# Udai Narain v. State of U.P. & others

- **Citation:** (1999) 3 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-narain-v-state-of-u-p-others-39364
- **Pages:** 9

## Text

3 All.] ALLAHABAD SERIES
145

10.
What the learned Sessions Judge seems to have done in the
present case was to first pronounce the operative part of the
judgment and thereafter proceeded to dictate the judgment to his
stenographer. This was clearly contrary to the mandate of sections
353 and 354 Cr.P.C. and, as such, the procedure followed by him
was illegal. As mentioned earlier, the record of the case does not
contain the judgment or even a part thereof, reference of which is
mentioned in the order sheet dated 11.12.1989. In absence of any
judgment on record the final decision in the case has snot been
rendered and the case has not yet concluded. In order to conclude
the case, the judgment has to be pronounced in accordance with
section 353 Cr.P.C.

11.
In the result the petition succeeds and is hereby allowed.
The oral pronouncement of judgment of acquittal as recorded in the
order sheet dated 11.12.1989 is set aside. The learned Sessions
Judge is directed to conclude the session's trial jby pronouncing
judgment in accordance with lalw after hearing counsel for the
parties. It will be open to the learned Sessions Judge, Varanasi,
either to hear the case himself or to asign it to some other Additional
Sessions Judge in his Sessions division.

12.
Office is directed to send back the record of the trial court as
early as possible.
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1999
------
Udai Narain
 Vs.
State of U.P. &
others
------
G.P. Mathur , J.
1999
------
July, 6
146 THE INDIAN LAW REPORTS [1999

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Cases referred.
AIR 1988 S.C. 1074 .
1955 ( 1 ) S.C.R. 174: (1954 ) ASC. 345: 1954. SCJ 469:(1954)
SCA 611
(1960)2 SCR117:(1960)ASC 301:SCJ 327 (1960)2SCA 189
(1983) ASC 1182 1972 A Raj 250.
AIR 1992 MP 22,26,27,
(1953) Mad 1196: (1953) AM 830.
(1980) A. Karn. 154
(1974) A. Bom. 136

By the Court

1.
This writ petition raises a question about the status of a tenant
(of a person a house) of a person 'a', during the period when he (the
person 'a') had transferred the entire house to the third party b, and
he himself (the person 'a' ) became the tenant of his transferee b,
sill the tenant continue to be the tenant of that person a. or become
the tenant of is transferee b what will happen if the transferee b re-
transfers the house to the person a does it mean that the person a
continued to be the landlord of the tenant during the period he had
transferred the house to the third party b these questions arise in the
following background.
1999
------
Masuryadin and
others
 Vs.
Special Judge
(Economic
Offences), Alld..
& others
------
Yatindra Singh , J.
3 All.] ALLAHABAD SERIES
147

Facts
2.
Petitioners are the owners of the house no . 636; Bahadurganj
Allahabad ( hereinafter referred to as the house ) there is a shop in
this house which was let out to one Nafis Ahmad ( respondent no. 3 )
at rate of Rs. 90/- per month in 1967 . Nafis Ahmad has died during
the pendency of the writ petition and is substituted by his heirs. All
of them are referred to as respondent no.3. In 1969 some of the
petitioners executed a sale deed in favour of one Ramashankar for
Rs. 3000/- in respect of the house . the details of the petitioners who
have executed these deeds are not relevant. They are referred to as
the petitioners Rama Shankar also executed an agreement of re-
conveyance in favour of the petitioners on the same day. A rent deed
was also executed on the same day by which petitioners became the
tenants of Rama Shankar at the rate of Rs. 60/- per month. In 1972;
three deeds were executed on the same day between the three parties.
(1) Rama Shankar to whom the house was earlier sold. (2) some of
the petitioners (the petitioners for short as the details are not
relevant) and (3) Saligram and Radheshyam Saligrah - Radheshyam
for short they executed three deeds on the same day. These deeds
were (1) a sale deed in favour of Saligram - Radheshyam for Rs.
10;000/-( the money was shared by the petitioners and Ramshankar;
(2) a deed of re- conveyance in favour of the petitioners by Saligram
- Radheshyam ; and a rent deed by which the petitioners became the
tenant of the house at the rate of Rs. 150/- per month the effect of
these three deeds ( in 1972 ) was that Rama Shankar went out the
picture and a new relationship between petitioners and Saligram -
Radheshyam came into existence. In the deeds of 1969 or 1972;
there is no any reference about the shop or respondent no.3. or about
his status. They are silent on this question.

3.
Saligram - Radheshyam were undoubtedly the landlord of the
petitioners . They filed a JSCC suit no. 39/1976 for ejectment and for
arrears of rent against the petitioners . some of the petitioners
(petitioners for short as the details not relevant ) filed a suit no. 19 of
1977 for cancellation of the transfer deed etc (executed in 1972) in
favour of Saligram - Radheshyam. These two suits were
consolidated and decided by a common judgement dated 12.08.1980
by the IIIrd addl. District Judge . Allahabad. The suit filed by
Saligram -Radheshyma was decreed for the recovery of arrears of
rent against by the petitioners but was dismissed for their ejectment.
The other suit n. 19/1977 filed by the petitioners for the cancellation
of the sale deed was dismissed petitioners filed an appeal and a
1999
------
Masuryadin and
others
 Vs.
Special Judge
(Economic
Offences), Alld..
& others
------
Yatindra Singh , J.
148 THE INDIAN LAW REPORTS [1999
revision against the judgement in these suits. During pendency of
these proceedings. Two more suits were filed by the petitioners one
against
Saligram-Radheshyma
alleging
that
the
transaction
evidenced by the three deeds in 1972 was in fact mortgage and for its
redemption . and the other against respondent no. 3 for his ejectment.

4.
The petitioners filed the suit no. 440/1990 against Saligram -
Radheshyam on the allegation that transaction evidenced by the three
deeds in 1972 was in fact a mortgage and it be redeemed . This suit
was compromised between the petitioners and Saligram -
Radheshyam in 1994 a compromise decree was also passed in the
same year. In substance the compromise was that the petitioners have
paid the entire amount due to Saligram - Radheshyam and Saligram
- Radheshyam were to re-convey the house to the petitioners this
they did in the same year and the petitioners again became owners of
the house. This disposed off this suit as well as the appeal and the
revision between the petitioners and Saligram - Radheshyma against
the judgement dated 12.08.1080.in o.s. no. 19. Of 1977 and JSCC
suit no. 3 of 1076 this has happened during the pendency of the
present writ petition. Petitioners have filed a supplementary affidavit
bringing these facts on the record. Respondent no. 3 has admitted it
but has denied that has rendered the impugned orders illegal.

5.
The present writ petition. Arises out of the proceedings in the
JSCC suit no. 240/1981 filed by the petitioners against the
respondent no. 3 for his ejectment from the shop on the ground of
non payment of rent for the period 1.6.75 to31.12.1976 Rs. 1710/-
and from 1.1.1981 Rs. 270/- these arrears are for the period when the
petitioners were not the owners of the shop they had transferred the
house which included the shop to Saligram - Radheshyam the suit
was contested by respondent no. 3 the courts below have dismissed
the suit on the ground that petitioners were neither owner. Nor the
landlord for the relevant period and the suit was incompetent . It is
against these orders that the present writ petition has been filed .

Points for Determination

6.
I have heard Sri K.B. Mathur counsel for the petitioner and
Sri Raj Kumar Jain counsel for the respondents. Following points
arise for determination.

1. What was the nature of the transaction between petitioners and
Saligram - Radheshyam evidenced by the three deeds in 1972. Was
1999
------
Masuryadin and
others
 Vs.
Special Judge
(Economic
Offences), Alld..
& others
------
Yatindra Singh , J.
3 All.] ALLAHABAD SERIES
149
it a mortgage . what is the effect of the supreme court decision in
Indra Kumar vs Sheo Lal ?1

2. What was the status of respondent no. 3. During the period of the
sale deed in favour of Saligram -Radheshyam was respondent no. 3.

A tenant Saligram - Radheshyam or a tenant of the petitioners and
thus a sub - tenant of Saligram - Radheshyam .

1st Points for Determination

7. Three separate deeds were executed on the same day in 1972 one
was a sale deed of the house by the petitioners in favour of Saligram
- Radheshyam the second was a deed of deed of re- conveyance in
favour of the petitioners the third was a rent deed . showing that the
petitioners had become tenants of Saligram - Radheshyam in respect
of the house . At some point of time such transaction by separate
deeds was treated to be a mortgage . but them the transfer of property
act ( the act for short ) has been amended in 1929. A proviso has
been added in section 58 (c) 2. The effect of the amending act is that
such transaction now can not be a mortgage unless the condition to
re-convey is incorporated in the sale deed. Mulla on the transfer of
property act 8th Ed. Has succinctly stated the law as the effect of the
proviso to clause (c) added by the amending act of 1929 is that if the
condition for retransfer is not embodied in the document which
effects or purports to effect a sale the transaction will not be regarded
as a mortgage . This has now been settled by several decisions of the

1.
AIR 1988 SC 1874
2.
58(c); Where a mortgagor ostensibly sells the mortgaged property-On
condition that on default of payment of the mortgaged-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 a mortgage by conditional sale and the
mortgage a mortgagee by conditional sale:

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.

1999
------
Masuryadin and
others
 Vs.
Special Judge
(Economic
Offences), Alld..
& others
------
Yatindra Singh , J.
150 THE INDIAN LAW REPORTS [1999
Supreme Court3 and this was also the opinion expressed by the high
courts in many cases. The effect of the proviso is that a transaction in
which the stipulation for re-conveyance is contained in a separate
document cannot be a mortgage of any kind both because of the
language of the proviso and because it could not fall in any other
category of mortgage4 . If a document purports to be an absolute sale
and there is no stipulation for treating the sale as mortgage a
Separate document of re- conveyance cannot convert it into a
mortgage 5. The very object of the proviso to section 58 (c) is to
shut out an enquiry whether a sale with a stipulation to re-convey is
a mortgage where the stipulation is not embodied in the same
document. Hence; if the sale and agreement to repurchase are
embodied in separate documents; then the transaction can not
amount to mortgage; whether or not the documents are executed
contemporaneously .6

Indra Kaur vs Sheo Lal Kapoor

8.
Sri K.B. Mathur counsel for the petitioners has cited a
decision reported in Indra Kaur vs Sheo Lal Kapoor to the effect that
such transaction would be a mortgage . It is true that in this case the
supreme court did frame a question if such a transaction will be a
mortgage or out right sale and did make certain observations. But the
supreme court ultimately did not decide this question. It was left to

3.
Pandit Chunchaun Jha Vs Sjeikhbada Ali, (1955)1 S.C.R. 174, (1954)
A.S.C. 345, (1954) S.C.J. 469, (1954) S.C.A. 611; Bhaskar Waman Joshi vs
Narayan Rambilas Agarwal, (1960) 2 SCR 117, (1960) A.S.C. 301, (1960) S.C.J.
327, (1060) 2 S.C.A. 189; Simrathmull vs. Nanja Linglah, (1963) A.S.C. 1182 and
See Bahadur vs. Motiram, (1972) A. Raj 250, Ramjen Kahan & Ors Vs. Baba
Raghunath Dass & AIR 1992 M.P. 22,26,27.

4.
Suryaparkasa vs. Venkataraju, (1953) Mad. 1196, (1953) A.M. 830

5. Amir Bee vs. The Sub Divisional Magistrate, Sakaleshpur, (1980) A.Karn. 154

6.
Hasam Narani Mal vs. Mohan Singh, (1974) A.Bom. 136.

1999
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Masuryadin and
others
 Vs.
Special Judge
(Economic
Offences), Alld..
& others
------
Yatindra Singh , J.
3 All.] ALLAHABAD SERIES
151
be decided at appropriate time7. This case is neither an authority that
such transactions are mortgage nor (The present transaction in 1972
can not be treated to be a mortgage . It is in fact an outright sale in
favour of Saligram -Radheshyam with a separate agreement of re-
conveyance in favour of the petitioners .)

2nd Point- Status of Respondent no. 3

9. The shop let out to the Respondent no. 3 is a part of the house.
Respondent no. 3 was the tenant of the petitioners . Ultimately by
different deeds the house including the shop was sold to Saligram -
Radheshyam .They were its owners from 1972 to 1994. This
includes the period for which rent is claimed from respondent no. 3
Section 109 of the Act8 clarifies the right of the transferees. It says,
7.
The relevant part of para-5 of Indra Kaur vs. Sheo Lal Kapoor is as follows:
'As the plaint stands, and as the plaintiff himself has preferred to enforce the
agreement for specific performance, it is not necessary to examine the question as
towhether or not the real nature of the transaction was mortgage though it was given
an appearance of a transaction of a sale. For the same reason we need not examine
the question as to whether or not S. 58(c) of the Transfer of Property Act would
have disabled the plaintiff from claiming the relief of redemption on the basis that
the real intention of the parties was to create a mortgage and not an absolute sale
coupled with an agreement for reconveyance. This question will have to be dealt
with at an approperiate time having regard to the fact that there is an increasing
tendency in recent years to enter into such transactions in order to deprive the debtor
of his right of redemption within the prescribed period of limitation. In fact very
often the mortgagee in place of getting a mortgage deed executed in lieu of a loan
obtains an agreement to sell in his favour from the mortgagor so as to bring pressure
on the mortgagor by seeking to enforce specific performance to enable the
mortgagee to obtain possession of the property for an amount smaller than the real
value of the property. We need not however probe the matter any further for the
purpose of disposing of the present appeal for the reasons stated earlier.'

8.
Section 109 of Transfer of Property Act: If the lessor transfers the property
leased, or any part thereof, or any part of his interest therein, the transferee, in the
absence of a contract to the contrary, shall possess all the rights, and, if the lessee so
elects, be subject to all the liabilities of the lessor as to the property or part
transferred so long as he is the owner of it; but the lessor shall not, by reason only of
such transfer, cease to besubject to any of the liabilities imposed upon him by the
lease, unless the leesee elects to treat the transferee as the person liable to him:
Provided that the transferee is notentitled to arrears of rent due before the
transfer, and that, if the lessee, not having reason to believe that such transfer has
been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over
again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of
the premium or rent reserved by the lease is payable in respect of the part so
transferred, and, in case they disagree, such determination may be made by any
Court having jurisdiction to entertain a suit for the possession of the property leased.

1999
------
Masuryadin and
others
 Vs.
Special Judge
(Economic
Offences), Alld..
& others
------
Yatindra Singh , J.
152 THE INDIAN LAW REPORTS [1999
transferee in the absence of a contract to the contrary shall possess
all the rights' there was no mention about the shop or respondent
no.3 in any of the deeds . They are silent. There was no contract to
the contrary. The deeds never stipulated that:

• Saligram - Radheshyam will not be the landlord of the shop or
• they are not entitled to receive of the rent of the shop. or
• the petitioners will continue to be the landlord of the shop and
Respondent no 3 will be a sub tenant of the transferee Saligram -
Radheshyam .

Respondent no. 3 is the tenant of Saligram - Radheyshyam during
the period there was sale deed in their favour and not their subtenant. It is also doubtful if without consent of the tenant namely
respondent no. 3 another tenant can be superimposed. 9

10 . Saligarm - Radheshyam became the owner as well as the
landlord of respondent no. 3 in respect of the shop. They also
became owner and the landlord of the petitioners of the remaining
house in the possession of the petitioners. As there is nothing to the
contrary in any of the deeds. The fact that in the earlier litigation
between the petitioners and Saligram - Radheshyam they had taken
different pleas is immaterial . respondent no. 3 is also not bound by
any observation made in the judgement between them. He was not a
party there. The fact that by the compromise decree all litigation
between the petitioners and Saligram - Radheshyam have been
compromised and the house has been again re-transferred to the
petitioners in 1994 does not mean that Saligram - Radheshyam were
not entitled to the rent from Respondent no. 3 for the period the sale
stood in their favour. Saligram - Radheshyam are entitled to the
arrears of rent, if thee is any for that period. The petitioners are not
entitled to the arrears of rent for that period unless it was also
transferred to them in 1994 This is clear from proviso to the section
109 of the Act. There is nothing on the record to show that
respondent no.3 was in arrears of rent so far as Saligram -
Radheshyam are concerned or Saligram - Radheshyam have
transferred the arrears of rent to the petitioners. Apart from it the
present suit was filed in 1981 and on that date petitioners were not

9.
I have not held the respondent no. 3 to be the tenant of SaligramRadheshyam on this proposition but on the basis of the law as stated in section 109
of the Act.
1999
------
Masuryadin and
others
 Vs.
Special Judge
(Economic
Offences), Alld..
& others
------
Yatindra Singh , J.
3 All.] ALLAHABAD SERIES
153
entitled for the arrears of rent the. Suit was rightly dismissed as not
maintainable .

Conclusion

11. The writ petition has no merits. It is dismissed with costs.

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1999
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July, 13