AHMED BIN SALAH Vs. MOHAMMAD BASHA

JUDGEMENT

(1.) These two appeals founded on a certificate, are directed against the judgment and decree passed by the High Court of Andhra Pradesh by which it reversed the dismissal by the Trial Court of a suit for redemption filed by the respondent in Civil Appeal No. 1723 of 1968 and the appellant in Civil Appeal No. 225 of 1969 hereinafter for brevity sake called the plaintiff.

(2.) The case of the plaintiff in the suit was that he was the owner of the mortgaged house in question and the site on which it was constructed. He purchased the said site for Rupees 8,000 and built thereon the said house. Having run into debts while constructing it, he borrowed from the defendant's father three sums, Rupees 8,000, Rs.4,000 and Rs.3,000 and executed three different documents of mortgage. His mother, Malan Be, was joined as a co-executant of those mortgages, as the property stood in her name as his benamidar and also as and by way of abundant caution. According to the plaintiff, his second wife, Yaseen Begum laid claim over the said house in lieu of dower due to her. To save the house from that claim, the plaintiff's mother executed a sale deed, Ex. B-1, in favour of the defendant's father mentioning therein Rs.30,000 as the consideration for the sale. That amount, according to the sale deed, consisted of Rs.15,000 being the mortgage debt and another sum of Rs.15,000 said to have been paid in cash though it was never paid and was shown as part of the consideration only to avoid a charge that the said sale was collusive. The plaintiff's case further was that the sale deed was fictitious and was never intended by the parties thereto to operate and being without consideration also was void and of no effect. According to him, he was absent at the time when his mother executed the said sale deed. Further, she could not pass any title in the said house as she was only his benamidar and had herself no title or interest therein. On December 19, 1938, the defendant's father, knowing that he had acquired no title under the said deed and on protest made by the plaintiff, executed a document, Ex. A-1, admitting that the said sale deed was fictious, that he was in possession of the house as the mortgagee only and that he, and after him his heir, would restore it to the plaintiff on satisfaction of the said mortgage debt. The plaintiff's mother died in 1354 Fasli, leaving her surviving the plaintiff as her sole heir and legal representative. The plaintiff claimed that the defendant's father and after his death the defendant, had in all collected Rupees 36,556.10 np. by way of rents and that after deducting the municipal taxes and the mortgage amount of Rupees 15,000, the defendant was bound to restore the said property and pay the excess which, according to him came to Rs.21,572.65 np.

(3.) The defendant denied that the plaintiff, and not his mother, was the owner of the mortgaged property. He also denied that the sale deed, Ex. B-1, was fictitious, or that the plaintiff's mother had no right to execute it, or that she did so while the plaintiff was absent from Hyderabad. He further denied that besides the mortgage amount, another sum of Rs. 15,000 was not paid to the plaintiff's mother. The defendant asserted that the said deed was valid and effective as it was executed by the plaintiff's mother in whom the title in the property vested and the transaction was for consideration. His case further was that Ex. A-1 was a fabricated document, in that the signature on it was not of his father. In any event, the said document amounted to restore the house to the plaintiff on satisfaction by him of the mortgage debt. That direction was, however, of no avail to the plaintiff as the defendant's father died leaving his last will and testament by which he had revoked all previous directions. There being thus a valid sale evidence by Ex. B-1, there was no longer any subsisting mortgage on the basis of which redemption or accounts could be claimed, and that therefore, the suit was misconceived.