior counsel appearing for the appellant submitted that the defendants have committed fraud as borne out by the evidence of P.W.1 and 2. The alternative plea sought for by the plaintiff ought to have been considered by the Court below by taking into consideration of the relevant facts. The learned senior counsel has further submitted that even though the plaintiff has proceeded on the footing that the document in question is the sale deed, the same is only the mortgage by conditional sale deed coming under Section 58 [c] of the Transfer of property Act, 1882. According to the learned senior counsel, in view of the averment made by the plaintiff that her intention was to execute the document as the mortgage deed, the Court below ought to have proceeded on the footing that once the document is a mortgage deed, the plaintiff is entitled to redeem the mortgage.
11. Shri.T.R.Rajagopalan submitted that in view of the alternative plea sought for, the Court can mold the relief by construing the document as mortgage by conditional sale deed.
12. Shri.T.R.Rajagopalan submitted that in order to construe the document as a mortgage by conditional sale deed, one has to consider the document itself and while considering the document the intention of the parties will have to be seen. According to Sri.T.R.Rajagopalan, there remains a debtor-creditor relationship between the parties, the title continues to be on the plaintiff and the document has been executed out of necessity. Moreover, there have been financial transactions between the parties earlier. In support of his contention that the document mentioned in Ex.A1 is only a mortgage by conditional sale deed, the learned senior counsel relied upon the judgments reported in AIR 1954 SC 345 (Chunchun Jha Vs.Ebadat Ali and another), AIR 1960 SC 301 (Bhaskar Waman Joshi (deceased) and others Vs. Shrinarayan Rambilas Agarwal (deceased) and others), 2006 (8) SCC 322 (Tulsi and others Vs. Chandrika Prasad and others), 1996 (I) CTC 337 [Natesa Pathar (died) N.Saroja & 10 others Vs. Pakkirisamy Pathar & two others], 1966 AIR (SC) 902 (P.L.Bapuswami Vs. N.Pattay Gounder), 2006 (2) MLJ 7 (S.C.) (Chennammal Vs. Munimalaiyan and others), 1998 (I) CTC 54 (S.Gopinathan Vs. Mannangatti Pillai), AIR 1974 MADRAS 311 (Murugan Vs. Jayarama Pillai and others).
13. Shri.T.R.Rajagopalan further submitted that the construction of the document, Ex.A1 would show that it is only a mortgage by conditional sale deed and not a sale deed with condition to repurchase. According to Shri.T.R.Rajagopalan, the question of readiness and willingness need not be gone into in such a situation. Hence, he prayed for allowing the appeal. The learned senior counsel also submitted that even though there is no specific pleading that the sale deed is only a mortgage, no pleading is necessary and the court below should be liberal in construing the pleadings. The learned senior counsel also submitted that the Court can consider the relief based upon its findings. In support of his contention, the learned senior counsel relied upon the judgments reported in 1997 (1) SC 669 (Madan Gopal Kanodia Vs. Mamraj Maniram and others), AIR 1969 SC 125 (Union of India Vs. M/s.Khas Karanpura Colliery Co. Ltd.,), 1987 2 SCC 555 (Ram Sarup Gupta (Dead) by Lrs. Vs. Bishun Narain Inter College and others) and AIR (38) 1951 SC 177 (Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and others).
14. Shri.Anand Chandrasekar appearing for the respondents submitted that the very stand taken by the plaintiff is that the sale deed has been created fraudulently by the defendants. Therefore, it is not open to the plaintiff to change her stand and contend that Ex.A1 is nothing but a mortgage deed. According to the learned counsel, the important factor to be seen in the present case is that in the earlier mortgage made under Ex.A3, the entire suit property has been mortgaged for a sum of Rs.80,000/- whereas, in the present sale deed only 1/3rd of the suit property has been sold. He also argued that the sale consideration is for a sum of Rs.1,25,000/- i.e., for a higher amount, whereas in the earlier mortgage deed more extent is mortgaged for a lesser amount. According to the learned counsel, the said fact is a clinching circumstance to show that Ex.A1 is the sale deed with a condition to repurchase the suit property. In support of his contention, the learned counsel relied upon the judgments reported in AIR 1963 SC 1906 (Bhoju Mandal and others Vs. Debnath Bhagat and others), AIR 1981 (2) MLJ 122 (Palani Gounder and others Vs. Thirumalai Gounder and others). The learned counsel also contended that after seeking to question the document that it is the one obtained by fraud and misrepresentation, the alternative relief cannot be asked. The learned counsel in support of his contention relied upon the judgments reported in AIR 1968 SC 1355 (Prem Raj Vs. The D.L.F. Housing and Construction (Private) Ltd., and another) and AIR 1991 Punjab and Haryana 212 (Roop Chand Chaudhari Vs. Smt. Ranjit Kumari). It is also submitted that in order to find out whether the document is mortgage or sale, one is to see the intention of the parties, which can be seen from the clause which provides for change of revenue documents such as patta as well as the clause providing for fore-closure. According to the learned counsel, when a clause is not provided for fore-Closure, then the same would amount to sale. In support of the said contention, the learned counsel relied upon the judgment reported in AIR 1992 SC 1236 (Tamboli Ramanlal Motilal (dead) by L.Rs. Vs. Ghanchi Chimanlal Keshavlal (dead) by L.Rs. and another).
15. I have considered the arguments of Shri.T.R.Rajagopalan appearing for the appellant as well as Shri.Anand Chandrasekar appearing for the respondents.
16. In the present case, there is no dispute regarding the execution of Ex.A1 dated 07.10.1983. The case of the plaintiff is that the said document has been executed as a sale deed even though, it was agreed between the parties that the same has to be executed as a mortgage by conditional sale. It is the further case of the plaintiff that taking advantage of the situation in which the plaintiff was placed, the defendants have created the sale deed. It is seen that not only the plaintiff but the plaintiff's second husband Vibhuthi Veeramuthusamy as well as her learned counsel were present at the time of execution. A mere reading of the document also shows that only 1/3rd of the properties mentioned in Ex.A3 has been sold. The amount mentioned in Ex.A1 is Rs.1,25,000/-, contrary to the sum of Rs.80,000/- mentioned in the mortgage deed earlier under Ex.A3. The document also shows that the amount has been fixed as the sale consideration. The time is fixed for re-conveyance as six months and in the event of the failure of the plaintiff to comply with the said condition mentioned in the sale deed, the third defendant is entitled to get the revenue documents such as patta to be transferred in his name.
17. Shri.T.R.Rajagopalan, contended that the pleadings will have to be interpreted liberally and technicalities shall not come in the way of rendering justice. According to Shri.T.R.Rajagopalan, the pleadings are the hand work of the lawyers and therefore, the intention of the parties will have to be seen. The said contention of Shri.T.R.Rajagopalan cannot be accepted for the reason that in the present case, totally different contention is sought to be argued before the Court. Till now, the pleadings have not been amended. The very specific case of the parties is that the document executed under Ex.A1 is a sale deed. The said document has been attacked by the plaintiff on the ground of fraud and misrepresentation. Therefore, the judgments relied upon by Shri.T.R.Rajagopalan are not applicable to the present case. This Court is also aware of the judgment by this Court reported in 1990 (2) LW 274 (Madhavan Vs. Kannammal and 27 others), wherein it has been held that when the facts have been established on record, the same can be taken as the basis for granting the decree even though they are in variance with the pleadings of the plaintiff. Therefore, there is no dispute with the principle of law that when a Court comes to the conclusion based upon the materials available on record, a decree can be passed on that basis. However, such a decree cannot be passed when the pleadings are totally contrary as in the present case. In the above said case, there was some mistake in tracing the history of the title to the suit properties. This Court was pleased to hold that such a mistake cannot deprive the plaintiff's title to the suit properties, since the very basis of the claim remains the same. However, the said judgment cannot be applied to the present case on hand, since the suit has been filed challenging the very same document executed under Ex.A1, the sale deed. In a recent judgment reported in 2009 (4) MLJ 900 (Bachhaj Nahar Vs. Nilima Mandal and others), the Hon'ble Supreme Court was pleased to hold that no amount of evidence can be looked into upon the plea which was never put forth in the pleading. The Court should confine to the question raised in the pleading. Therefore, in the absence of pleading the relief cannot be granted to the plaintiff. The principle laid down by the Hon'ble Supreme Court in the said judgment squarely applies to the present case. Hence, the contention of Shri.T.R.Rajagopalan cannot be accepted.
18. In so far as the plea of fraud and misrepresentation is concerned, the trial Court has correctly found that the plaintiff has miserably failed to prove the same. The plaintiff was assisted by her second husband Vibhuthi Veeramuthusamy and her counsel. The trial Court on a consideration of evidence on record was pleased to hold that the said fact has not been proved. When a party alleges undue influence and fraud, the onus is on the party to prove the same. Similarly, under Section 114 (e) of the Indian Evidence Act, a presumption is made in favour of the document which has been duly registered. There is also a presumption that all the official acts done by the authority are true unless the same is proved otherwise. In the present case, the recitals clearly stipulate that the amount has been received by the plaintiff in the presence of Sub-Registrar. The Sub-Registrar has also been examined as P.W.3 and he has also spoken about the same. Moreover, there is an admission by the plaintiff that she has received the amount as mentioned in Ex.A1, which is contrary to her very own pleading that she has not received a part of the consideration. It is also well known that under
Section 92 of the Indian Evidence Act, a party to a document who admits the same cannot give evidence contrary to the same. Further, an admission made by the party is the best form of evidence. The Hon'ble Supreme Court was pleased to hold in the judgment reported in 2007 (3) MLJ 467 (Bhandari Construction Company Vs. Narayan Gopal Upadhye) a passage is extracted hereunder for useful reference:
"15. When the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of
Section 91 of the Evidence Act. There is no case that any of the provisos to
Section 92 of the Act are attracted in this case. Why the case that was sought to be spoken to by the respondent was not set up by him in the complaint was not explained. The case set up in evidence was completely at variance with the case in the complaint. There was no evidence to show that the consideration was to be R%s.9,00,000/-, especially, in the light of the recitals in the registered agreement. There was also no document to show the payment of Rs.4,00,000/- by way of cash. Hence, this was no evidence to show the balance amount due under the agreement after the admitted payment of Rs.5,00,000/- was paid. The affidavit produced before the State Forum and the evidence of the colleague of the respondent is clearly inadmissable and insufficient to prove any such payment. Thus, the case set up by the respondent in his evidence was not established. It is in that situation that the District Forum, taking note of the payment of Rs.5,00,000/- and the failure of the respondent to encash the cheque for Rs.5,00,000/- that was returned by the company, ordered the complainant to pay the balance amount due under the transaction as evidenced by the written instrument and take delivery of the premises in question and in the alternative, gave him the option to take back the sum of Rs.5,00,000/- with interest. Neither the State Commission, nor the National Commission has given any sustainable reason for differing from the conclusion of the District Forum. A mere suspicion that builders in the country are prone to take a part of the sale amount in cash, is no ground to accept the story of payment of Rs.4,00,000/- especially when such a payment had not even been set up in the complaint before the District Forum. Not only that, there was no independent evidence to support the payment of such a sum of Rs.4,00,000/- except the ipse dixit of the respondent. The affidavit of the Bank employee filed in the State Commission cannot certainly be accepted as evidence of such a payment. Payment of such a sum had clearly been denied by the company. The respondent had, therefore, to prove such a payment. His case that the purchase price was Rs.9,00,000/-, itself stands discredited by the recitals in the agreement dated 27.07.1997 in which the purchase price was recited as Rs.7,75,000/-. Not only that, the respondent did not have a receipt for evidencing the payment of Rs.4,00,000/- and if the amount was paid on 05.07.1997 or 08.07.1997, as claimed by him, he would certainly have ensured that the payment was acknowledged in the agreement for sale executed on 27.07.1997. The agreement for sale actually speaks of his obligation to pay the balance to make up Rs.7,75,000/- after acknowledging receipt of Rs.5,00,000/-. The respondent is not a layman. He is a practising advocate. According to him, he specialises in documentation. He cannot, therefore, plead ignorance about the existence of the recital in the agreement. He cannot plead ignorance of its implications."
19. In the very recent judgment reported in 2009 (2) CTC 861 (Vimal Chand Ghevarchand Jain & Others Vs. Ramakant Eknath Jajoo), the Hon'ble Supreme Court has held that a heavy burden of proof lies upon the defendants to show that the transactions was a sham and nominal one.
20. In the judgment reported in 2008 (2) MLJ 880 (Radhabai Vs. Arunagiri and others), the Division Bench of this Court has held that a sale deed cannot be declared as null and void in the absence of any evidence to prove the alleged vitiating circumstances. Similarly, in the judgment reported in 2007 (5) MLJ 1273 (SC) (Gannmani Anasuya and others Vs. Parvatinin Amarendra Chowdhry and others) wherein, it has been held that an admission made by a party is the best form of evidence. As held earlier, the plaintiff has not discharged the onus to prove fraud, misrepresentation and undue influence by the defendants. Therefore, on a consideration of the above said legal and factual position, this Court is of the opinion that the plea of fraud and undue influence have not been established.
21. It is also been held in the judgments reported in 2000 (2) MLJ 111 (Natarajan Vs. Veeran), 2002 (2) LW 3 (State of Haryana Vs. Ram Singh), 2000 (1) SCC 434 (Ishwar Dass Jain (Dead) Through Lrs. Vs. Sohan Lal (Dead) by Lrs.,) and 2000 (1) TNLJ 304 (Backiam & another Vs. Krishnan) by the Apex Court as well as this Court that when a document is registered there arise a presumption under Section 114 (e) of the Indian Evidence Act. In the present case as discussed earlier, the document speaks about the payment made at the time of execution in the presence of the Sub-Registrar and the said officer has also been examined as D.W.3. Therefore, on a consideration of the above said legal position, this Court is of the opinion that the said presumption has not been dis-spelled by the plaintiff.
22. Shri.T.R.Rajagopalan further submitted that the document has to be construed as a mortgage by conditional sale deed and in such an event, the Court has to grant a decree since the plaintiff has sought for the relief of re- conveyance of the suit property. Shri.T.R.Rajagopalan submitted that a mere reading of Ex.A1 particularly reflect the existence of an earlier debt. The clause providing for re-conveyance would clearly show that the document executed under Ex.A1 is only a mortgage by conditional sale and hence, the suit is liable to be decreed on that score. The learned senior counsel relied upon the judgments reported in 1954-AIR (SC) 345 (Chunchun Jha Vs.Ebadat Ali and another), AIR 1960 SC 301 (Bhaskar Waman Joshi (deceased) and others Vs. Shrinarayan Rambilas Agarwal (deceased) and others), 1996 (I) CTC 337 [Natesa Pathar (died) N.Saroja & 10 others Vs. Pakkirisamy Pathar & two others], 2006 (8) SCC 322 (Tulsi and others Vs. Chandrika Prasad and others), 2009 (2) SCC 673 (C.Cheriathan Vs. P.Narayanan Embranthiri and Others) in support of his contention that the document under Ex.A1 is only a mortgage by conditional sale coming under Section 58 [c] of the Transfer of Property Act, 1882, and not a sale with a condition to repurchase.
23. The said contention of the learned senior counsel Mr.T.R.Rajagopalan cannot be accepted for the simple reason that it is not open to the appellant to make such a submission in the teeth of her own evidence and pleadings. It is the specific case of the plaintiff that Ex.A1 is the sale deed, even though, it was meant to be a mortgage deed. In order to find out as to whether the document is a mortgage by conditional sale or a sale with a condition to repurchase, the various factors will have to be looked into. The intention of the parties will have to be seen at the first instance. In order to find out the intention of the parties, the document has to be looked into. While looking into the document, the said document has to be looked into as a whole. In the present case, Ex.A1 clearly stipulates the time for re-conveyance. It also stipulates the amount for sale consideration. Therefore, it does not stipulate the loan amount as the sale consideration. As rightly contended by the learned counsel for the respondent in the present case, a sum of Rs.1,25,000/- has been fixed as a sale consideration out of the total value of Rs.3,75,000/-. This is because, only 1/3rd of the total property is sought to be conveyed under Ex.A1. Similarly, another important factor to be seen is that the third defendant was given the right to change the revenue records after the expiry of the period mentioned in Ex.A1. Further, there is no mention about foreclosure by the third defendant indicating that the said document is a mortgage deed. The above said facts would prove that Ex.A1 is only a sale with a condition to repurchase, within the time granted and not a mortgage by conditional sale deed coming under Section 58 [c] of the Transfer of property Act, 1882. In the judgment reported in 1954-AIR (SC) 345 (Chunchun Jha Vs.Ebadat Ali and another), the Hon'ble Supreme Court was pleased to hold that in order to find out as to whether the document is a mortgage by conditional sale or a sale with condition to repurchase, one has to see the facts and circumstances of each case. In the said case, the Hon'ble Supreme Court was pleased to hold that in view of the specific clause, which says that the vendee shall have possession and occupation from generation to generation, the same would mean the possession alone and the absence of non mentioning of title would clearly establish the fact that it is only a mortgage by conditional sale deed. Similarly, the judgment reported in AIR 1960 SC 301 (Bhaskar Waman Joshi (deceased) and others Vs. Shrinarayan Rambilas Agarwal (deceased) and others), the Hon'ble Supreme Court has held that one has to see the intention of the parties as well as the circumstances involved in the case. The Hon'ble Supreme Court was pleased to hold that the question to be decided is whether the property in question has been given as a security or as a sale by considering the facts involved in each case. The learned counsel also relied upon the judgment reported in 1996 (I) CTC 337 [Natesa Pathar (died) N.Saroja & 10 others Vs. Pakkirisamy Pathar & two others], wherein this Court was pleased to hold that the condition stipulated in the document that the purchaser shall not create any embargo on the property would show that the document is a mortgage by conditional sale. In the judgment reported in 2009 (2) SCC 673 (C.Cheriathan Vs. P.Narayann Embranthiri), the Hon'ble Supreme Court once again reiterated the position of law that the document has to be read as a whole along with the attending circumstances to prove or to hold whether a document is a mortgage by conditional sale or a sale deed with a condition to repurchase. In the judgment reported in 2006 (8) SCC 322 (Tulsi and others Vs. Chandrika Prasad and others), the Hon'ble Supreme Court has held that when there is a condition which says that the transferee has a right to have his name mutated in the municipal records and pay taxes, the same would be a sale. Hence, the above said judgments only help the case of the respondents.
24. As contended by the learned counsel for the respondent, in the judgment reported in AIR 1992 SC 1236 (Tamboli Ramanlal Motilal (dead) by L.Rs. Vs. Ghanchi Chimanlal Keshavlal (dead) by L.Rs. and another), the Hon'ble Supreme Court was pleased to hold that when there is a clause that express the intention of making the transaction a conditional sale with an option to repurchase, such a document cannot be termed as a mortgage by conditional sale. The Hon'ble Supreme Court was also pleased to hold that the absence of mentioning of the right of foreclosure is also a factor to show that the document is not a mortgage. In the judgment reported in AIR 1963 SC 1906 (Bhoju Mandal and others Vs. Debnath Bhagat and others), the Hon'ble Supreme Court has clarified the judgment reported in 1954-AIR (SC) 345 (Chunchun Jha Vs.Ebadat Ali and another) by holding that in a case where a document has been executed for the larger sum pertaining to lesser extent as against the earlier mortgage deed which was executed for a lesser amount for larger extent, the said fact would be a clinching circumstance to hold that the document is a sale with a condition to repurchase. The said judgment was also followed by the High Court in the judgment reported in AIR 1981 (2) MLJ 122 (Palani Gounder and others Vs. Thirumalai Gounder and others). The above said two judgments relied upon by the respondent squarely apply to the present case on hand. In the present case also, there was an earlier mortgage for a larger extent and the amount involved is less. Therefore, on a consideration of the above said legal position, this Court is of the opinion that the contention of the learned counsel for the appellant that the document executed under Ex.A1 is only a mortgage by conditional sale cannot be accepted.
25. In so far as the alternative plea is concerned, i.e., for directing the third defendant to execute the sale deed with a condition to repurchase, the same also cannot be accepted. The suit has been filed by the plaintiff Informa Pauperis and there is no evidence to show that the plaintiff has approached the defendants expressing her intention to make the payment. Further, such a plea cannot be accepted, since the same is totally contrary to the earlier plea, that is to set aside Ex.A1, sale deed on the ground of fraud and miss-representation. The learned counsel for the respondent has relied upon the judgment reported in AIR 1968 SC 1355 (V 55 C. 262) (From Punjab) [Prem Raj Vs. The D.L.F. Housing and Construction (Private) Ltd., and another] and AIR 1991 Punjab and Haryana 212 (Roop Chand Chaudhari Vs. Smt. Ranjit Kumari) to submit that when a plea of declaration that a particular contract is void is sought for, the plaintiff cannot alternatively pray for specific performance of the same contract. As rightly contended by the learned counsel for the respondent, the plaintiff cannot make such a plea in the teeth of order 7 Rule 7 of the Civil Procedure Code.
Section 37 of the Specific Relief Act expressively provides for filing the suit for specific performance with an alternative plea for recession of the contract but the converse is not provided. Similarly, a mere reading of the Specific Relief Act would show that the plaintiff sueing for recession of the contract may not sue in the alternative for specific performance. Therefore, this Court is of the opinion that the judgments relied upon by the learned counsel for the respondent are applicable to the present case on hand. Moreover, the plaintiff has not proved the factum of any panchayat held between the parties and she has approached the third defendant within the time specified.
26. In the present case, plaintiff has not proved that she is ready and willing as observed earlier. The plaintiff has filed the suit as Informa Pauperis. It is also admitted on record that the plaintiff has been having number of debts and litigations. Therefore, from the above said facts, it is made clear that the plaintiff has not established her fact that she is ready and willing to pay the amount. Hence, even assuming the alternative plea is maintainable, the plaintiff is not entitled to get the same. In the judgment reported in 2005 (6) SCC 243 (Umabai and another Vs. Nilkanth Dhondiba Chavan (dead) by Lrs. and another), the Hon'ble Supreme Court has held that in the absence of any evidence to show that the plaintiff is having sufficient means the plea of readiness and willingness cannot be held to be true. Further in the said judgment, the Hon'ble Supreme Court was pleased to hold that when a plea for redemption of mortgage and discharge from debt is raised then the other plea of readiness and willingness cannot be accepted.
27. No doubt, in the present case, the plaintiff has sought for the alternative prayer on the ground that she is ready to pay the amount of sale consideration and on receipt of the said amount the sale deed is to be executed by the third defendant. The relief sought for by the plaintiff cannot be granted by a Civil Court in view of the fact that the sale has been effected and the third defendant has become the owner of the suit property. It is also well settled principle of law that the law will prevail over the equity and that the equity can supplement law but not override the same. In the judgment reported in 2007 (5) CTC 642 (Raghunath Rai Bareja and another Vs. Punjab National Bank and others), it has been held that equity can not override law but only supplement. Therefore, this Court is of the opinion that the alternative relief sought for by the plaintiff cannot be granted.
28. Hence, on a consideration of the entire facts available on record and on a further consideration of the legal issues involved in the appeal, this Court finds that there is no ground made out for interference with the judgment and decree of the Court below. Hence, this Court is of the opinion that the appeal deserves to be dismissed.
Accordingly, the first appeal is dismissed and the judgment and decree made in O.S.No.23 of 1990 dated 29.03.1993, on the file of the learned Subordinate Judge, Thanjavur is confirmed. There shall be no orders as to costs.
DP To The Subordinate Judge, Thanjavur.