LAWS(KAR)-1951-11-14

HAYATH SAHEB Vs. BBHARAMANNA

Decided On November 26, 1951
HAYATH SAHEB Appellant
V/S
B.BHARAMANNA Respondents

JUDGEMENT

(1.) The plaintiffs brought their suit in the Court of the Subordinate Judge at Chitaldrug for redemption and possession of the plaint schedule house and for mesne profits. Their case was that the plaintiffs and Ismail Sab, the deceased father of plaintiffs 1 to 3, executed in favour of the defendant a deed of mortgage by conditional sale dated 22-10-1936 for Rs. 4,000/-. It was stipulated therein that II the plaintilis paid "Rs. 4,000/- within the time fixed in it the defendant should reconvey the property to them; that though they had arranged for the payment and tendered the amount within time, the defendant had deliberately evaded to receive it. 1a. The defendant denied that the deed of 22-10-1936 was in the nature of a mortgage by conditional sale. It was really a deed" of sale with a condition for reconveyance and as the plaintiffs had not paid or tendered the amount in time as stipulated therein they were not entitled to any relief. The Subordinate Judge held that the deed in question was really a sale deed and the transaction was really a sale with a condition for re-purchase and not a mortgage and that the plaintiffs had failed to prove that they tendered the amount within the time stipulated. He, therefore, dismissed the suit. The plaintiffs have preferred this appeal.

(2.) In this Court, it is contended by Mr. Iqtaal Hussain, learned Counsel for the Appellants, that the document Ex. A is in reality a deed of mortgage and not a sale deed. He urges that the value of the property at the time of its coming into existence, and the circumstance that the agreement to reconvey is embodied in the same document and not in two separate documents, are strongly in favour of his contention. He has referred to the proviso added to Section 58, Transfer of Property Act by Section 16 of the amending Act 16 of 1938 and relied on cases of this Court reported in '51 Mys HCR 187 (A)' and --'Puttasamiah v. Nagappa', 15 Mys L J 64 (B). As observed by Sulaiman, J. in -- 'Mathura Kurmi v. Jagdeo Singh', AIR 1927 All 321 (C) the singleness of the transaction though a strong test is not a conclusive one to hold that the transaction is a mortgage. The proviso merely declares that a transaction which is to be treated as a mortgage by conditional sale shall be deemed to be a mortgage only if the condition is embodied in the document which effects or purports to effect the sale. It is no authority for holding that merely because the condition is embodied in the same document the transaction must be deemed to be a mortgage. The same view has been affirmed in '51 Mys H. C. R. "187' at p. 201 (A).

(3.) The learned Subordinate Judge has found that the market value of the suit house at the time of Ex. A was not much in excess of Rs. 4,000/- for which sum it was conveyed to the defendant. He has referred to the evidence of P. W. 1 who has stated that its value was about Rs. 8,000/- or 10,000/- when Ex. A was executed and that the plaintiffs agreed to sell it to him for Rs, 8,000/under Ex. B dated 20-10-1340 and has not accepted that evidence and that of P. W. 2 who has attested Ex. B as that evidence relates only to the market value in October 1936. P. Ws. 1 and 2 have given a grossly exaggerated value of the property as Rs. 20,000/- at the time of their giving evidence and P. W. 1 is clearly interested in supporting the plaintiffs; the learned Subordinate Judge has referred to the improbability that the plaintiffs could have agreed to sell it to him for Rs. 8,000/-in 1940 if its value was Rs. 10,000/- or more in 1936 and that prices could not have fallen since 1935. Apart from the evidence of the defendant and his witnesses on which the learned Subordinate Judge has relied for his finding on this question of market value, there is the circumstance that the plaintiffs have asked for mesne profits for the property at Rs. 30/- per month which capitalized would give about Rs. 5,000/-as the value of the housa at the time of the suit in September 1946. In 1936, it must have been much less. The annual assessment on the house is also only about Rs. 8/- and the house is described in the plaint as well as in Ext A as a country tiled house.