PADMASHREE S N SWAMY Vs. GOWRAMMA

JUDGEMENT

(1.) This second appeal is directed against the judgement and decree dated 13-7-1981 in R. A. No. 23 of 1979 passed by the learned District Judge, Mysore, whereby the learned District Judge reversed the judgement and decree dated 17-3-1979 made in. O.S. No. 186 of 1973 by the learned Principal Civil Judge, Mysore.

(2.) Facts in brief are :- The appellant is the plaintiff and the respondent is the defendant in the trial court. The plaintiff filed a suit for redemption and directing delivery of possession of the suit schedule property on the plaintiff paying a sum of Rs. 16,000/- to the defendant within three months and further directed the defendant to pay the costs of the suit to the plaintiff. On 23-11-1961, the plaintiff and his father executed a mortgage deed by conditional sale for Rs. 16,000/- in favour of the defendant with a clause of repurchase upon repayment of the said amount within two years. The plaintiff has further alleged that on the same day the plaintiff executed a lease deed in favour of the defendant agreeing to pay rent at the rate of Rs. 110/- per month by way of interest on the mortgage debt. The defendant was not put in possession of the suit property. It is further stated in the plaint that the plaintiff's father died leaving behind him as the sole heir. The plaintiff issued a notice offering to pay the mortgage money; but the defendant did not send any reply. As such, the plaintiff was constrained to file a suit for redemption.

(3.) The defendant in his written statement has contended inter alia that the suit transaction is not a mortgage by conditional sale, but it is an absolute sale with an option to repurchase within the period stipulated viz., two years from the date of execution of the document. Since the plaintiff's vendors did not exercise that option the suit filed by him for redemption is not maintainable and it is barred by time. The defendant also denied that there had been any lease deed in her favour. Further, she has denied that she was not in possession of the suit house. Alternatively, the defendant has pleaded that she had effected improvement by spending Rupees 10,000/-. Further, she denied that the plaintiff is the sole heir, and contended that the two grand sons of Singachar who have signed the document are necessary parties and the suit is bad for non-joinder of necessary parties.