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Second Appeal No. 164 of 1970, decided on 20th December, 1982.

--- S. 58.(C)‑‑Sale‑Sale of land‑Transaction whether‑sale or mortgage‑Tests for determination‑Neither documents nor outer evi dence establishing that relationship of debtor and creditor‑ existed between parties before or at time of execution of documents; no evidence showing intention between parties to create a mortgage preceding sale; vendor failing to establish that price paid was not fair market price; possession of property transferred to vendee and no covenant in any document for payment of interest by vendee ; short period of two years shown in sale‑deed indicating that intention of parties was not to create a mortgage‑Held, such transaction was a sale and not mortgage.

Haji Allah Anda and another v. Sandrangmal and another P L D 1967 Kar. 859; Janat v. Peer Bux P L D 1972 Kar. 336; Ansar Ali and others v. Muhammad Ismail and others 1968 S C M R 302 and Ganu v. A. Jabbar and others P L D 1959 Dacca 293 ref.

M. G. Dastgir for Appellant.

Niazy A. Khaliq for Respondent.

Date of bearing: 10th November., 1982.

The appellant filed a ‑suit for redemption of land which he bad allegedly mortgaged to respondent No. 1. According to the appellant by a Registered Deed dated 16th October, 1956 he executed mortgage by conditional sale in respect of 24 ghuntas of land for a consideration of Rs. 200 and again by another registered deed dated 12th December. 1961 he m6rtgaged 16 ghuntas of land to Respondent No. 1 for Rs. 300. On execution and registration of these deeds the possession of land was delivered to respondent No. 1 and he continues to be in possession. The appellant offered to pay Rs. 500 to the respondent No. 1, and asked him to deliver possession of land but the respondent No. 1 refused and there fore, a suit was filed which was decreed. However, in appeal the decree passed by the learned trial Court has been set aside and the suit has been dismissed.

In the written statement the respondent has denied that the appel lant had created mortgage by conditional sale. It has been pleaded that both the transactions were conditional sale and as the appellant failed to pay the money within the specified period the sale has become absolute. It has been stated that the respondent No. 1 had paid Rs. 600 merely to avoid litigation and complications.

The main question for consideration is whether two ‑documents namely. Exhs. 18 and 19 were sale with condition of repurchase or a mort gage by conditional sale. Both the documents translation of which has been produced by the learned counsel for the appellant and have been accepted by the learned counsel for the respondent are reproduced hereunder :‑

Original on stamp‑paper of Rs. 4.

Allahdad Loung 16‑10‑1956

Presented in the office of Sub‑Registrar Khairpur, on l6tlx October, 1956 at 10‑00 a. m.

Registration fee Rs. 4‑00.

Copying fee Rs: 4‑02.

Sd/‑ Illegible.

Sub‑Registrar Khairpur

Condition sale 9f land 0.24 Ghuntas for Ks. 200,

1, Qutubuddin son of Chhuttal, aged about 55 years caste Phulpotos, occupation cultivation village Tandoshah Taluka Kotdiji do hereby execute that I have got land in Delr Tando No. 337)3‑2‑2 on Mirwah., which is my ancestral property. It ‑has not been purchased from any non‑Muslim after 1st March, 1947.

Boundaries of the land

East.‑Executant.

West.‑Water‑Course.

North.‑Allah Bux.

South.‑Land of Executant.

Now I do hereby sell out 0‑24 out of survey No. 33713‑22 the bounda ries where are mentioned above from north to east for a sum of Rs. 200 (in words two hundred only) to Allahdad son of Loung Soomro, resident of Tandoshah taluka Kotdiji for a, period of 2 years from today upto 15th October, 1958 with condition. I have handed over the possession to him, He will get the land cultivated and will appropriate the produce and will pay the land‑revenue. During the aforesaid period I will pay the con sideration amount to the vendee and will get the land redeemed and will take the possession of the land back from him. In case of my default this sale‑deed will be treated as sale‑deed for absolute sale, for which I. shall raise no objection. Prior. to this, this land is free in all respects and is not under any encumbrances, .for which I am responsible. . I have received the consideration amount in cash and will not raise any objection I, have therefore, executed this sale‑deed for conditional sale in favour of the vendee dated 16th October, 1956. '

(Sd.) Qutubuddin Executant.

Witnessed by :‑Qaim‑Qeri son of Muhammad Siddiq caste Bhand, resident of Sayyed.

Witnessed by :‑Hussain Bux son of Bachal caste Sheikh, resident of Gambeer, Taluka Khairpur.

Written by Ameer Hussain Lugman. Executant admitted to have received the consideration amount and sold the land conditionally.

Dated :6th February, 1956.

Executant Qutubuddin, Chuttal Phulpoto, 55 years, cultivator Tando shah Taluka Kot Diji admitted to have executed this sale‑deed and received the consideration amount and he affixed the sign.

Dated 16th October. 1956:

Witnessed by

Wadero Mukhan Khan Ba.chal Khan, Pario village Tandosbah identifies the exeoutant. He is known to me:

Dated 16th October, 1956.

(Sd.)

Witness.

Note.‑I have (executed this sale‑deed. The sale is conditional I have not arranged for the amount within the period, therefore, I myself have withdrawn. I have got no objection if the Khatta is transferred in the name of Allahbad Dakhan.

Before Witness.

(Sd.) Illegible

19‑3‑60

(Sd.) Muhammad Panjal Ali Bux Bugio.

(Sd.) Illegible.

Sub‑Registrar.

Kot Diji. .

Registered in book No. I volume No. 6, at Serial No. 704, from page 219 to 220. Dated 16th October., 1956.

(Sd.) Illegible.

This is to certify that out of survey No. 33'313.22 measuring 2‑313 acre in Deb Tando Shah belongs to Khatedar Qutub Phulpoto. In the above survey No. there are 2‑28 (two acre twenty‑eight Ghuntas) in his Khatta, out of which he sells out (paper‑torn) Ghuntas to vendee Allahdad Soomro, who has got land in the same Deb. Khattedar Qutub has got in all 4.39 acre of land in leis Khatta, 28th October, 1961.

Sd. Tapedar Kotdiji.

Original on Stamp Paper of Rs. 7.

Allahdad son of Loung Soomro dated 3rd Novembar, 1961.

Presented in the office oaf Sub‑Registrar, Khairpur on 12th November, 1961 at 12.110 noon.

Registration fee Rs. 6.00,

Copying fee Rs. 3.20

Endorsement fee Re. 0.25

(Sd.) .Sub‑Registrar.

Kotdiji

(Sd.) Al.lahdad.

Sale‑deed regarding conditional sale measuring 0.16 acre, for Rs. 300.

It has not been purchased from any non‑Muslim after lst March, 1947, situated in Deb Tando Shah Taluka Kot Diji Sub‑District and registration district Khairpur. The executants has. not in all 4‑39 acre of the land in this Deb. Out of which 0‑16 Ghuntas are being sold and thus there remains 4‑23 acre of land in balance. The vendee has also got the land in this Deh, therefore, M. L. B. 64‑A shall not be violated, and in case 3t is declared anywhere (words obliterated) I do hereby execute of my own tree will with sound health and mind without taking intoxication that I executants Qutub son of Chhutto caste phulpoto aged about 60 years, occupation cultivation resident of Tando Shah Taiuka Kot Diji do hereby execute that I have got agricultural land bearing Survey No. 337/3.25 in Deb Tando Shah Taluka Kot Diji out of which A‑16 Ghuntas of land are on source of water supply towards west on Mirwah, now I do hereby sell out this land with all rights and interests internal as well as external rights, rights of the sources of water supply, channels, etc. Conditionally for Rs 300 (in words three, hundred) to Vendee Allahdad son of Loung Soomro resident of Tando Shah Taiuka kot Diji. l have handed over the possession to him. I have dispossessed myself from this land and have relinquished all rights from it. In case any of my relative or any stranger raised any .claim or dispute, I the executants shall be responsible for the same and will not give any trouble to the vendee. I have received full consideration amount in cash in advance and have appropriate the same I will not claim this amount again and will not raise any objection to have received the consideration less or more. I have sold this land conditionally alter taking full consideration amount and will pay the entire consideration amount received by me for conditional sale to the vendee within a period morn 12th December 1961 to 11th December, 1963 and will get the land redeemed from conditional sale. In case I fail to pay the entire consideration amount within the period, this sale‑deed will be treated as sale‑deed for absolute safe. I have, therefore, executed this sale‑deed so

as to remain as permanent record, dated 12th December, 1961.

Sd. Of Executant.

Witnessed by: Dhain Bux Khan son of Hussain Bux Khan, caste Mughal, resident of Dubar, Taluka Khairpur.

Sd. Dhain Bux.

Witnessed by: Haji Khudar Bux Khan son of Sahib Bino Khan Memon, resident of Khairpur.

Sd. Khuda Bux. .

Witnessed by Ghulam Rasool. Stamp Vendor Khairpur as per instructions of the executants. He sold the land conditionally and admitted to have received the consideration in cash. 12th December, 1961.

Qutub, Chutto, executants,

Phulpoto, 60 years, village Tandoshah Taluka Kot Diji admits execu tion, he is illiterate:

Allahdin Ahmed Khan, Chano, Shop Keeper, Bungalow, Kot Diji.

This sale‑deed was registered in Book No. 1, Volume No. 40 at S.U.O.162, from pages Nos. 188 to 191 on 24th February.

Sd. Allahdin.

Dated 12th February.

Sd. Sub‑Registrar. Kot Diji.

(Sd.) Sub‑Registrar,

Kot Diji.

Mr. Dastagir the learned counsel for the appellant has contended that the appellant had executed these documents as mortgage and even offered to pay back the money which was not accepted the respondent No. 1. According to him these documents are covered by the definition of mortgage by additional sale, as provided by section 58 (c) of the Transfer of Property Act. The learned counsel for the appellant contended that as the consideration was inadequate the transactions cannot be treated as sale. The First Appellate Court has considered the evidence of the parties at length and has cone to the conclusion that the appellant has failed to establish that the consideration was not proper‑and adequate. In this regard reference has been made to the evidence of P.W. l and P.W. 2. These witnesses have deposed about the sale of property at higher rates but no documentary evidence of such transactions was produced. Mere oral statement to the effect that there were transactions at higher price cannot be accepted. Before coming to the test laid down by the autho rities for determination whether document embodies sale or mortgage it is pertinent to mention that so far Exh. 18 is concerned it is an admitted position that it bears an endorsement dated 19th March, 1969 made by the appellant before the Sub‑Registrar where it is stated that as he_ has not been able to a‑range for the amount within the specified period be does not have any right and he has no objection if the Khata is trans ferred in the name of respondent No. 1. This clearly indicates that after 4 years of the execution of tie deed appellant voluntarily accepted it :is a sale and confirmed it by this endorsement. The appellant has not denied that he has not signed this. endorsement.

Now coating to the test laid down, reference can be made to Haji Alldh Anda and another v. Saarangmal and another P L D 1967 Kar. 859 where after discuss ing a host of decisions the following principles ware laid down .

"review of the decisions referred to above and other decided cases (which are numerous and which it is not necessary to refer to) shows that the following tests may be usefully employed to determine whether a transaction is a sale with condition of repurchase or mortgage :‑‑

(i) Whether the relationship of debtor and creditor existed between the parties before or at the time of the alleged sale;

(ii) Did the intention to create a mortgage precede the alleged sale;

(iii) Was the price, paid by the purchaser fair market price ;

(iv) Was the possession of the property transferred to the purchaser ;

(v) Is, there a covenant for the payment of interest by the purchaser ;

(vi) Whether agreement of 'repurchase was made at the time of sale or some time thereafter (the former evidencing the intention to create mortgage and the latter the intention of repurchase only) ;

(vii) Whether a short or long period of repayment is stipulated a short period evidencing the intention to sell and long period indicating a mortgage)."

This test was followed in the case of Janat v. Peer Bux P L D 1972 Kar. 336. In Ansar Ali and others v. Muhammad Ismail and others1968 S C M R 302 almost the same tests were laid down. Now putting these documents to these tests it clear that neither by these documents nor by evidence it is establish that the relationship of Debtor and Creditor existed between the parties before or at the time of the execution of these documents. Nor there is any evidence to show, that there was any intention between the parties to create a mortgage preceding the sale. The appellant has not been able to establish that price paid by the respondent No: i was not a fair market price. The documents provide and it is admitted by the appellant that the possession of the property was transferred to the respondent No. 1 and that there is no covenant in any document for payment of interest by the respondent No. 1. Mr. Dastagir has contended, that the respondent No. 1 was reaping the harvest and that was the interest which was charged by him. There is no such provision anywhere to support this contention. The documents provide that the possession was deliver ed to the respondent No. 1 who yeas entitled to reap the harvest and enjoy all profits arising out of it but no provision has been added to make respondent No. 1, accountable for the income of the property. The period provided in both these documents was two years. This is a short period indicating the intention to sell the property.‑ In the case of Ganu v. A. Jabbar and others P L D 1959 Dacca 293 a sale‑deed for a period of six years was held to show sale and not mortgage. In the present case also the time is short which according to the decided cases does indicate that the intention of the parties was not to create mortgage. In Ansar Ali v. Ismail and others 1968 S C M R 302 the aforestated tests were held to be as "good criteria for ascertaining whether the parties intended the transaction to be mortgage or a sale." As discussed above on application of the criteria laid down by the authorities, the appellant has not been able to establish that the two transactions were mortgaged The appeal is, therefore, dismissed with costs.

S. Q, Appeal dismissed.

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