PATEL ATMARAM NATHUDAS SINCE DECD Vs. PATEL BABUBHAI KESHAVLAL

JUDGEMENT

(1.) Even though an illiterate sitting tenant who does a good turn to his landlord by advancing a loan on mortgage expressly does nothing the law should attribute and ascribe to him a suicidal intention to surrender his tenancy by virtue of the fictional doctrine of merger (about which the poor tenant obviously knows nothing) says the respondent. And it is this proposition which inter alia calls for scrutiny in this appeal.

(2.) On March 14 1947 the owners of the suit fields which according to the appellant were in his possession as a sitting tenant since more than 6 years before the date of the transaction transferred the same to one Vadilal under a registered document Ex. 54. Whether the document is one of an outright sale or one creating a mortgage by conditional sale is one of the questions which confronts the Court in the present matter. 2 1/2 months thereafter the transferee Vadilal executed document Ex. 25 transferring such rights as he had acquired from the original owners to the appellant who claims to be the sitting tenant. Some 18 years thereafter on April 22 1965 the original owners transferred to the respondentplaintiff their right title and interest in these fields. Some 2 years later i.e. some 20 years after the original transaction between the owners and Vadilal on April 7 1967 the heirs of Vadilal (Vadilal having died meanwhile) executed a document Ex. 27 in favour of the respondent-plaintiff. And without losing any time i.e. within three months of the acquisition of the rights from Vadilals heirs the respondent-plaintiff instituted the suit giving rise to the present appeal. He came to the Court with the case that the transaction between the original owners and Vadilal reflected in Ex. 54 was of mortgage by conditional sale. It was also his case in the plaint that subsequently a sub-mortgage had been created by Vadilal in favour of the appellant-defendant under Ex. 25. And furthermore it was his case that he had acquired the right of redemption from the original owners and was entitled to redeem the properties from the appellant-defendant. It was his alternative case that in the event of the Courts holding that the transactions in question created an absolute sale in favour of the transferee he was entitled to specific performance of the stipulation contained in the documents extending to the transferor the option to claim reconveyance of the properties in question. In paragraphs 8 and 9 of the plaint it was made abundantly clear that the relief claimed was one for redemption and in the alternative for specific performance. In other words the main relief claimed by the plaintiff was for redemption and only in the alternative the relief for specific performance of covenant to reconvey was claimed.

(3.) The appellant-defendant who claimed to be the sitting tenant from before 1942 i.e. from about 6 years prior to the first transaction of 1947 presumably became panicky and resisted the suit inter alia by contesting the claim of the plaintiff that the documents in question created a mortgage by conditional sale in favour of the transferees. He assumed the posture that the documents created an out and out sale. This stand was presumably taken because the appellant-defendant in order to protect his long standing tenancy wanted to advance the contention that the stipulation to reconvey embodied in the aforesaid documents was of a personal character and that it was neither capable of being assigned in favour of a third party nor capable of being enforced by a third party. Be that as it may the appellant-defendant contended that the transaction was of the nature of absolute sale and that the covenant embodied therein for reconveyance was incapable of being enforced. The stand was also taken that he was a sitting tenant and he was not liable to be evicted having regard to the protection afforded by the Tenancy Act. A contention was also raised to the effect that the transaction relied upon by the plaintiff was hit by secs. 63 and 64 of the Bombay Tenancy and Agricultural Lands Act 1948 and was accordingly void. It was also alleged that the parties had colluded in order to deprive him of his tenancy rights and to dispossess him of the fields in question. Some other contentions were also raised in the written statement to which a detailed reference is unnecessary at the present juncture. The trial Court did not accept the case of the plaintiff that the relevant transactions created a mortgage by conditional sale. The trial Court however upheld the alternative case of the plaintiff that what was created by the aforesaid transactions was absolute sale in favour of the transferee coupled with a stipulation to reconvey. The trial Court was however of the opinion that the covenant for reconveyance was of a personal character and was not capable of being assigned. Having regard to this view the trial Court was of the opinion that the plaintiff in his capacity as the assignee from the purchaser was not entitled to obtain specific performance of the said covenant. The trial Court accordingly dismissed the suit. The respondent-plaintiff appealed to the District Court. The learned Extra Assistant Judge who heard the appeal concurred with the view taken by the trial Court that the transactions created an out and out sale in favour of the transferees. He however differed from the learned trial Judge in regard to the question whether the covenant to reconvey was of a personal character and whether it was assignable. In his opinion it was assignable. He accordingly came to the conclusion that the plaintiff was entitled to succeed. With regard to the physical possession also the learned appellate Judge was of the view that the plaintiff was entitled to claim physical possession. He accordingly decreed the plaintiffs suit and directed the appellant-defendant to execute a deed of reconveyance in favour of the plaintiff in terms of document Ex. 25 dated May 29 1947 on payment of Rs. 2500/and further directed him to hand ever physical possession of the property to the respondent-plaintiff. The defendant who claims to be a sitting tenant from in before the execution of the first document has now invoked the jurisdiction of this Court under sec. 100 of the Code of Civil Procedure by way of the present second appeal.