E S VENKATESHA GUPTA Vs. SAVITHRAMMA

JUDGEMENT

(1.) At the stage of admission, Respondents Nos. 1 to 3 have entered caveat. Notice to other respondents has been dispensed with, as they had remained ex-parte in the lower Appellate Court except Respondents Nos. 5, 6, 10, 15, 18 and 19 who have been deleted on the basis of the memo filed by the appellant. They are the subsequent purchasers from the appellant. They failed to prefer an appeal against the Judgment and decree of the lower Appellate Court which have gone against them. The records of the case are received.

(2.) 2.1. In the light of the contentions urged enboth sides, the following substantial question of law arises for consideration. Hence the appeal is admitted. It is heard for final disposal. 2.2. The substantial question of law is as to whether the document Ex. P. 4 is a mortgage by conditional sale or sale with a condition of reconveyance? 2.3. The appellant is 2nd Defendant. Respondents 1 to 3 are the plaintiffs 1 to 3. The appeal is preferred against the Judgment and decree dated 16-7-1988 passed by the Civil Judge, Madhugiri in R.A. No. 65/1984 confirming the Judgment and decree passed by the Munsiff, Pavagada, in O.S. No. 221/1979, dated 18-7-1984. Following are the suit properties: 1. "Properties situated in Y.N. Hosakote, Pavagada Taluk, Sy. No. 233 bounded on the East: Land of Sri Seshagiri Rao, West: Land of Jayamma Mazid, North: Land of Arila Subbarayappa and on the South: Kunte Kelagala Thota. ,Out of this dry 6 acres 29 guntas assessed at Rs. 1.75 paise from West to East. 2. Sy. No. 255 bounded on the East: Kunte Kelagala Thota, West: Kotigudda and Manjappa Thopu, North: Seshagiri Rao's land, South: Kandadadlu Venkateshaiah's Thopu and Sy. Nos. 236 and 237. Dry 5 acres assessed at Rs. 1.12 paise from southern side to the Northern side from the Hadbust. 3.Sy. No. 236-Bagayath, bounded on theEast: Kunte Kelagala Thota, West: Sy. No. 237, Sy. No, 236, South: Second defendant's land, out of this 1 acre 26 guntas from the Southern Habdust to the Northern side assessed at Rs. 1.12 paise. 4. Sy. No. 237, bounded on the East: Sy. No.236, West: Kondagaddalu Venkata Swamiah's Thopu, North: Seshagiri Rao, South: Land of second defendant, out of this from Southern Hadbust to the Northern side, 1 acre 8 guntas. assessed at Rs. 0-75 paise. Half share in ten tamarind trees in Badagiyarana Thopu. There were two brothers by name Gopala Rao and Seshagiri Rao. They were the owners of the suit properties and also the other half of them. They executed an usufructuary mortgage-deed dated 11-12-1940-Ex. D. 1 in favour of one Ear- nati Seethaiah and Company in respect of the suit properties and other half of them. The lower Appellate Court has mainly proceeded to consider the question as to, whether Ex. D. 1 is a mortgage by conditional sale or a sale with a condition of reconveyance. It appears to me that the lower Appellate Court has unnecessarily gone into this question, because admittedly parties have executed Ex. P. 4 dated 27-11-1946 superseding the earlier document Ex. D. 1, dated 11-12-1940, in favour of Earanti Seethaiah and Company. By the time Ex. P. 4 came to be executed, Gopala Rao was no more. Therefore, the plaintiffs i.e., the wife and two sons of Gopala Rao and his brother Seshagiri Rao together ex- ecuted Ex. P. 4. The point urged in this appeal is that Ex. P. 4 is a sale with condition of reconveyance and not a mortgage by conditional sale. Therefore, it is necessary to advert to the relevant recitals contained in Ex. P. 4: <IMG>JUDGEMENT_477_KANTLJ1_1991Image1.jpg</IMG> <IMG>JUDGEMENT_477_KANTLJ1_1991Image2.jpg</IMG> "It may also be noticed that at the time when this document was executed, the children of Gopala Rao were minors. Therefore, the first plaintiff executed the document on her behalf and also on behalf of her minor sons as their guardian.

(3.) Before considering the question as to whether Ex. P. 4 is a mortgage by conditional sale or a sale with a condition of reconveyance. it is also necessary to mention some more facts which are also not in dispute. After Ex. P. 4 was executed by Seshagiri Rao and the plaintiffs, Seshagiri Rao himself executed a sale deed on 30th August, 1947 Ex. P. 2 in favour of Defendant No. 1 conveying his right, title and interest in the other half portion of the lands involved in the present suit. Thus the suit properties are the half portions of survey numbers which were owned by Gopala Rao and Seshagiri Rao.