DAL BAHADUR Vs. RATNA KUMARI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 11-6-1980 of the District Judge, Sikkim at Gangtok, whereby he decreed the suit of the plaintiff-respondent and passed a decree against the defendants declaring the plaintiff to be the owner of the suit-property as well as for delivery of the vacant possession of the suit premises by the defendant to the plaintiff. By the same judgment and decree, a sum of Rs. 1,200/- along with the cost of Rs. 1,000/- were also awarded to the plaintiff.

(2.) Being aggrieved by the aforementioned judgment and decree, defendants have come up in appeal to this Court. Shorn of unnecessary details, the facts necessary for the decision of this appeal in a nutshell are that Shrimati Ratna Kumari Basnet, plaintiff. advanced a loan of Rs. 15,000/- to Dal Bahadur Lama and got a "dik Bandak" mortgage-deed, Exhibit P-21, registered in her favour on 6th Jan. 1958. One of the conditions of the mortgage was that mortgagee will redeem the property after paying the principal amount plus the interest within two years failing which it will be open to the mortgagee to purchase the mortgaged property on the value to be assessed by the Panchas. The defendant obtained a loan of Rs. 8,300/- on 7-10-1962 and executed a document Exhibit P-22. The accounts were settled and the amount of Rs. 35,075/- was found due against Dal Bahadur Lama on 17-7-1964, who executed a sale deed, Exhibit P-1. The consideration was comprised of Rs. 15,000/- mortgage amount, interest Rs. 11,775/- and Rs. 8,300/- unsecured loan. On the same day, document Exhibit P-2 indicating the delivery of possession of the sale property to the purchaser was executed. Besides that, Exhibit P-3, Kut Cultivation document, and Exhibit P-4 were also executed. Exhibit P-4 is a mutual agreement deed, whereby the purchaser agreed to redeliver the suit-property to the defendant in case he returns back the consideration of sale within three years to the purchaser. It was also agreed that if any improvement is made expenditure incurred by the purchaser will also be paid and in case he fails to pay the consideration of sale to the purchaser, he will lose the right of return of the sale property. The case of the plaintiff in the trial Court was that she took possession of Plot No. 71 and she allowed the defendant to live in the house which was standing on plot No. 70 as well as allowed him to retain the possession of Plot No. 72. A house costing Rs. 45,000/- was constructed by her on Plot No. 71 and the same was delivered by the plaintiff to her daughter and son-in-law for residential purposes. Though the defendant failed to pay the amount of Rs. 35,075/- within the stipulated time, yet he refused to deliver the vacant possession of the house as well as that of Plot No. 72. As such, she filed the suit out of which the present appeal arises in the Court of the District Judge at Gangtok, against Dal Bahadur Lama and others. The plaint was ordered to be returned as it was undervalued. Thereafter, she filed another amended plaint on 27-3-1974 which was registered on 2-4-1974 and it was directed that it may be read along with the previous plaint. The defendant No. 1 failed to appear and ex parte proceedings were taken against him. The defendant No. 3, eldest son of defendant No. 1, filed a written statement. He denied the plaintiff's allegation. The case set up by him in the lower Court was that the sale deed, Exhibit P-1 was not intended to transfer ownership rights. It was executed as security against the loan taken by the defendant No. 1. There was no delivery of possession. Defendants were in actual physical possession of the suit-property. In fact, the whole transaction was a mortgage with conditional sale, which is apparently evident from the mutual agreement, Exhibit P-4. The defendant paid the amount of Rs. 20,000/- to the plaintiff on 17-12-1966 vide receipt, Exhibit D-3, and the remaining amount of Rs. 15,075/-was adjusted against Plot No. 71 and from 17-12-1966, the plaintiff became the absolute owner of that plot. The suit property, except Plot No. 71, stood redeemed. The kut agreement was sham and as such the question of payment of kut did not arise. In fact, defendant No. 1 was compelled to execute sale deed for non-payment of the alleged loan because under the law, as it stood then, agricultural land could not be sold or transferred in execution of a decree, if by such sale or transfer the said holding would become less than 5 acres in area. The sale deed was executed to circumvent the law and that is why Exhibit 4 was executed on the same day, the intention of the parties was to create a mortgage with conditional sale. Even otherwise, the entire amount was paid in terms of the agreement between the parties and as such the plaintiff was not entitled to get any relief. In the alternative, it was also pleaded that as the suit-property was ancestral property it could not be sold by the defendant No. 1 without the consent of the other coparceners. That the defendant No. 1 used to drink heavily. He signed the sale deed and other documents when he was not in complete senses. The defendant No. 2 also filed a written statement on 20-2-1976 by which she supported the averments made by the defendant No. 3. On the pleadings of the parties, following issues were settled :-1. Whether the transaction of sale was not genuine and the consideration thereof was any loan advanced by the husband of the plaintiff to defendant No. 1 previously?2. Whether defendant No. 1 had paid back or refunded Rs. 20,000/- to the plaintiff towards the consideration of the sale deed under any agreement and thereby brought the sale transaction to an end?3. WHETHER there was any agreement relating to the remaining amount of the sale consideration? If so what were its terms?4. WHETHER defendant No. 1 had continued to remain in possession of the property in suit in his own right as its owner?5. WHETHER the suit is barred by acquiescence, waiver or estoppel?6. WHETHER the property in suit was ancestral of defendants 1 and 3 and defendant 1 had no right to sell the same?7. WHETHER the suit is bad for misjoinder of parties?8. WHETHER the plaintiff is entitled to any amount of kut? If so what?9. RELIEF to which the plaintiff is entitled?additional Issue10. A. Whether the suit as framed is maintainable?

(3.) The plaintiff, in support of her case, examined PW 1 Shri H. B. Basnet, husband of the plaintiff, PW 2 Ratna Kumari Basnet, plaintiff herself, PW 3 H. B. Pradhan, scribe of the document and PW 4 Mohan Basnet, son-in-law of the plaintiff. She also placed reliance on Exhibit 1 to Exhibit 28. The defendants, in support of their case, examined DW 1 Surendra Lama, DW 2 Shrimati Mani Moktan, DW 3 Shri J. T. Densapa, former Secretary to the Chogyal and produced document Exhibits D-1 to D-16. The learned Judge, after recording the evidence and giving due consideration to the arguments advanced before him, decreed the suit of the plaintiff as already mentioned above. Hence this appeal.