TUKARAM Vs. HEMALATHA

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 13-12-1999 in R.A. No. 12 of 1986 passed by the Additional District Judge at Bidar.

(2.) Appellant is the plaintiff and respondents are the defendants before the Trial Court. In this judgment, for convenience, the parties are referred to their status before the Trial Court.

(3.) It is the case of the plaintiff that he and defendant 3 are brothers. Defendants 4 to 6 are the children of defendant 3. Plaintiff and defendants 3 to 6 mortgaged the plaint schedule property in favour of one Sadanand Garje in the year 1968. Further, defendants 3 to 6 also mortgaged another property in favour of said Sadanand Garje in the year 1971. The said Sadanand Garje demanded the mortgage money of Rs. 10,000/- as he wanted to purchase another house. Since the plaintiff and defendants 3 to 6 did not had money to repay the mortgage money, they offered to mortgage the schedule property in favour of defendant 2. After negotiations defendant 2 demanded to execute a sale deed for a consideration of Rs. 10,000/- with an assurance that they will not act upon the sale deed and the same will be treated as a mortgage deed. Further towards payment of interest at 2% on the mortgage amount of Rs. 10,000/-, defendant 2 demanded the plaintiff and defendants 3 to 6 to execute a rent deed. The plaintiff and defendants 3 to 6 having no other alternative, agreed to the demand of defendant 2 and executed a registered sale deed in favour of his wife the defendant 1, on 12-11-1971. On the same day, a rent deed was also executed agreeing to pay a sum of Rs. 200/- as rent in lieu of interest on the mortgage amount. Even after the sale deed dated 12-11-1971, the plaintiff continued to be in possession of the schedule property, paid house tax and khatha also continued in his name. After sale transaction on 12-11-1971, the plaintiff also paid regularly the interest and finally a sum of Rs. 8,426/- towards discharge of mortgage money under Ex. P. 2. The defendants 1 and 2 instead of discharging the mortgage, got issued a lawyer's notice demanding arrears of rent and also filed an eviction petition in HRC No. 16 of 1975 on the file of the then Munsiff at Bidar. Thereafter, the plaintiff filed O.S. No. 39 of 1977 for a declaration to declare that the sale deed dated 12-11-1971 as nominal, sham and not acted upon and also for restraining the defendants 1 and 2 from evicting the plaintiff from the schedule property and from continuing the eviction proceedings in HRC No. 16 of 1975.