RUDRA MUNISWAMY Vs. MALLIKARJUNAGOUD

JUDGEMENT

(1.) Of course, learned Counsel for the appellant is justified in submitting that the lower Appellate Court was not justified in holding that the agreement of reconveyance is impermissible in law, because it is not incorporated in the sale deed Ex.p.1 and as such it does not fall under Section 58(c) of the Transfer of Property Act. The learned Judge does not appear to have read clause (c) of Section 58 of the Transfer of Property Act correctly. If a recital as to reconveyance is contained in the sale deed itself, in the facts and circumstances of the case, and on taking into consideration the terms of the document and all attending circumstances which will have a bearing on the intention of the parties, it will be open to the Court to decide whether the document is one of sale out and out or a mortgage. Thus the proviso to clause (c) of Section 58 of the Transfer of Property Act does not govern and apply to where there is an independent separate agreement of reconveyance entered into by the parties. Even after executing a deed evidencing absolute sale, the parties can still enter into an agreement of reconveyance either orally or by way of written document and such an agreement may either be contemporaneous or subsequent to execution of the sale deed. Such agreement is permissible in law and evidence with regard to such oral agreement can be adduced. Sections 91 & 92 of the Evidence Act do not come in the way of pleading and proving such an agreement.

(2.) If the matter stood at that, probably the argument of Sri Jayavittal Kolar, learned counsel for the appellant that the decree for -possession passed by the lower Appellate Court is not sustainable in law should have been accepted. In the instant case, no doubt the agreement of reconveyance, came into existence after the execution of the sale deed dated 7-6-1976; but subsequent to such agreement of reconveyance there was another agreement executed by the first defendant which was produced and marked as Ex.p.2 and the execution of which was not disputed. The said document reads thus: <IMG>JUDGEMENT_367_KANTLJ3_1989Image1.jpg</IMG> <IMG>JUDGEMENT_367_KANTLJ3_1989Image2.jpg</IMG>

(3.) A reading of the aforesaid document makes it clear that the parties gave up the agreement of reconveyance and the vendor namely the first defendant agreed to give up possession of the remaining portion of the property sold under the sale deed. Therefore, in the light of Ex.p2 dated 11-4-1980, it is not now open to the first defendant to plead or claim any right or defend his possession on the basis of the agreement of reconveyance.