Rahim Khan (dead) through LRs v. Abdul Kashem Khan (dead) through LRs & Ors.

Chunilal, Nandalal, Mihirlal and Bitsupada were 4 brothers and owners of the
suit property measuring 78 decimals. All 4 brothers owned a share of 19½
decimals each.

25.03.1958 Mihirlal and Bitsupada sold their half share in the suit property measuring 39
decimals to Khorsed Ali for a consideration of Rs. 500/- vide registered Sale
Deed. Khorsed Ali was the predecessor-in-interest of the Respondents.
*Note: Petitioner has contended that this transaction was a Mortgage by
conditional sale, and Mihirlal and Bitsupada redeemed their respective
shares in the suit property by paying the money back to Khorsed Ali.

06.04.1960 Chunilal and Nandalal sold their half share in the suit property measuring 39
decimals to Noor Islam vide registered Sale Deed.

17.03.1975 Mihirlal executed a Gift Deed with respect to his share in the suit property
in favour of his son Jamini Das.

17.07.1986 Bitsupada’s wife sold his share in the suit property to the Petitioner – Rahim
Khan vide registered Sale Deed.

2000 The Respondents, LRs of Khorsed Ali filed a Title Suit with respect to their 54 – 57
share of 39 decimals in the suit property before the Civil Judge, Uluberia.

22.04.2002 Petitioner – Rahim Khan contended that Khorsed Ali was a money lender. 58 – 66
Mihirlal and Bitsupada had mortgaged their property with Khorsed Ali and not
sold it. They later got their respective shares redeemed. Petitioner purchased
Bitsupada’s share from his wife vide registered Sale Deed.

31.01.2006 Trial Court Order 78 – 87

Suit decreed in favour of Respondents/Plaintiffs.
 On reading the Sale Deed dated 25.03.1958, there was no whisper 82 – 84
suggesting that it was not an out and out Sale Deed. After making
comparisons to other Sale Deeds, the Court was of the opinion that the
consideration of Rs. 500/- was sufficient.
 Petitioner failed to establish that there was existence of any debt. 84
 Even if it was a Mortgage Deed, there was no evidence to suggest that 85 – 86
Mihirlal and Bitsupada had redeemed their shares in the suit property.
Mihirlal and Bitsupada had lost their share in the suit property and they
had no right to execute any Gift Deed or Sale Deed in future.
 Respondents’ Right, Title and Interest with respect to their half share in the 87
suit property was declared. Parties were directed to get the suit property
partitioned amicably by metes and bounds among themselves.

2006 Petitioner filed an Appeal before the ADJ.

09.03.2007 Order passed by the ADJ 88 – 98

Appeal allowed.
 The evidence of R1 before the Trial Court was scrutinized. He had stated 96 – 97
that his father Khorsed Ali had no property at the time of his death. He
further admitted that the suit property had not yet been partitioned. His
credibility had shaken.
 On the basis of the oral and documentary evidence on record, the Court held 97
that the Appeal had merit and the Trial Court Order was not sustainable in
law.

2007 Respondents/Plaintiffs filed a Second Appeal before the Calcutta High Court. 99 – 105

17.04.2018 Impugned HC Order 1 – 14

Second Appeal allowed.
 It was established that Rs. 500/- was the fair market price at the relevant point 5
of time. It was well proved that Khorsed Ali possessed the land purchased
by him.
 No suit was filed by the Petitioner under the Bengal Money Lenders Act. 5
If the counter claim in the Suit is considered, then the claim was after 42
1 Tarang Agarwal
 years and hopelessly barred by limitation.

 The Sale Deed dated 25.03.1958 had no whisper that it was coupled with a 6
condition to re-convey the suit property on repayment of loan. As per S. 92 of
the Evidence Act, no oral evidence could be admitted or entertained for
the purpose of contradicting, varying, adding or subtracting from the
terms of the Sale Deed. The relaxation u/S. 40(6) of the Bengal Money
Lenders Act could not be availed by merely taking a defence in a Suit.
 Noor Islam – Defendant No. 1 in the Suit stated that he had no objection 10 – 11
against the averments made in the Plaint regarding Respondents/Plaintiffs’
claim in the suit property.
 Appellate Court committed a substantial error of law in treating the Sale 14
Deed dated 25.03.1958 as a loan in substance. Order passed by the
Appellate Court was set aside and the Decree passed by the Trial Court
was restored.

1 Tarang Agarwal