THUKKOJAPPA Vs. SANAHUCHAPPA

JUDGEMENT

(1.) Second Appeal No. 982/59 arises out of a suit brought by Satina Hochappa for a declaration that the document executed on September 3, 1945, in favour of Tulojappa which was marked in this litigation as Exhibit P-9 recorded only a mortgage by conditional sale and not a sale-deed. Sanna Hochappa having been found to be an agriculturist as defined by the Mysore Agriculturists' Relief Act, the Court of first instance allowed oral evidence to be produced in support of that contention. P.W. 5 the scribe or Exhibit P-9 and P.W. 6 its attestor, gave evidence in support of the case set up by Sanna Honechappa which was to the effect that he it was who constructed the house now existing on the site was also believed by book the Courts. The recorded a finding that Exhibit P-9 therefore was nothing more than mortgage by conditional sale and that Sanna Hochappa was entitled to the declaration which he rayed for.

(2.) Tukoappa who is aggrieved by this declaration made by the Courts below is the appellant in this second appeal and on his behalf Mr. Ramadas has urged that the finding recorded v by the Courts below is open to serious criticism since they did not find in the first instance that there was relationship of debtor and creditor between Sanna Hochappa and Tukojappa which according to Mr. Ramdas was and indispensable indispensable to be estabilished before the Courts below could have pronounced that Exhitbit P-9 recorded a mortgage by conditional sale and not a sale-deed. The contention urged by Mr. Ramdas is that unless there was some antecedent transaction between the parties which resulted in the relationship of a debtor and creditor between them, section 58 - Corporation of the Transfer of Property Act (forbids the transaction recorded in Exhibit P-9 being regarded as a mortgage by conditional Sale.

(3.) It is clear that this contention is entirely without substance and assumes that in order that there should be a mortgage by conditional sale there should be an antecedent transaction between the two parties who create a mortgage by conditional sale and that antecedent transaction should behave resulted in the first instance, in the relationship of debtor and creditor between them. If this argument is to be accepted it means, that not two parties can bring about a mortgage by conditional sale , if they have not met before and had not entered into a transaction bringing about relationship order debtor of debtor and creditor.