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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.5576-5577 OF 2017 (ARISING OUT OF SLP (C) Nos.9582-9583/2013)

Sri Srinivasaiah    ...Appellant(s)           

VERSUS

H.R. Channabasappa       (since dead) by his LRs  and Ors.               ….Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) These  appeals  are  filed  by  defendant  No.2

against the order dated 18.04.2012 passed by the

High Court of Karnataka at Bangalore in R.P. No.

387 of 2011 and the final judgment and order dated

25.07.2011 in R.S.A. No.1253 of 2005 by which the

High  Court  allowed  the  appeal  filed  by  the

respondents herein and set aside the judgment and

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decree dated 18.02.2005 passed by the Additional

Civil  Judge  (Sr.Division),  Ramnagaram  in  R.A.

No.35  of  2000  and  restored  the  judgment  and

decree dated 30.06.2000 passed by the Civil Judge

(Jr.Division) Kanakapura in O.S. No.152 of 1987.   

3) We  herein  set  out  the  facts,  in  brief,  to

appreciate the issues involved in these appeals.

4) The  appellant  is  defendant  No.2  whereas

respondent Nos. 1 to 5 are the legal representatives

of original plaintiff and respondent Nos. 6 to 11 are

the legal representatives of original defendant No. 1

in the civil suit out of which these appeals arise.

5) The  original  plaintiff  -  M.N.  Channabasappa

was the owner of the suit land (described in detail in

schedule to the plaint). He fell in need of money in

1969.  He,  therefore,  approached  the  original

defendant  No.1  -  B.M.  Narayana  Shetty  and

requested him to give some money to overcome the

financial  crisis  faced  by  him  during  that  time.

Defendant  No.1  agreed  and  accordingly  gave

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Rs.1500/- to the plaintiff by way of loan.  In order to

secure the repayment, the plaintiff on request made

by  defendant  No.1  executed  a  document  on

28.07.1969 (Ex-P-1) in favour of defendant No.1 and

got  the  same  registered  with  the  sub-Registrar,

Kanakpura.  Defendant  No.1  was  also  placed  in

possession  of  the  suit  property  pursuant  to  the

document.

6) On 30.06.1987, the plaintiff sent a legal notice

to defendant No.1 and offered to repay Rs.1500/-  to

him with a further request to redeem the suit land

in his favour in terms of the conditions of Ex. P-1.

The  plaintiff  contended  that  the  Ex.P-1  was

essentially  a  mortgage  deed  executed  by  him  in

favour  of  defendant  No.1  by  way  of  security  for

repayment  of  the  loan given to  him by defendant

No.1. The plaintiff  contended that  in terms of  the

conditions of Ex.P-1, he delivered possession of the

suit land to defendant No.1 for a period of 5 years to

enable defendant No.1 to reap the fruits of the suit

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land and on repaying Rs.1500/- within five years,

restore the possession of the suit land by redeeming

the mortgage.

7) Defendant No.1 sent a reply to the notice on

13.08.1987.   He  denied  the  plaintiff's  offer  and

contended  therein  that  the  document  dated

28.07.1969  (Ex.P-1)  is  not  a  "mortgage  deed"  as

described by the plaintiff in the notice but it is in

substance a "sale deed" out and out in relation to

the suit land executed by the plaintiff in his favour

for  Rs.1500/-  pursuant  to  which  defendant  No.1

was also placed in possession of  the suit  land as

owner.   It  was contended that  defendant No.1,  in

the meantime, on 25.09.1986 sold the suit land to

the appellant herein (defendant No.2) by executing

the deed of sale for consideration.

8) This gave rise to filing of the Civil Suit by the

plaintiff  on  19.09.1987  against  the  original

defendant  No.1  and the  appellant  herein  who,  as

mentioned above, is the purchaser of the suit land.

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The suit was filed in the Court of Civil Judge (Jr.

Division) at Kanakapura for claiming reliefs namely-

(1) redemption of the mortgage of the suit land in

plaintiff's favour  (2) for a declaration that the sale

made by   defendant No.1 of the suit land in favour

of defendant No. 2 vide sale deed dated 25.09.1986

is bad in law and not binding on the plaintiff and (3)

for recovery of possession of the suit land from the

defendants.  

9) It  was alleged that  the Ex.P-1 is  a mortgage

deed pursuant to which plaintiff had delivered the

possession of the suit land to defendant No.1 for a

period of 5 years on taking loan of Rs.1500/- from

defendant No.1.   It was alleged that the mortgage

was created by the plaintiff of his suit land in favour

of defendant No.1 only by way of security to secure

payment of loan amount and in terms of condition

of the deed, defendant No.1 was to enjoy the fruits

of suit land for a period of 5 years and within the

said period, the plaintiff was to return Rs.1500/- to

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defendant No.1 and, in turn, defendant No.1 was to

redeem the mortgage to the plaintiff. It was alleged

that  the  plaintiff  offered  Rs.1500/-  to  defendant

No.1  but  he  declined  and  on  the  other  hand

asserted his right of  ownership over the suit land

and hence need to file the civil suit arose and seek

aforementioned  reliefs  against  the  defendants  in

relation to the suit land.

10) Defendant No.1 filed the written statement and

denied the plaintiff's claim. He reiterated his stand

taken by him in reply to legal notice. It was alleged

that  document  in  question  (Ex.P-1)  is  not  a

mortgage deed but in substance a sale deed on the

strength  of  which  he  has  become  the  exclusive

owner.  It was alleged that since the plaintiff failed

to  come  forward  to  pay  the  loan  amount  to

defendant No.1 on the expiry of 5 years, he lost the

right to get the suit land restored in his name. It

was alleged that  defendant  No.1 has  already sold

the suit land to defendant No.2 on 25.09.1986 by

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sale  deed  for  consideration.  A  plea  of  suit  to  be

barred by limitation was also raised.

11) The Trial Court framed issues on the basis of

pleadings. The parties adduced evidence. During the

pendency of the suit, both plaintiff  and defendant

No.1  died  and,  therefore,  their  respective  legal

representatives were brought on record to continue

the lis.  

12) The Trial Court by its judgment/decree dated

30.06.2000 decreed the plaintiff's suit. It was held

that  the  document  dated  28.07.1969(Ex.P-1)  is  a

mortgage by conditional sale and not a sale deed. It

was  held  that  the  plaintiff  is  entitled  to  claim

redemption of the mortgage by paying the mortgage

money to defendant No.1 and seek restoration of the

suit land from the defendants.

13) The defendants felt aggrieved, filed first appeal

before the Additional Civil Judge (Sr.Division) being

R.A.  35/2000.  By  judgment/decree  dated

18.02.2005,  the  first  Appellate  Court  allowed  the

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appeal  and  set  aside  the  judgment/decree  of  the

Trial  Court.  It  was held that  the  document  dated

28.07.1969 (Ex.P-1) is not a mortgage deed but it is

in the nature of a conditional sale deed. It was also

held that the suit is barred by limitation. In the light

of  these  findings,  the  plaintiff's  suit  stood

dismissed.      

14) Felt aggrieved, the plaintiff filed Second Appeal

before  the  High  Court  out  of  which  this  appeal

arises. The High Court admitted the appeal on the

following substantial questions of law:-   

“(i) Whether the interpretation placed by the first Appellate Court as the suit document to hold that it is not a mortgage by conditional sale is proper?

(ii) Whether the finding of the first Appellate Court  that  even  if  it  is  construed  as  a mortgage by conditional sale that the suit is barred by law of limitation is false?”

15) By  impugned  order,  the  High  Court  allowed

the  appeal,  set  aside  the  judgment/decree  of  the

first  Appellate  Court  and  restored  the

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judgment/decree of the Trial Court.  The High Court

held  that  the  document  dated  28.07.1969  is  a

mortgage by way of conditional sale and not a sale

out  and  out.  It  was  held  that  the  suit  was  filed

within time.  It is governed by Article 61(a) of the

Limitation  Act  which  prescribes  limitation  of  30

years when right to redeem accrues. In this case, it

was  accrued on 27.07.1974 whereas the suit was

filed on 19.09.1987.  

16) Against  the  judgment  in  second  appeal,

defendant No.2 filed review petition before the High

Court.  By  order  dated  18.04.2012,  the  review

petition was dismissed.  

17) Against  the  order  in  review petition  and  the

judgment  in  second  appeal,  defendant  No.2  filed

these  appeals  by  way  of  special  leave  petitions

before this Court.

18) Heard Mr.  Shailesh Madiyal,  learned counsel

for  the  appellant  and  Mr.  Trideep  Pais,  learned

counsel for respondents.

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19) The  only  question  involved  in  this  appeal  is

what  is  the  true  nature  of  the  document  dated

28.07.1969 (Ex.P-1). Is it a "mortgage by conditional

sale"  or  a  "sale  out  and  out  with  a  condition  to

repurchase"?

20) This question needs to be answered keeping in

view the requirement of Section 58(c) of the Transfer

of Property Act,1882 (hereinafter referred to as “the

T.P. Act”)  and the law laid down by this Court in

Chunchun Jha vs. Ebadat Ali and Another, AIR

1954 SC 345.  

21) Section 58(c) of the Act reads as under:

“58.  “Mortgage”,  “mortgagor”,  “mortgagee”, “mortgage-money”  and  “mortgage-deed” defined.—

(c) Mortgage by conditional sale.—Where, the mortgagor  ostensibly  sells  the  mortgaged property—  on  condition  that  on  default  of payment of the mortgage-money on a certain date  the  sale  shall  become absolute,  or  on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale  and  the  mortgagee  a  mortgagee  by conditional sale:  

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Provided  that  no  such  transaction  shall  be deemed  to  be  a  mortgage,  unless  the condition is embodied in the document which effects or purports to effect the sale.”

22) In  Chunchun Jha’s case  (supra),  this Court

examined this very question as to what constitutes

"a mortgage by conditional sale or a sale out and out

with a condition of repurchase".  

23) The  learned  Judge,  Vivian  Bose  J.,  in  his

distinctive style of  writing speaking for  the Bench

posed the question as under:  

“This  is  a  plaintiff’s  appeal  in  a  suit  for redemption  of  what  the  plaintiff  calls  a mortgage dated 15-4-1930. The only question for  determination  is  whether  this  is  a mortgage  by  conditional  sale  or  a  sale  out and out with a condition of repurchase. If the former the plaintiff succeeds. If the latter he is out of Court.”

24) His  Lordship  then examined the  question  in

the context of several leading English authorities on

the subject and Section 58(c) of the T.P. Act and laid

down the following test for deciding the true nature

of the document.  This is what His Lordship held:

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“5. The question whether a given transaction is  a  mortgage by conditional  sale  or  a  sale outright with a condition of repurchase is a vexed  one  which  invariably  gives  rise  to trouble  and  litigation.  There  are  numerous decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them. We think that is a fruitless task because two documents are seldom  expressed  in  identical  terms  and when  it  is  necessary  to  consider  the attendant  circumstances  the  imponderable variables which that brings in its train make it  impossible  to  compare  one  case  with another.  Each  must  be  decided  on  its  own facts. But certain broad principles remain.

6.  The  first  is  that  the  intention  of  the parties  is  the  determining  factor:  see Balkishen Das v. Legge. 22 Ind. App.58 (P.C.) (A).  But there is nothing special about that in this class of cases and here, as in every other  case  where  a  document  has  to  be construed, the intention must be gathered, in the first place, from the document itself.  If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is  the legal  effect  of  the  words  which they used. If,  however, there is ambiguity in the language employed, then it is permissible to look  to  the  surrounding  circumstances  to determine what was intended.  

As Lord Cranworth said in Alderson v. White (1858) 44 E.R.924 at p. 928 (B)-

“The  rule  of  law  on  this  subject  is  one dictated  by commonsense;  that  prima facie an absolute conveyance, containing nothing to  show  that  the  relation  of  debtor  and creditor is to exist between the parties, does not cease to be an absolute conveyance and

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become  a  mortgage  merely  because  the vendor stipulates that he shall have a right to repurchase…. In every such case the question is,  what,  upon  a  fair  construction,  is  the meaning of the instruments?” Their Lordships of the Privy Council applied this  rule  to  India  in  Bhagwan  Sahai  v. Bhagwan  Din3  and  in  Jhanda  Singh  v. Wahid-ud-din, AIR 1916 P.C. 49 at p.54 (D).  

7. The converse also holds good and if, on the face of it, an instrument clearly purports to be a mortgage it cannot be turned into a sale by  reference  to  a  host  of  extraneous  and irrelevant  considerations.  Difficulty  only arises in the border line cases where there is ambiguity. Unfortunately, they form the bulk of this kind of transaction.

8. Because of the welter of confusion caused by  a  multitude  of  conflicting  decisions  the legislature stepped in and amended Section 58(c)  of  the  Transfer  of  Property  Act. Unfortunately  that  brought  in  its  train  a further conflict of authority. But this much is now  clear.  If  the  sale  and  agreement  to repurchase  are  embodied  in  separate documents, then the transaction cannot be a mortgage  whether  the  documents  are contemporaneously executed or not. But the converse does not hold good, that is to say, the  mere  fact  that  there  is  only  one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of  repurchase is  embodied in the  document  that  effects  or  purports  to effect  the  sale,  then  it  is  a  matter  for construction  which  was  meant.  The legislature has made a clear cut classification and excluded transactions embodied in more than  one  document  from  the  category  of mortgages,  therefore  it  is  reasonable  to suppose  that  persons  who,  after  the amendment,  choose  not  to  use  two documents, do not intend the transaction to

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be  a  sale,  unless  they  displace  that presumption by clear and express words; and if the conditions of Section 58(c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage.”

25) Keeping  in  mind  the  requirement  of  Section

58(c)  of  the  T.P.  Act  and  the  test  laid  down  in

Chunchun Jha’s case  (supra), let us examine the

nature of Ex.P-1 which reads as under:

“This  Deed of  Conditional  Sale  is  made  on this Twenty eighth day of July, Year-Nineteen Sixty  nine,  by  M.N.  Channabasavaiah,  s/o Patel Nanjappa, resident of Kasaba Maralwadi village,  Maraiwadi  Hobli,  Kanakapura  Taluk to  B.M.  Narayan  Shetty  s/o  Bhoopalam Munirama  Shetty  at  Kasaba  Maralwadi Village, maralwadi Hobli,  Kanakapura Taluk. Witnesseth, to meet my financial necessities such as agricultural expenses, to clear loans and to meet domestic family expenses, today I am selling the schedule property for a sale consideration  of  Rs.1,500/-  (Rupees  one thousand five hundred) received in cash.  The possession  of  the  schedule  property of  this Conditional  sale  has  been  delivered  to  you today only.  From now onwards you shall pay to  the  Government  all  taxes  and  other payments  and  shall  peacefully  enjoy  the schedule  property  of  this  Conditional  sale according to your wish.  In the presence of the witnesses,  this  Conditional  sale  deed,  I have  received  the  entire  sale  price  and  no arrears  are  pending  payable  to  me  in  this regard.   The  schedule  property  of  this Conditional  sale  has  not  been  alienated earlier to anyone in any manner either by my ancestors or by myself.  In the event of any such litigation arises, I will clear the same at

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my own expenses.  There is no attachment of any  minor  claims  or  any  charge  for maintenance exists on the schedule property of this Conditional sale deed.

Within  five  years  from  the  aforesaid date of this Conditional sale deed, I will repay the entire conditional sale price of Rs.1,500/- (Rupees one thousand five  hundred)  to  you and get executed a sale deed from you.  In the event of default, after the said period of five years mentioned in this Conditional sale deed,  then together  with  all  the  privileges, easements,  advantages  and  appurtenances whatsoever  in  or  to  the  schedule  property and every part thereof belonging to or to the said  schedule  property  or  hereinto  before held, used, occupied or enjoyed or known as part  and  parcel  thereof  or  appurtenant thereto  shall  belong  to  you  and  your  legal heirs  forever,  free  from  all  encumbrances, charges,  liens  whatsoever.   Myself  and  my legal  heirs  shall  have  no  manner  of  right, claim, interest or title whatsoever in or upon or in respect of the schedule property.  

SCHEDULE

All  that  piece  and  parcel  of  the  land measuring  Twenty  Eight  Guntas  in  Sy.No. 168 (One hundred and sixty eight) situated at kasaba  Maralwadi  village,  Maralwadi  Hobli, Kanakapura  Taluk,  which  is  my  ancestral property acquired by me by way of partition entered  amongst  myself  and  my  brothers. The schedule land is bounded on: East by : Land belonging to Narasegowda; West by : Lane and water channel; North by : Thothi Inamthi land; South by : Garden land belonging to Vendor;”

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When  we  examine  the  nature  of  document  in

question  (Ex.P-1),  we  are  of  the  opinion  that  the

document  (Ex.P-1)  is  a  mortgage  with  conditional

sale as defined under Section 58 (c) of the T.P. Act.

This we say for following reasons:

26) First, it is not in dispute that the plaintiff was

the  owner  of  the  suit  land.  Second,  the  parties

concluded the transaction in question by executing

one  document  (Ex.P-1).  Third,  the  document

(Ex.P-1)  is  styled as a  "Deed of  Conditional  Sale".

Fourth, it contains a condition that defendant No.1

will be allowed to remain in possession of the suit

property for 5 years and enjoy the fruits of the land

and  that  during  this  period,  the  plaintiff  will  be

entitled to get the suit property re-conveyed in his

name on paying Rs.1500/- by getting the sale deed

executed in his name and obtain possession of the

suit land from defendant No.1.  Fifth, the plaintiff

offered to pay Rs.1500/- to defendant No.1 with a

request to resale the land to him.

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27) In  our  considered  opinion,  the  aforesaid  five

reasons satisfies the third condition of Section 58(c)

of  the  T.P.  Act,  namely,  “on  condition  that  such

payment  being  made,  the  buyer  shall  transfer  the

property to the seller”.  It also satisfies the tests laid

down by this Court in Chunchun Jha’ case (supra),

namely, First, the transaction is concluded in one

document; Second, the document styled as a "Deed

of Conditional Sale" itself contains the condition of

repurchase  on  offering  the  sale  money  without

interest  for  the  reason  that  defendant  No.1  was

allowed to use the land till  the money is not paid

back  to  him  by  the  seller  (plaintiff);  and  Third,

parties’  intention  as  per  terms  of  Ex.P-1  is  also

supported by the evidence which was accepted by

the two Courts - Trial Court and the High Court.

28) In the light of foregoing discussion, we are of

the considered opinion that the Trial Court and the

High Court was right in decreeing the plaintiff's suit

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whereas the first Appellate Court was not right in

dismissing the suit.  

29) In  other  words,  the  reasoning  and  the

conclusion  arrived  at  by  the  Trial  Court  and  the

High Court while holding that Ex.P-1 is a "mortgage

deed by conditional sale" as defined under Section

58(c) of the T.P. Act is just and proper and hence it

deserves to be upheld by this Court.  

30) We also note that the High Court rightly took

note of the law laid down in the case of  Chunchun

Jha (supra) and the requirements of Section 58(c) of

the  T.P.  Act  and  keeping  the  same  in  mind

interpreted Ex.P-1 and came to a right conclusion.

31) Learned  Counsel  for  the  appellant,  however,

placed  reliance  on  the  decision  in  Vanchalabai

Raghunath  Ithape vs. Shankarrao  Baburao

Bhilare,  (2013) 7 SCC 173 and contended that the

law laid down therein supports his contention that

the Ex.P-1 is a sale out and out.

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32) We have perused the decision in Vanchalabai

Raghunath  Ithape’s  case (supra).  First,  we  note

therein that it did not take note of law laid down by

this  Court in the case of  Chunchun Jha (supra),

which is a decision of larger Bench (4 Judge Bench);

Second, we further find that there the High Court

had affirmed the  findings  of  fact  recorded  by  the

Courts below in paras 19, 20, 25, 26 and 29 which

are reproduced in para 9 of the decision at pages

176 and 177 wherein it is mentioned in para 26 of

the first  appellate  order  "Admittedly there  was no

relationship  of  debtor  and  creditor  between  the

parties”.  This  finding  of  fact  was  affirmed  by  the

High  Court,  which,  in  turn,  was  upheld  by  this

Court; Third, such is not the case here because in

the case at hand, the plaintiff came out with a case

that he took loan of Rs.1500/- from defendant No.1

and to  secure  the  payment  of  loan,  a  conditional

sale  deed  was  executed  in  the  form  of  mortgage

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deed.   It  was  not  so  in  the  case  of  Vanchalabai

Raghunath Ithape (supra).

33) It is for these three reasons, we prefer to rely

upon the law laid down by the earlier larger Bench

in  the  case  of  Chunchun  Jha (supra)  which

continues to hold the field to guide us as to how to

examine the true nature of the document such as

the one involved in the case (Ex. P-1).

34) This  takes  us  to  the  next  question  as  to

whether the High Court was justified in holding that

the suit was filed within limitation?  In our opinion,

the High Court was right.  The case at hand would

be governed by Article  61(a)  of  the Limitation Act

which provides a limitation of  30 years when the

right to redeem or to recover possession accrues to

the mortgagor.  Ex.P-1 is of dated 28.07.1969.  In

terms  of  the  conditions,  five  years  expired  on

27.07.1974.  The plaintiff filed a suit on 19.09.1987.

It was thus filed within 30 years.

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35) Now coming  to  another  question  though not

pressed in service by the parties but, in our view,

does arise in the case as a result of the plaintiff's

suit having been decreed against the defendants by

the Trial Court and affirmed by the High Court and

lastly, by this Court.

36) The question arises in this way. The effect of

the decree passed in this case is that the original

plaintiff,  now  represented  by  his  legal

representatives (respondent Nos.1 to 5) are required

to return Rs.1500/- to the original defendant No. 1,

now  represented  by  his  legal  representatives

(Respondent Nos.6-11) and in turn, defendant No. 1

(respondent  Nos.6-11)  are  required to  execute the

sale  deed  by  retransferring  the  suit  land  to  the

plaintiff(respondent Nos.1-5)  and restore them the

possession  of  the  suit  land.  Since  during  the

pendency of the litigation, original defendant No. 1

transferred the suit land to the appellant (defendant

No.  2)  for  Rs.30,000/-,  therefore,  he,  as  a

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subsequent  transferee  of  the  suit  land,  has  now

steped  into  the  shoes  of  original  defendant  No.

1(respondent Nos.6-11).

37) Yet  another  effect  of  the  decree  is  that  the

transaction of sale of suit land between defendant

No.  1  and  defendant  No.  2  vide  sale  deed  dated

25.09.1986  is  declared  bad  in  law  and  stands

nullified. As a consequence thereof, defendant No. 2

(appellant  herein),  who  had  paid  a  sum  of  Rs.

30,000/-  towards  sale  consideration  to  defendant

No.  1  for  purchase  of  the  suit  land  has  become

entitled  to  receive  back  the  entire  sum  from

defendant No. 1 in the absence of any contract to

the contrary in this behalf between the parties. The

reason being that once the sale is declared bad, the

transaction  of  sale  fails  and,  therefore,  the  seller

(defendant  No.  1)  has  no  right  to  retain  the  sale

consideration to himself and has to refund the sale

consideration  to  the  buyer  (defendant  No.  2)[See

Section 65 of the Indian Contract Act].

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38) The  question  arose  before  this  Court  in  the

case of  Durga Prasad & Anr. vs Deep Chand &

Ors.,  AIR 1954 SC 75 as  to  what  form of  decree

should be passed in the case of specific performance

of contract where the suit property is sold by the

defendant,  i.e.,  the  owner  of  the  suit  property  to

another  person  and  later  he  suffers  a  decree  for

specific  performance  of  contract  directing  him  to

transfer the suit property to the plaintiff in term of

contract.

39) The  learned  Judge-Vivian  Bose,  J.  examined

this  issue  and  speaking  for  the  Bench  in  his

inimitable style of writing, held as under:

“Where there is a sale of the same property in favour of  a prior  and subsequent transferee and the subsequent transferee has, under the conveyance  outstanding  in  his  favour,  paid the purchase-money to the vendor, then in a suit for specific performance brought by the prior  transferee,  in  case  he  succeeds,  the question  arises  as  to  the  proper  form  of decree in such a case.  The practice of the Courts  in  India  has  not  been  uniform  and three  distinct  lines  of  thought  emerge. According to one point  of  view,  the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone.

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A  second  considers  that  both  vendor  and vendee should join, while a third would limit execution  of  the  conveyance  to  the subsequent  purchaser  alone.   According  to the Supreme Court, the proper form of decree is  to  direct  specific  performance  of  the contract  between  the  vendor  and  the  prior transferee  and  direct  the  subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior  transferee.   He  does  not  join  in  any special  covenants  made  between  the  prior transferee and his vendor;  all  he does is to pass on his title to the prior transferee.”

40) We, therefore, consider it just and proper and

with a view to end this litigation between the parties

which is pending since 1969 and also to balance the

equities amongst the parties that defendant No. 1

through  his  legal  representatives  (Respondent

Nos.1-5)  would  return  a  sum  of  Rs.30,000/-  to

defendant No. 2 (appellant herein).  This direction

we  give  by  taking  recourse  to  our  powers  under

Article  142  of  the  Constitution  of  India  to  do

complete  justice  between  the  parties  to  the  lis

because we do not want another round of litigation

to go on for years in future between the defendants

inter se for recovery of this amount.

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41) In the light of foregoing discussion, the appeals

are  disposed  of  by  modifying  the  judgment  and

decree as under:  

1. The  plaintiff  (respondent

Nos.1-5)  Shall  deposit  a  sum  of

Rs.1500/-  in  the  executing  Court  for

being paid to the defendant (Respondent

Nos.6-11)  within  3  months  as  an  outer

limit.

2. Defendant  No.1  (Respondent

nos.6-11)  shall  deposit  in  the  executing

Court  a  sum  of  Rs.30,000/-  for  being

paid  to  the  appellant  (defendant  No.  2)

within 3 months as an outer limit

3. Defendant  No.1(Respondent

Nos.6-11)  and  the  appellant(Defendant

No.2) will jointly execute the sale deed in

plaintiffs’  (respondent  Nos.1-5)  favour

and  hand over the possession of the suit

land  to  the  plaintiffs  (Respondent

Nos.1-5)  simultaneously  and  then  will

withdraw the money deposited for  them

in Court.

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42) The executing Court will ensure completion of

proceedings  within  the  time  fixed  and will  record

due  satisfaction  of  the  decree  in  accordance  with

law. In  case  of  any  default,  the  parties  will  be

entitled  to  put  the  decree  in  execution  for

enforcement of the terms of the decree of this Court

amongst the defaulting parties.

43) In  view  of  foregoing  discussion,  the  appeals

stand disposed of.

               ………...................................J.

[R.K. AGRAWAL]

                             …... ……..................................J.   [ABHAY  MANOHAR  SAPRE]

New Delhi; April 25, 2017  

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