B AMIN BEE Vs. S D M SAKALESHPUR

JUDGEMENT

(1.) These writ petitions were heard together and are disposed of by a common order as they involve common questions of law. W.P. No. 410177: In this petition under Arts. 226 and 227 of the Constitution, the petitioner who has purchased the agricultural land measuring 2 acres 31 guntas in Sy. No. 62 of Belur, Taluk Belur, district Hassan, from the 3rd respondent under a registered sale deed dated 18-7-1968, has challenged the correctness of the order passed by the Sub Divisional Magistrate, Sakaleshpur Sub Dn., Sakaleshpur, in Case No. DRC. 132/76-77, dated 28-10-1976 allowing the application filed by the 3rd respondent under S. 4 (f) of the Karnataka Debt Relief Act, 1976 (hereinafter referred to as the Act') and further directing the petitioner to hand over the possession of the land in question to the 3rd respondent.

(2.) Before the Sub-Divisional Magistrate, a registered sale deed! dated 18-7-1968 and also another registered document of the same date executed by the petitioner in favour of the 3rd respondent agreeing to re-convey the property sold under the aforesaid sale deed on payment of the amount named therein, were produced. On reading these two documents together and on the basis of the recitals contained in the agreement of re-conveyance, the, Sub-Divisional Magistrate has come to a conclusion that the sale was only nominal. He has also further held that the transaction was one of mortgage and has accordingly declared that the alleged debt under the document stood discharged. The Sub-Divisional Magistrate has not recorded a necessary finding as to whether the 3rd respondent, was a debtor within the meaning of the Act. Without recording a, positive finding about the 3rd respondent being a debtor within the meaning of the Act, the application of the 3rd respondent filed under S. 4 (f) of the Act, could not have been allowed by the Sub-Divisional Magistrate. On this score alone, the impugned order would have been quashed and the matter would have been remitted for fresh consideration. But, it was contended, on behalf of the petitioner that in view of the i'act that the transaction in. question being one of sale, there is no scope for remitting the matter for fresh consideration.

(3.) Sri S. Vijayashankar, the learned Counsel for the petitioner, submitted that the Sub-Divisional Magistrate had no jurisdiction to enquire into the, transaction evidenced by a registered sale deed as to whether the transaction was one of mortgage or sale. In other words, it was contended that the Sub-Divisional Magistrate had no jurisdiction to go behind the document and enquire into the nature of the transaction in view of the fa,ct that the transaction in question was evidenced by a registered sale, deed. Merely because the petitioner has executed an agreement of re-conveyance of the same date, it was contended that it cannot be held that the transaction was one of mortgage, therefore, the Sub-Divisional Magistrate had no jurisdiction to go into the matter and to declare that the transaction, in question was one of mortgage. It was also further submitted that in view of the provisions contained in the proviso to S- 58 (c) of the Transfer of Property Act, the document of sale shall not be treated to be a mortgage unless the condition, is embodied in the document which effects or purports to effect the sale. Relying upon the aforesaid proviso, it was contended that in the instant case, the agreement of re-conveyance having been incorporated in a separate document, both cannot be, read together in order to find out whether the transaction is a mortgage. It was also further contended that the execution of a separate agreement of re-conveyance is itself proof of the fact that the transaction evidenced by the document in question was an absolute sale as otherwise, there was no question of re-conveyance.