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CASE NO.: Appeal (civil)  4125 of 2001

PETITIONER: Rama Devi

RESPONDENT: Dilip Singh

DATE OF JUDGMENT: 14/03/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

HARJIT SINGH BEDI,J.

1.      In this appeal by special leave the facts have been taken  from the judgment of the first appellate Court as they have not  been detailed in the judgment of the High Court. 2.      The plaintiff-appellant Rama Devi executed a  mortgage/sale deed dated 15th May 1974  for 6 Bigha and 10  Biswas out of her total land area of 12 Bigha 1 Biswa for  Rs.13,000/- as she needed funds for her business.  In the  document aforesaid, it was recited that in case the amount of  Rs.13,000/- plus interest at the rate of 24% per annum was  returned to her within a period of 5 years  the land would be  re-conveyed to her.   It is the case of the appellant that she  had made a request to the respondent within the aforesaid  period for re-transfer but the respondent had refused to  accede thereto.  This refusal prompted the appellant to issue  two notices dated 27th April 1979 and 9th April 1981 to the  respondent but he refused to accept the same but under the  influence of the local people he returned the possession of the  land to her in June 1984.  As the necessary re-conveyance  had not been executed by the respondent, the appellant filed a  suit praying that:

(1)     A decree for redemption of the  conditional mortgage deed dated  15.4.1974, registered on 24th May  1974 be passed in favour of the  plaintiff and against the defendant  in respect of the property as detailed  below:

       Property in dispute situated in  Village Pokhrain, Tehsil Bhognipur,  District Kanpur Dehat \026 Area 6  Bighas 10 Biswas share out of 12  Bighas 1 Biswa of Plot No. 958.

(2)     Relief of permanent injunction  claimed restraining the defendant  from interfering in plaintiff\022s  possession.

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3.      The defendant respondent admitted the execution of the  document dated 15th May 1974 but contested the suit on  various grounds.  On the pleading of the parties the following  issues were framed: 1.      Whether the document dated 15.5.74  executed between the parties is a  conditional Benama, as has been stated  by the plaintiff in para 1 of the petition or  it is of the nature of complete sale (out  and out sale with a condition of  repurchase) as has been strated by the  defendant, its effect in  both the  circumstances.

2.      Whether the defendant in the month of  June 1984 has returned the possession  to the plaintiff and the plaintiff is in  possession of the land in dispute.  If yes,  then its effect.

3.      Whether the suit for amendment  (redemption) is not maintainable in law.

4.      Whether the deal in suit is a complete  sale with the effect of Zamindari Abolition  Act. 5.      Whether the plaintiff has not got done the  re-sale within the prescribed time as has  been stated by the defendant.

6.      To what relief the plaintiff is entitled to.

7.      What the defendant was in possession of  the agricultural land in dispute as a  cultivator upto the year 1984, as is the  submission of the plaintiff.

8.      Whether the defendant had got the  document dated 15.5.1974 in question  executed in place of mortgage on interest,  as conditional sale, by way of conspiracy  and fraud\005\005\005\005..in case yes, then its  effect.

4.      The trial court in its judgment dated 20th March 1996  decided issue Nos. 1 and 4 together and held that the  document dated 15th May 1974 was not a mortgage but was in  fact a sale and that the respondent continued to be in  possession of the land in dispute.  On issue Nos. 3 and 5, the  learned trial Judge came to the conclusion that the appellant  did not have any right to get the property re-deemed  and on  issue No.7 reiterated that the document dated 15th May 1974  constituted a sale.  On issue No.8, the trial court held that  there was no evidence of fraud etc. and accordingly dismissed  the suit vide judgment dated 20th May 1996.  An appeal was  thereafter filed by the unsuccessful plaintiff.  The first  appellate court framed two points for consideration and after  examining the contents of the document dated 15th May 1974  and the evidence of the parties, endorsed the findings of the

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trial court that the document aforesaid was in fact a deed of  sale and not a mortgage and would also be deemed to be a sale  under section 164 of the U.P. Zamindari Abolition and Land  Reforms Act, 1950 ( hereinafter called the \023Act\024) and as this  was a special Act, it would supercede all others and as such  the provisions of the Transfer of Property Act would not be  applicable.  It was further concluded that as the appellant had  not sought the re-conveyance within 5 years, as stipulated in  the agreement of 15th May 1974 she had in any case lost her  right to the re-conveyance.  The argument of the learned  counsel for the appellant that as section 155 of the Act placed  an embargo on the transfer of agricultural land by a  Bhumidhar which made the transaction of 15th May 1974  nonest in view of the provisions of section 166 of the Act, was  also repelled by observing that section 155 would have no  applicability in such a case.  The first appellate court  accordingly dismissed the appeal leading to a second appeal in  the Allahabad High Court.  The learned Judge by his order  dated 25th January 2001 accepted the findings recorded by the  two subordinate courts and dismissed the appeal.  The  present matter is here at the instance of the plaintiff. 5.      The learned counsel for the appellant has raised several  arguments in the course of the hearing.   He has pointed out  that the transaction of 15th May 1974 was a mortgage by way  of conditional sale as envisaged under Section 58-C of the  Transfer of Property Act and as such the appellant was  entitled to seek its redemption within a period of 30 years and  the findings of the courts below to the contrary limiting the  period to 5 years was erroneous. It has also been reiterated  that Section 164 of the Act was not applicable in view of the  specific bar under Section 155 read with Section 166 on the  transfer of possession of land by a Bhumidhar in order to  secure a debt.  The learned counsel for the respondent has,  however, pointed out that there was a concurrent finding of  fact that the transaction of 15th May 1974 was in fact a sale  outright and as such the question of re-conveyance within 5  years or 30 years had to be ruled out.  It has also been argued  that even assuming that the aforesaid document constituted a  mortgage, yet by the deeming provisions of Section 164, such  mortgage would be deemed to be a sale in the hands of the  transferee and as such the appellant had lost all her rights in  the land in question.   6.      We have heard the learned counsel for the parties and  gone through the record.  The three courts below have  examined the document dated 15th May 1974 and concluded  that it was in fact a sale and not a mortgage, as understood  under section 58-C.  In Chunchun Jha  vs.   Ebadat Ali &  Anr.  AIR 1954 SC 345, this Court has held that a document  has to be construed and interpreted as a whole in order to  arrive at a conclusion as to its true meaning and import and to  determine whether it was a mortgage by way of conditional  sale or a sale outright.  We also find from the evidence on  record that the possession had been transferred to the  respondent herein at the time of the execution of the  document on 15th May 1974 and the respondent continues to  be in possession as of today as per the findings of the three  courts below.  We are, therefore, disinclined to interfere with  the findings of fact for these reasons. 7.      Even otherwise assuming for a moment that the  transaction was in fact a mortgage, the appellant has lost all  her rights in the property by virtue of the deeming provisions  in section 164 of the Act.  We reproduce Sections 155, 164  and 166 of the Act herein below: \023Sec.155. Mortgage of land by a bhumidhar.  \026 No bhumidhar shall have the right to

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mortgage any land belonging to him a such  where possession of the mortgaged land is  transferred or is agreed to be transferred in  future to the mortgagee as security for the  money advanced or to be advanced.

Sec.164. Transfer with possession by a  bhumidhar to be deemed a sale. \026 Any  transfer of any holding or part thereof made  by a bhumidhar by which possession is  transferred to the transferee for the purpose  of securing any payment of money advanced  or to be advanced by way of loan, and  existing or future debt or the performance of  an engagement which may give rise to a  pecuniary liability, shall, notwithstanding  anything contained in the document of  transfer or any law for the time being in  force, be deemed at all times and for all  purposes to be a sale to the transferee and  to every such sale the provisions of sections  154 and 163 shall apply.

Sec.166. Transfer made in contravention of  the Act to be void. \026 [Every transfer made in  contravention of the provisions of this Act  shall be void.]\024

8.      Relying on the express embargo placed by Section 155,     Mr. Swarup has argued that as the land had been mortgaged  by a Bhumidhar contrary to the provisions of Section 155, the  said transaction was deemed to be void in terms of section  166.  In this connection, the learned counsel has placed  reliance on P.B.Maganbhai & Anr. vs. P.K.Ambaram & Ors.  1997 Allahabad L.R. Vol. 29, P.627.  It has also been  submitted that the very wording of section 164 showed that  certain kinds of transactions would be deemed to be sales and  as the finding of the courts below was that the agreement of  15th May 1974 was in fact a sale, the question of any deeming  provision identifying a sale transaction as a deemed sale  would not arise.  The learned counsel for the respondent has,  however placed reliance on Smt. Bhagwatia  vs.  Dy. Director  of Consolidation at Deoria & Ors. 1982 Allahabad L.J. 29  and  Sati Prasad & Anr.  Vs.  The Dy. Director of  Consolidation, Kanpur & Ors. 1983 Allahabad L.J. 331 to  contend that a mortgage by conditional sale would be deemed  to be a sale by fiction of law and that section 155 of the Act  would not be applicable in the present case as interest in the  property had also been transferred and possession handed  over to the respondent whereas section 155 talked only about  possession.      9.      We have considered the arguments advanced by the  learned counsel for the parties.  A bare perusal of section 155  would reveal that it would apply to a mortgage where the  possession of land has been transferred or is agreed to be  transferred in the future as security for the money advanced  or to be advanced and it is such a transaction which is held to  be void under section 166.  Section 164 however talks about  transfer of a holding or part thereof made by a bhumidhar by  which possession has been transferred for the purpose of  securing any payment of money etc. and it says that  notwithstanding anything contained in the document of  transfer or any law for the time being in force, such a  transaction would be deemed to be a sale to the transferee and

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to every such sale the provisions of Section 155 and section  166 would not apply.  We find that the respondent\022s stand is  supported by the judgments that have been cited.  In  Bhagwatia\022s case (supra), the petitioner\022s husband executed a  usufructuary mortgage deed and possession had also been  transferred to the mortgagee for securing re-payment of the  loan.  The learned Judge held that this mortgage would be  deemed to a sale under section 164 of the Act.   While dealing  with an identical situation and to Section 164 this is what the  learned Single Judge had to say:      \023It is apparent from the aforesaid section  that the usufructuary mortgage of Bhumidhari  land, where possession is transferred as  security for payment of loan, would be covered  by the provisions of S.164 and  notwithstanding anything contained in the  document of transfer or any law for the time  being in force, it would be deemed to be sale to  the transferee itself.  It, therefore, follows that  the covenant contained in the usufructuary  mortgage deed in question that the mortgagor  would be entitled to redeem the property by  making payment of loan and within a period of  three years is of no consequence as the  transfer by way of usufructuary mortgage in  question would be deemed to be sale under  S.164 of the U.P. Zamindari Abolition and  Land Reforms Act.            In the aforesaid case the question  regarding legal status of the person who was  put in possession in lieu of the interest was  considered in the light of provisions of the U.P.  Tenancy Act which was then in force when the  possession was transferred to the creditor and  his possession was considered to be on behalf  of the owner himself.  In the above mentioned  case the interpretation of the S.164 of the U.P.  Zamindari Abolition and Land Reforms Act was  not involved nor was it dealt with.  The  provisions of S.164 of the said Act were not  attracted to the facts of the aforesaid case.   The aforesaid case is thus clearly  distinguishable and is not applicable to the  facts of the present case, where the question is  involved is whether usufructuary mortgage  would or would not be deemed to be a sale as  provided under S.164 of the said Act.            Under S.164 of the U.P. Zamindari  Abolition and Land Reforms Act it is provided  that such  a transaction would be deemed at  all times and for all purposes to be sale to the  transferee.  It thus follows that it would be  deemed to be sale from the very inception i.e.  from the date of execution of the usufructuary  mortgage and transfer of possession in  pursuance thereof to the mortgagee.  The  provisions of S.60 of the Transfer of Property  Act would, therefore, not be applicable to such  mortgage and the mortgager will have no right  to redeem the mortgage and to claim  possession from the mortgagee by offering to  make payment of loan amount.  The aforesaid  statutory right of redemption as provided

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under section 60 of the Transfer of Property  Act would not be available to the mortgager  Bhumidhar in view of the provisions of S.164  of the U.P. Zamindari Abolition and Land  Reforms Act according to which for all times  and for all purposes it would be deemed sale to  the transferee.  If the transfer amounts to sale  by legal fiction under the aforesaid deeming  provision, the transferor would be left with no  right to redeem the property in question.  The  provisions with regard to the rights of  mortgagor and mortgagee contained in the  Chapter IV of the Transfer of Property Act  would not apply to such mortgages which are  hit by the provisions of S.164 of the U.P.  Zamindri Abolition and Land Reforms Act.            A deeming provision in a statute  postulates that a thing deemed to be  something else is not, in fact, the thing which  it is deemed to be something else, it is to be  treated as if it is that thing, though in fact it is  not.\024       10.     We respectfully agree with the observations aforesaid and  find them to be fully applicable to the facts of the present case.   The argument of the learned counsel for the appellant that  there could be no deemed sale under Section 164 of the Act,  has also to be repelled in the light of the aforesaid  observations.   The judgment cited by the learned counsel for  the appellant also has no relevance to the facts of this case. In  view of the above findings, we are of the opinion that no  further issue arises.  We accordingly dismiss the appeal.