GUNDU RAO Vs. GURRAJACHAR

JUDGEMENT

(1.) this is the defendants' appeal against a judgment of reversal plaintiff had filed the present suit on /-1-1970 for redemption of the suit schedule property and for recovery of possession.

(2.) admittedly, plaintiff as owner had created an usuf ructuary mortgage over the suit property in favour of gundu rao-defendant 1 to secure a loan of Rs. 100/- taken by him which is evidenced by a mortgage deed dated 2-8-1935 (exhibit p-1). As a consequence of this transaction defendant 1 as mortgagee came into possession of the said property. One of the conditions embodied in the said deed was that if the loan is not paid on expiry of eight years from the date of transaction, the said document will be treated as an absolute deed of sale (shuddha kraya patra). It is not in dispute that the plaintiffs could not redeem the property as per the stipulations in the mortgage deed. Consequently, the mortgagee sold the property to late gujar mallaiah, father of defendants 2 to 8 under a registered sale deed dated 15-9-1947 (exhibit d-7). The said defendants are presently in possession of the property.

(3.) plaintiff in the plaint asserted his right of redemption by pleading that keeping in view the terms of mortgage the right of redemption accrued to him on expiry of 8 years from the date of mortgage i.e. 2-8-1943, and since the mortgagee in the meantime has conveyed the property to defendants 2 to 8 through their father, he is entitled to the relief claimed. Defendants resisted the suit inter alia pleading that their father had purchased the suit property as bona fide purchaser keeping in view the term of the mortgage deed which conferred an absolute title on their vendor (defendant 1) on expiry of 8 years from the date of mortgage. Their further case was that since the plaintiff had the knowledge about the transfer of title in their favour right from the date of execution of the sale deed dated 15-9-1947, the suit is barred by limitation as prescribed under Article 61(b) of the schedule to the limitation Act, 1963. The trial court accepting the plea of the defendants dismissed the suit.