BEFORE THE HON’BLE DISTRICT COURT

AT RANCHI

Under Section 96 of the Civil Procedure Code, 1908

CIVIL APPEAL NO. ________/20

IN THE MATTER OF:

Smt. Kusum Kumari.........................................................................................................Appellant

Versus

Mr. Syed Rahman Ali.................................................................................................... Respondent

MEMORANDUM ON BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSEL OF THE RESPONDENT

Counsel for the Respondent:

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Memorial on behalf of the Respondent
 CONTENTS

LIST OF ABBREVIATIONS ............................................................................................................

INDEX OF AUTHORITIES..............................................................................................................

LIST OF CASES ............................................................................................................................

BOOKS REFERRED .....................................................................................................................

WEBSITES CONSULTED ...........................................................................................................

STATEMENT OF JURISDICTION..................................................................................................

STATEMENT OF FACTS ................................................................................................................

QUESTIONS PRESENTED ..............................................................................................................

ISSUE I .........................................................................................................................................

ISSUE II .........................................................................................................................................

SUMMARY OF ARGUMENTS .......................................................................................................

ARGUMENTS ADVANCED ...........................................................................................................

PRAYER ............................................................................................................................................

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 LIST OF CASES

1. Abdul Rahman v. Mt. Bismillah Begum, AIR. (26) 1939 All 539

2. Syndicate Bank v. Estate Officer and Manager, SC 861 (1890) 12 All. 387.

3. Lal Chand Kallu Mal Jain v Atma Rani and Anr., AIR 1960 P& H 444.

4. Tamboli Ramanlal v. Ghanchi Chimanlal, 1992 AIR SCW 1170

5. Khiria Devi v. Rameshwar Rao, AIR 1992 SC 1482.

6. Hakim Singh v Ram Sanehi, AIR 2001 All. 231.

7. Vidhyadhar v. Manikrao, 1999 Indlaw SC 1006.

8. Hans Raj Banga v. Ram Chander Aggarwal, AIR 2005 SC 2384.

9. Khiria Devi v. Rameshwar Rao, AIR 1986 All 270.

10. Tulsi v. Chandrika Prasad,AIR 2006 SC 3359.

11. Puran Singh Sahni v. Sundari Bhagwandas, (1991) 1 SCR 592.

12. Tamboli Ramanlal Motilal v. Ghanchi Chimantal Keshavlal, AIR1992 SC 1236.

13. Pandit Chunchun Jha v. Sheikh Ebadat Ali, 1954 Indlaw SC 145.

14. Bhagwan Sahai v. Bhagwan Din, ILR 1890 All 387

15. Lal Chand Kallu Mal Jain v. Atma Ram and Anr., AIR 1960 P& H 444.

16. Khiria Devi v. Rameshwar Rao , AIR 1992 SC 1482.

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 17. Laxmi Narayan Barnwal v. Jagdish Singh, IR 1991 Pat. 99.

STATEMENT OF JURISDICTION

The respondents most humbly and respectfully submit to the Jurisdiction of this Hon’ble District
Court Under section 96 (1)1 of the Code of Civil Procedure, 1908.

1
Appeal from original decree. - (1) Save where otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original
jurisdiction to the court authorized to hear appeals from the decisions of such court.

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 STATEMENT OF FACTS

 Mr. Akhilesh Kumar and Mrs. Sumeeta Kumari were the owners in possession of the
house, the suit property. They lived in the aforesaid house during their lives and after
their death, Smt. Kusum Kumari, the Petitioner, being the legal heir of them, was
continuously residing in the said house.
 The petitioner’s predecessors in their life time borrowed a loan of Rs. 7,00, 000/- on
interest from one Mr. Bashir Khan S/o Mr. Nazeer Khan on dated 17.06.1993 by
mortgaging the suit property to Bashir Khan with the condition to resale the suit property
to the Predecessors of the Petitioner within the period of five years on the payment of
Rs.7, 00, 000/- with interest to Mr. Bashir Khan and thus, the transaction was ostensible
sale.
 That as the term of 5 years was about to lapse and the loan was not paid back by the
predecessors of the petitioner, one Mr. Syed Rahman Ali, the Respondent No. 01 here
who was closely related to Mr. Akhilesh Kumar and Mrs. Sumeeta Kumari came to their
rescue and paid back the loan of Bashir Khan and got a similar deed (ostensible deed) in
his favour, with a condition to resale the suit property to them within the period of 10
years on repayment of loan amount with interest of Rs. 9, 000/- paid by him.
 The said deed was executed by Mr. Akhilesh Kumar and Mrs. Sumeeta Kumari and also
Bashir Khan in favour of Mr. Rahman Ali on dated 16.10.1998. Mr. Akhilesh Kumar and
Mrs. Sumeeta Kumari remained in exclusive possession of the suit property during their
life time over the said property and neither Bashir Khan, nor Rahman Ali, the Respondent
No. 01, ever got the possession over the said house.
 Subsequently, the Respondent No. 01, on account of having the said deed in his favour in
respect of the suit property, got his name mutated in Municipal records in pursuance of
the deed executed on dated 16.10.1998 and later on, the House Tax and Water Tax
receipts were issued in his name.

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 He issued a registered legal notice dated 06.05.2001 on Suneeta Kumari asserting himself
to be the absolute owner with possession of the suit house by virtue of deed dated
16.10.1998 and demanded damages for illegal occupancy of the said house and asked her
to vacate the same.
 The said notice had been duly replied by Suneeta Kumari claiming herself to be exclusive
owner in possession of the house and thereby she refused to vacate the house denying the
title of the Rahman Ali.
 After this, Mr. Rahman Ali remained silent for more than 16 years until Mr. Akhilesh
Kumar and Mrs. Sumeeta Kumari died.
 In the year 2014, the predecessor Smt. Kusum Kumari files a suit for redemption of
mortgage in the court of competent jurisdiction, but the court dismisses the suit on the
ground that it was not at all a mortgage but a deed of sale.
 Therefore, the petitioner has approached the honorable district court.

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 STATEMENT OF ISSUES

Issue I: Whether there was a deed of sale or a contract.

Issue II: Whether the Respondent was having lawful ownership over the property.

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 SUMMARY OF ARGUMENTS

Issue I: Whether there was a deed of sale and not a mortgage.

It is most humbly and respectfully submitted before this Hon’ble court that the contract between
the parties was that of a sale with conditional repurchase since all the requisites of a sale are
satisfied, it is not in the nature of a mortgage and most importantly, the test of Intention clearly
shows that the same is in the nature of a sale deed.

Issue II: Whether the Respondent was having lawful ownership over the property.
It is most humbly and respectfully submitted before this Hon’ble court that the title and interest
of the property lies with the respondent as it is given that the deed was one of sale with the
condition to repurchase. The suit property was transferred by way of absolute ownership to the
respondent after the lapse of the time period of 10 years given for the condition to repurchase
and hence, the claims of the Appellant is absolutely frivolous.

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 ARGUMENTS ADVANCED

Issue I: That there was a deed of sale and not a mortgage.

It is most humbly and respectfully submitted before this Hon’ble court that the contract between
the parties was that of a sale with conditional repurchase since all the requisites of a sale are
satisfied, it is not in the nature of a mortgage and most importantly, the test of Intention clearly
shows that the sale is in the nature of a sale deed.

According to the matter of “Abdul Rahman v. Mt. Bismillah Begum”2, it was said that in order
to bring a transaction within the category of mortgage, the relationship of debtor and creditor
must subsist between the parties and if there is no debt for which the transfer is a security it is
impossible to hold that the transaction is a mortgage. The person who seeks to make the
transaction a mortgage must begin by showing that there is a mortgagor and mortgaged property
within the meaning of Section 58(a). Even the mere possession of the deeds by the creditor
coupled with the existence of a debt need not necessarily lead to the presumption of a mortgage.3
Here, the relationship of creditor and mortgager does not exist. Here, the burden of proving it to
be a deed of mortgage will rest heavily on the appellant as held in the matter of “Bhagwan Sahai
v. Bhagwan Din”4, which was decided by taking reference from Alderson v. White, decided by
their lordships of the privy council. It was laid down as under "The rule of law on this subject is
one dictated by common-sense; 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 become a mortgage merely because the vendor stipulates that he
shall have a right to repurchase."5

2
Abdul Rahman v. Mt. Bismillah Begum, AIR. (26) 1939 All 539, P Obr Yyu v. A C. Venkaiappa, AIR 1974 AP
232, 235.
3
Syndicate Bank v Estate Officer and Manager, A.P.I.I.C. Limited and Others, 2007 Indlaw SC 861.
4
(1890) 12 All. 387.
5
Pandit Chunchun Jha v. Sheikh Ebadat Ali, 1954 Indlaw SC 145.

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If the transaction is by way of sale but a right of repurchase within the limited time is reserved to
the vendor, it is not a mortgage, and the grantee's title becomes absolute if the condition as to
repurchase is not complied with and in such a case no question of redemption can arise.6

If the real purpose of the transaction is to secure a debt it will be deemed a mortgage rather than
a conditional sale.7 Moreover, when there is no relationship of debtor and creditor, the question
of it being a mortgage sale does not arise.8

That all the conditions of a sale are satisfied.

The requisites of a valid sale are:

Parties to a sale: Here both the parties to the sale are present where Rahman Ali Khan was the
buyer and predecessors of Kusum Kumari were the seller.

Subject matter: The subject matter of the sale may include any kind of immovable property as
defined under section 3of the TPA.9 In the matter of Khiria Devi v. Rameshwar Rao,10 it was
provided in the sale deed that all rights and privileges in and concerning the suit property either
at the present or accruing in the future, which is vested with the vendor were the subject matter
of sale and the vendor retained no right of any kind whatsoever. The same is given under section
8 of the TPA.

Consideration: Inadequate of consideration cannot be a ground for denying the the validity of a
sale.11 Sale is transfer of ownership for money consideration. And Ownership does not only
means possession of a property but it also denotes the transfer of a bundle of rights and liabilities
of property.12 For making a valid sale, amount of money is immaterial and may or may not be
adequate sum as compared to market value of the property. Therefore, here also the inadequacy
of consideration will not turn the sale into a mortgage. The impugned contract is proved to be of
an out and out sale and not a mortgage.

6
COOTE, MORTGAGES, 11-13 (9d ed. 1989).
7
Lal Chand Kallu Mal Jain v Atma Rani and Anr., AIR 1960 P& H 444.
8
Tamboli Ramanlal v. Ghanchi Chimanlal, 1992 AIR SCW 1170
9
Sec 3, The Transfer of Property Act.
10
Khiria Devi v. Rameshwar Rao, AIR 1992 SC 1482.
11
Hakim Singh v Ram Sanehi, AIR 2001 All. 231.
12
MOOKERJEE, LAW OF TRANSFER OF PROPERTY231 (3d ed. 2016).

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Conveyance or Transfer: All the qualities of sale has been mentioned in the said document and
therefore, it cannot be considered as a mortgage by conditional sale. In case of a sale deed or in
case of a sale it is necessary that it must indicate the transfer of ownership i.e., transfer of all
rights and interests in the properties which are possessed by that person are transferred by him to
another person.13 It includes all rights of owner including right to transfer and enjoy such
property in the manner whatsoever the owner likes as well as to dispose of that property. 14 And,
the respondent was paying taxes as the owner of the property in the present case.

The date of execution may be regarded as the exact date of passing of the title only where it is
clearly ascertainable in the deed. If the deed itself lays down certain condition precedent to the
transfer of ownership, the title deed is deemed to pass on accordingly i.e. the true test as to when
the title shall pass on to the buyer is the intention of the executant. Transfer under sale can be
made by a registered Instrument as well as by delivery of possession.15

That the respondent was having constructive possession:

The word "possession" in Civil Procedure Code, includes constructive possession. The word
"possession" denotes the legal right to possession. In the present case, it is crystal clear
observation that there was delivery of constructive possession of the land. Constructive
possession is a legal fiction to describe a situation where an individual has actual control over
chattels or real property without actually having physical control of the same assets. In the matter
of "Hans Raj Banga v. Ram Chander Aggarwal16",it was laid down that a person with
constructive possession also stands in the same legal position as a person with actual possession.
Therefore, here the respondent was having a constructive possession of the property.

That the Mutation done by the respondent was valid:

A document which is not compulsorily registrable cannot be ignored merely on the ground that it
is not a registered document. In the matter of “Moti Lal Vs. Smt. Nirmal Kumari”17, the Court
said that a rent note which is not required to be registered cannot be ignored merely on the

13
Vidhyadhar v. Manikrao, 1999 Indlaw SC 1006.
14
Lal Chand Kallu Mal Jain v Atma Rani and Anr., AIR 1960 P& H 444.
15
AP SINGH & ASHISH KUMAR SRIVASTAVA, PROPERTY LAWS167 (1d ed. 2015).
16
Hans Raj Banga v. Ram Chander Aggarwal, AIR 2005 SC 2384.
17
Khiria Devi v. Rameshwar Rao, AIR 1986 All 270.

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ground that it is not a registered document. Similarly, in the present matter the mutation of the
respondent’s name in the municipal list cannot be ignored.

Mutation means a change of title ownership from one person to another when the property is sold
or transferred. It is an established fact that a valid sale confirmed by the authorities confers title
as well as ownership rights in the purchaser. When the property is registered in Sub-registrar
office, the customer of the property has to obtain the title of the property updated in his/her name
from local revenue office. This is called mutation. When the property is updated within the
revenue records, henceforth the new owner needs to pay for applicable taxes towards the civic
body.

By mutating a house, the new owner will get the title of the property documented on his/her
name within the land revenue department and also the government is capable of charge property
tax to the rightful owner. Similarly, in the present matter also the water and other were issued in
his name.

Here, the respondent was having his name mutated in the municipal for more than 10 years.
Therefore, the transfer of ownership has taken place and the title was passed to him as annual
taxes were issued in his name. Therefore, all the requisites of a sale are satisfied which proves
that it is a valid sale.

Distinction between mortgage of Conditional Sale or Sale Deed

Where a document is ostensibly a sale deed and has held its ground as such for a long time
period, the onus of establishing that the transaction is not what it purports to be lies upon the
party who disputes its nature. The basic distinction between a "conditional mortgage" and a
"conditional sale" is that "mortgage" leaves title to property, in the grantor and gives to the
grantee only a lien on it, by means of which the grantee is authorized to appropriate the property
mortgaged to the extent of its value, to payment of the debt thus secured. The "conditional sale"
confers on the grantee title to the property giving the grantor the right to repurchase it at a certain
price within the stated period. The effect of a mortgage is to charge the moneys secured upon the
mortgaged property and to make it answerable for the repayment of such moneys.

In the present matter, the form in which the deed is made is not decisive that it is a mortgage.
The definition of a mortgage by conditional sale itself contemplates an ostensible sale of the

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property. In the line of “Tulsi v. Chandrika Prasad”18, A distinction exists between a mortgage
by way of conditional sale and a sale with the condition of purchase. In the former the debt
subsists and a right to redeem remains with the debtor but in case of the latter the transaction
does not evidence an arrangement of lending and borrowing and, thus, right to redeem is not
reserved thereby.

Additionally, in a sale, coupled with an agreement to reconvey, there is no relation of debtor and
creditor, nor is the price charged upon the property conveyed, but the sale is subject to an
obligation to retransfer the property within the period specified. In the present matter also a
period of 10 years was given to the appellant to repurchase but she failed. Therefore, the
impugned contract turns out to be a sale.

In the present matter also, there was no recital in document whether the amount paid was a
consideration or a loan, also nowhere it was recited in the deed that the plaintiff wanted to take
the amount. The defendant was continuously paying the taxes, his name was mutated over the
property, the plaintiffs never exercised their option to re-purchase the said property nor offered
to pay the amount paid on the deed. Therefore, here the transaction / document was a simple
conditional sale-deed with right to purchase within ten years.

That the intention of the appellant was to sale the property:

In order to constitute a "sale", the parties must intend to transfer the ownership of the property
and they must also intend that the price would be paid either in person or in future. The intention
is to be gathered from the recital in the sale deed, the conduct of the parties, and the evidence on
record.19Nomenclature of the document is hardly conclusive and much importance cannot be
attached to it since it’s not conclusive of the matter.20

In the matter of “Pandit Chunchun Jha v. Sheikh Ebadat Ali”21, the court observed that; 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 language employed, then it is

18
Tulsi v. Chandrika Prasad,AIR 2006 SC 3359.
19
Puran Singh Sahni v. Sundari Bhagwandas, (1991) 1 SCR 592.
20
Tamboli Ramanlal Motilal v. Ghanchi Chimantal Keshavlal, AIR1992 SC 1236.
21
Pandit Chunchun Jha v. Sheikh Ebadat Ali, 1954 Indlaw SC 145.

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permissible to look to the surrounding circumstances to determine what was intended in the
circumstances.

If there is anomaly regarding the language used, the intention may be ascertained from the
contents of the deed with such extrinsic evidence as permitted by law to be adduced to show in
what manner the language of the deed is related to existing fact.

Intention can be deduced from the form of the deed: If the intention of the parties was to
execute a sale, rather than a mortgage, then there should have been a specific clause authorizing
the vendee to retransfer the property to the vendor rather than take back the possession.
However, in the present matter, there was not any specific clause showing whether it was a
mortgage or a sale.

Intention can be deduced from the circumstances: In Bhagwan Sahai's case22, the
circumstances were very similar to the present case, a deed declared that they had on their own
accord absolutely sold the entire property and thereafter as a matter of favour, mercy, kindness
and indulgence, executed a deed whereby it was stipulated that if the vendors will, within a
period of ten years from the date of this deed, pay in lump sum an amount of Rs. 4,000-00
without interest, then the vendor will accept that amount and cancel the valid sale deed. Thus, the
court held that it was a sale deed and not a mortgage by conditional sale.

The following circumstances help underline the purpose of the deed:

a. Where the intention is to extinguish a debt the transaction will be a sale and not a
mortgage. And in the present case also the circumstances were similar.

b. By subsequent acts or admission of the parties the original character of the transaction
cannot be changed, but such acts and admissions may be indicative of a pre-existing
intention a concerning the nature of the transaction.23 And, here the mutation of
respondent’s name in the municipal records and the appellants implied acceptance to it
clearly shows that it was a sale.

22
Bhagwan Sahai v. Bhagwan Din, ILR 1890 All 387
23
Lal Chand Kallu Mal Jain v. Atma Ram And Anr., AIR 1960 P& H 444.

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 c. Payment by the grantee of taxes, which are usually payable by the owner, indicates that
he regarded himself as owner and this negatives the idea of a mortgage.

d. Lapse of considerable time during which the grantee has been in possession as ostensible
owner of the estate and particularly after the expiration of the time given for repurchase,
will lead the Court to treat the transaction as a sale. Similarly, in the present case also the
time priod of 10 years has lapsed without repurchase by the appellant, which proves the
impugned contract to be a successful sale contract.

Issue II: Whether the Respondent was having lawful ownership over the property.

It is most humbly and respectfully submitted before this Hon’ble court that the title and interest
of the property lies with the respondent as it is given that the deed was one of sale with the
condition to repurchase. The suit property was transferred by way of absolute ownership to the
respondent after the lapse of the time period of 10 years given for the condition to repurchase
and hence, the claims of the Appellant is absolutely frivolous.

That the respondent was having the absolute right of ownership

According to section 65 of the Code of Civil Procedure, where an immovable property is sold in
execution of a decree and such sale has become absolute, the property shall be deemed to have
vested in the purchaser from the time when the property is sold and not from the time when the
sale becomes absolute.
On the sale becoming absolute the property shall be deemed to have vested in the purchaser from
the time of the sale of the property and not from the time when the sale becomes absolute.

In “Khiria Devi v. Rameshwar Rao”24it was provided in the sale deed that all rights and
privileges in and concerning the suit property either at present or accruing in future, which vested
in the vendor, retained no right of any kind whatsoever. Similarly, in the present case the
appellants right and privileges regarding the property has vanished from the very day when sale
of the property took place.

That the Appellant’s right is time barred under the limitation law:

24
Khiria Devi v. Rameshwar Rao , AIR 1992 SC 1482.

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It is most humbly and respectfully submitted before this court hon’ble court that the appellant is
time barred under limitation law to claim ownership over the property. As the period of
limitation has already ceased in 2008, therefore the appellant can’t claim ownership over the
property as she was unable to return the sum of Rs. 7,00,000 along with Rs. 9000 of interest
within the stipulated time period.

The law of limitation will not have any application in a case where re-conveyance has been
contemplated within a stipulated time in the deed of conditional sale. The moment the
performance contemplated therein could not be executed on account of expiry of the period
referred in the deed the right reserved under the conditional sale comes to an end.

In the matter of “Laxmi Narayan Barnwal v. Jagdish Singh” 25 it was laid down that the title of
the vendor passes to the vendee on irrespective of the fact as to whether consideration in whole
or in part, has been paid by the vendee to the vendor or not subject, to the contrary intention of
the parties to the said transaction. Similarly, in the present case the title has been already passed
to the respondent with the ending of the stipulated time period.

Therefore, the legal heirs of the original owner are barred by limitation law. As per the
provisions of the Limitation Act, they cannot file a suit today, years after the property was
transferred by the original owner to the subsequent owner. Thus the claim of the persons
claiming ownership is barred.

25
Laxmi Narayan Barnwal v. Jagdish Singh, IR 1991 Pat. 99.

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 PRAYER

WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES

CITED, THE COUNSEL ON THE BEHALF OF THE RESPONDENTS MOST HUMBLY PRAY BEFORE THIS

HON’BLE COURT TO DECLARE AND ADJUDGE THAT:

 The deed in question was one of sale

 The Respondent is the owner of suit property
 The Appellant should pay the cost of Litigation

And to pass any order or relief in the Favour of the Respondents which this Hon’ble Court may
deem fit in the larger interest of the Justice.

FOR THIS ACT OF KINDNESS, THE COUNSEL SHALL REMAIN DUTY BOUND FOREVER.

Sd/-

COUNSEL FOR RESPONDENT

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