SOPAN (DEAD) THROUGH HIS L.R. versus SYED NABI

SOPAN (DEAD) THROUGH HIS L.R. versus SYED NABI

Exh.23 (sale deed) did not embody any condition of reconveyance as required by the proviso to Section 58(c); the contemporaneous agreement (Exh.24) being a separate document cannot convert the sale into a mortgage by conditional sale; additional payment shown in Exh.14/1 increased the financial consideration to Rs.7,224/-, which was not repaid, and mutation in defendant's favor corroborates that the sale became absolute; therefore the suit for redemption was not sustainable and the proper remedy (if any) was specific performance, not redemption.

Parties
Appellant; Defendant in Original Suit: SOPAN (DEAD) THROUGH HIS L.R.; Respondent; Plaintiff in Original Suit: SYED NABI
Jurisdiction
India
Judgment Date
16 July 2019
Procedural Posture
Civil Appeal / Appeal to Supreme Court; Judgment Delivered
Outcome
Appeal allowed; High Court judgment dated 26.09.2007 in S.A.No.479 of 1991 set aside; judgment dated 29.06.1990 of the Additional District Judge in Regular Civil Appeal No.233 of 1984 restored.
Legal Topics
Mortgage by Conditional Sale, Reconveyance, Redemption, Specific Performance, Mutation of Revenue Records
Transfer of Property Act, 1882 Property Law Specific Relief Act, 1963 Mortgage by Conditional Sale Reconveyance Redemption Specific Performance Mutation of Revenue Records

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Parties

SOPAN (DEAD) THROUGH HIS L.R.

Appellant; Defendant in Original Suit

SYED NABI

Respondent; Plaintiff in Original Suit

Procedural Posture

Civil Appeal / Appeal to Supreme Court; Judgment Delivered

Legal Issues

  1. 1 Whether the sale deed dated 10.12.1968 together with contemporaneous agreements (Exh.24 and Exh.14/1) constitute a mortgage by conditional sale within Section 58(c) of the Transfer of Property Act, 1882
  2. 2 Whether a reconveyance agreement embodied in a document separate from the sale deed can convert a sale into a mortgage by conditional sale under the proviso to Section 58(c)
  3. 3 Effect of non-repayment of amounts and subsequent mutation in determining whether the sale became absolute

Ratio Decidendi

Exh.23 (sale deed) did not embody any condition of reconveyance as required by the proviso to Section 58(c); the contemporaneous agreement (Exh.24) being a separate document cannot convert the sale into a mortgage by conditional sale; additional payment shown in Exh.14/1 increased the financial consideration to Rs.7,224/-, which was not repaid, and mutation in defendant's favor corroborates that the sale became absolute; therefore the suit for redemption was not sustainable and the proper remedy (if any) was specific performance, not redemption.

Court Disposition

Appeal allowed; High Court judgment dated 26.09.2007 in S.A.No.479 of 1991 set aside; judgment dated 29.06.1990 of the Additional District Judge in Regular Civil Appeal No.233 of 1984 restored.

Orders

  • Set aside the High Court judgment dated 26.09.2007 in S.A.No.479 of 1991
  • Restore the judgment dated 29.06.1990 passed by the Additional District Judge in Regular Civil Appeal No.233 of 1984