SAVITRI ANTHARJANAM Vs. EAPPEN

JUDGEMENT

(1.) THIS is an appeal from a decree directing the 1st defendant to execute a sale deed in favour of plaintiffs 2 and 3 for the properties scheduled to the plaint and to deliver possession of the same to them on receipt of Rs. 10,000. The appeal was preferred by the 1st defendant. The additional 2nd appellant is a person who obtained a mortgage of part of the properties from the 1st defendant during the pendency of the suit.

(2.) THE allegations in the plaint may be briefly stated. THE 1st plaintiff is the father of the 2nd plaintiff who was a minor on the date of suit. THE 1st plaintiff died during the pendency of the suit and his widow was impleaded as additional 3rd plaintiff. THE 2nd defendant) is the husband of the 1st defendant and he holds a general power of attorney from the latter. THE 3rd defendant is stated to be a lessee of the properties. THE plaint properties belonged to plaintiffs 1 & 2. On 6-11-50 the 1st plaintiff acting on his own behalf and as guardian of the 2nd plaintiff sold the plaint properties to defendants 1 & 2, executing a sale deed in the 1st defendant's name. THE sale deed happened to be executed in the following circumstances. As plaintiffs 1 and 2 required some money, the 1st plaintiff approached Defendants 1 and 2 on 1-11-1950 with a request for a loan and they agreed to give the same on proper security. Accordingly the 1st plaintiff went to the residence of defendants i and 2 on 6-11-1950 to complete the formalities of executing the deed of security when he was told that they were not prepared to take a security deed but that they would pay the amount in case a sale deed was executed for the properties offered as security. THEy further agreed that the properties would be reconveyed whenever required, on payment of the sum advanced by them. It Was also agreed that if reconveyance was to be executed before the harvest for any year was taken, Defendants I and 2 were to be paid interest at 6 per cent for that year. As respectable mediators were present at that time, the contract to reconvey the properties was not reduced to writing. Pursuant to this contract the sale deed was executed on 6-11-1950. On 15-12-1950 the plaintiffs informed Defendants 1 and 2 that they were ready to repay the amount and that the properties should be reconveyed. This was followed by a registered notice sent through the plaintiffs' Advocate on 3p1-1951. Defendants 1 and 2 have declined to reconvey the properties and the suit was therefore filed for compelling Defendants 1 and 2 to execute the deed on payment of Rs. 10,000 and interest till the date of suit and to surrender possession of the properties. It was further prayed that in case this relief could not be allowed, Defendants 1 and 2 should be made liable for damages amounting to Rs. 5,000. THE plaintiff also prayed for recovery of mesne profits at the rate of rs. 600 per annum as we 11 as costs of suit.

(3.) THE main question arising for decision is whether the safe deed was executed in the circumstances pleaded by the plaintiffs and whether the alleged agreement to reconvey the properties is true. It may be stated at the outset; that there is no evidence regarding the negotiations which are stated to have taken place on 1-11-1950. Such evidence as the 1st plaintiff might have been able to furnish was not available as he died before he could be examined. THE' Additional 3rd plaintiff had nothing to do with the transaction and she could, not therefore give any useful evidence on the point. THE defendants deny the' allegation that the negotiations were for a loan of rs. 10,000/- on the security off immovable property. THEre is thus no evidence to hold that the original request was for a loan and that the same was agreed to by Defendants 1 and 2.