VEERAPPA GOWDA Vs. HUKRAPPA GOWDA

JUDGEMENT

(1.) this writ appeal is preferred against the order of the learned judge allowing the writ petition filed by the first respondent and quashing the order of the tahsildar, sullia taluk, sullia, dated 11-2-1982, produced at Annexure-B in the writ petition.

(2.) certain lands belonging to the joint family of the appellant and first respondent hukrappa gowda and his brother boja gowda, had suffered a decree in original suit No. 155 of 1955, filed by kukkanna gowda, passed by the sub-court, mangalore. For the purpose of clearing certain debts, including the decretal amount, the appellant herein with his brother and other family members, executed a sale deed on 7-5-1957 for a consideration of Rs. 8,000-00 in favour of kukkanna gowda. The sale-deed, which is at annexure-a, inter alia, provided that after a period of five years with effect from 12-4-1962, but within a period of ten years from the date of the said document, the vendors could pay a sum of Rs. 8,000 to kukkanna gowda and get a registered reconveyance deed of the property. After the coming into force of the Karnataka Debt Relief Act, 1976, the appellant filed an application under Section 4 of the act seeking relief under the act on the ground that he belonged to the weaker Section of the society as his income was less than Rs. 3,000-00 and that he was entitled to get back the land in question on the ground that the debt had been wiped out under the Provisions of the said act. The tahsildar, in the said proceedings, passed an order on 10-8-1979 grating relief to the appellant. The first respondent filed writ petition 7104 of 1977 challenging the said order. The writ petition came to be allowed and this court set aside the order passed by the taluka executive magistrate and directed the competent authority to hold a fresh enquiry in accordance with law. Subsequent to the order of remand, the second respondent has passed an order dated 11-2-1982 holding that the appellant's income is less than Rs. 4,800-00 and hence is a 'debtor' as defined under the act and is entitled to the benefit of the act and directed the property to be handed over back to the possession of the appellant. The respondent challenged the.said order in writ petition 16413 of 1982 and the learned judge allowed the writ petition on the ground that the transaction in question was an out-right sale and not a mortgage as contended by the appellant, and quashed the order of the tahsildar. Against the said order of the learned judge, this appeal is preferred.

(3.) the learned counsel for the appellant and the learned counsel for the respondents have addressed elaborate arguments on the nature of the document in question and the correctness of the view expressed by the learned judge in his judgment in the writ petition. The learned counsel for the appellant contended that the transaction in question is a mortgage. On the other hand, the learned counsel for the respondent No. 1 contended that it is an absolute sale with a condition of re-conveyance within a particular period and the view taken by the learned judge is correct.