B VSUNDARIAH Vs. B RRAMASASTRY

JUDGEMENT

(1.) The plaintiff sued the defendants for recovery of possession of the plaint schedule property, which is a piece of garden land, on the strength of a sale deed dated 1-11-1939 executed by defendants 1 and 2 for themselves and by defendant 1 as manager of a joint-family and as guardian of his then minor son defendant 3. He pleaded that he had been in possession and was dispossessed in October 1947. Defendant 1 pleaded that the sale deed Ex. 11 on which the plaintiff relied, was not meant to effect a sale and intended only as a security for the amount advanced by the plaintiff thereunder. Moreover as the plaintiff had been required under that deed to pay off an earlier debt due to defendant 4, a co-operative society which had obtained a decree against him and purchased the property in execution but had failed to do so, the plaintiff could not enforce the document. The society had subsequently sold the property to defendant 3 to whom it now belonged. Defendant 2 pleaded that he merely signed Ex. 11 as desired by the plaintiff and was not liable for the suit claim. Defendant 3, who is the main contesting defendant in the suit and who has now come up in second appeal, pleaded that he had purchased the property from defendant 4 from out of his own self-acquisitions under a sale deed Ex. 3 on 16-10-1944 and that the plaintiff had never been in possession of the suit property. He, however, admitted that the property in suit had been hypothecated to the Society by defendant 1 who was then the manager of the family for a purpose binding on the family. No question therefore now arises as to the binding nature of the debt which was due to defendant 4.

(2.) Both the Courts below have rightly held that the suit property is not the self-acquisition of defendant 3 but belonged to the family of defendant 1 and his sons Defendants 2 and 3 as admittedly they are members of a joint-family. They have also held that Ex. 11 was really a sale deed and was not intended to evidence a mortgage and have accordingly decreed the plaintiff's, suit.

(3.) I think the judgments of the Courts below are correct and must be upheld. The concurrent finding of the Courts below is that Ex. 11 was really meant to convey the property by way of sale to the plaintiff and was not intended to be a mortgage. Though, defendant 1 pleaded in his written statement that Ex. 11 was intend-to be a mortgage, his witness, D.W. 5, has deposed that the plaintiff told him during the earlier negotiations preceding Ex. 11 that defendant 1 might execute a sale deed and take a reconveyance whenever he wanted and that he asked defendant 1 to execute a sale deed. He also suggested that agreements might be written in respect of the two sale deed Exs. 11 and 12. An agreement Ex. 13 dated 2-11-1939 has been executed in favour of defendant 1 by the plaintiff. Under that agreement the plaintiff has agreed to reconvey an item of property which had been sold to him under Ex. 12 dated 1-11-1939 for Rs. 350/- back to defendant 1 if he paid that sum within three years. A similar agreement of reconveyance has not been taken in respect of the sale under Ex. 11 which was also on the same date as Ex. 12. The explanations that there was only one stamp paper availble, that Ex. 13 was written up on it and that the execution of a similar agreement in respect of Ex. 11 was postponed and that while three years period was stipulated for the reconveyance of the property covered by Ex. 12, no such period was at all stipulated in respect of Ex. 11 properties are obviously unconvincing and has been rightly rejected by the Court below. Defendant 1 who was examined as D.W. 3 has deposed that the plaintiff told him that he might pay Rs. 1,000/- at any time and take a reconveyance and has not let in any evidence that Ex. 11 was really intended to be a mortgage.