RAMACHANDRA NEMANNA Vs. VIMLABAI

JUDGEMENT

(1.) The petitioner who claims to be the owner of the 4/5th share of the land bearing Survey No. 230/2C measuring 2 acres 24 guntas, of Pattankudi, taluk Chikodi, district Belgaum, has in this writ petition under Article 226 of the Constitution, challenged the validity of the order passed by the Taluk Executive Magistrate, Chikkodi, in No. DRA. SR 401)77, dated 31st August, 1977, allowing the application filed by the first respondent under Sec. 4(f) of the Karnataka Debt Relief Act, 1976 (hereinafter referred to as 'the Act') .

(2.) The facts of the case are that the land in question is stated to have been sold to the petitioner under a registered; sale deed dated 14-5-1971 by the husband of the first respondent for Rs. 12,000. It is also stated in the order of the Taluk Executive Magistrate that on the same date the petitioner is said to have executed an agreement of reconveyance in favour of the husband of the 1st respondent agreeing to reconvey the land in question to the husband of the first respondent on payment of Rs. 12,000 within a period of five years. The taluk Executive Magistrate, has held that the sale amounts to a mortgage in view of the agreement of reconveyance and has also further held that the first respondent is unable to pay the alleged debt in question and has accordingly allowed the application.

(3.) Sri Shirgurkar, the learned Counsel appearing for the petitioner, advanced the following two contentions: (J) that the first respondent had no locus standi to maintain the application under Sec. 4(f) of the Act, inasmuch as admittedly, the husband of the first respondent was the owner of the land in question and he has sold the same in favour of the petitioner though there, is en agreement of reconveyance executed by the petitioner in favour of the husband of the first respondent as such, it is the further case of the petitioner that when the husband of the first respondent is alive and during the life time of the husband of the first respondent it is not at all open for the first respondent to maintain the application in question under Sec.4(f) of the Act: (2) that it was also further contended that the transaction being one of sale out and out and there being a separate agreement of reconveyance agreeing to reconvey the land in question on payment of the amount mentioned therein within a specified period it was not at all open for the Taluk Executive Magistrate to entertain the application under Sec. 4(f) of the Act, as in view of the provisions contained in the proviso to clause (c) of Sec. 58 of the Transfer of Property Act, the transaction cannot be treated as mortgage."