Rama Devi Vs. Dilip Singh
 INSC 480 (14 March 2008)
Tarun Chatterjee & Harjit
Singh Bedi 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 Area 6 Bighas 10 Biswas share out of 12 Bighas 1 Biswa of Plot
(2) Relief of permanent injunction claimed restraining the defendant from
interfering in plaintiffs possession.
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:
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.
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.
Whether the suit for amendment
(redemption) is not maintainable in law.
Whether the deal in suit is a complete sale with the effect of Zamindari
Whether the plaintiff has not got
done the re-sale within the prescribed time as has been stated by the defendant.
To what relief the plaintiff is
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.
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..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 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 Act) 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:
Sec.155. Mortgage of land by a bhumidhar.
No bhumidhar shall have the right to 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
Sec.164. Transfer with possession by a bhumidhar to be deemed a sale. 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. [Every
transfer made in contravention of the provisions of this Act shall be
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 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 to every such
sale the provisions of Section 155 and section 166 would not apply. We find
that the respondents stand is supported by the judgments that have been
cited. In Bhagwatias case (supra), the petitioners 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:
It 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
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
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 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
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.
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