BAI KANKU Vs. VICTORBHAI KANJIBHAI KHRISTI

JUDGEMENT

(1.) This is a second appeal filed by the original defendant who was the respondent in Civil Appeal No. 303 of 1960 of the District Court of Kaira at Nadiad. The present respondents who were the original plaintiffs in Civil Suit No. 176 of 1960 filed by them in the Court of the Civil judge (J.D.) at Nadiad are the heirs of the deceased Kanjibhai Trikambhai Khristi The deceased Kanjibhai was the owner of a house Vada and Angana appurtenant to it situated in a Maholia known as Navavas in Mahudha town District Kaira. On 10th January 1952 he passed the deed in question described as a conditional sale-deed Ex. 16 for a consideration of Rs. 800.00 in respect of the said properly to the present appellant-defendant Bai Kanku the wife or Khristi Punamchand Kanjibbai. The possession of that property was delivered by the executant to the executee on the same day. The document contains a stipulation that the house was to be returned back to the executant if he pays the amount of Rs. 800.00 being the consideration paid at the time of the transaction in question within a period of five year from the date of the document. Kanjibbai the executant died on 12th June 1959 The present suit was brought by his heirs on 25th April 1960 for the redemption of the mortgage on the allegation that though the document was ostensibly a sale-deed was really in the nature of a mortgage. In the plaint they had also alternatively stated that in case it was found to be out and out a sale document they were entitled to the specific performance of the agreement contained in the document. However no relief was claimed for specific Performance. No issue was sought for on that point and in the appeal also before the District Court no contention was urged in that respect. The only contention urged was that the transaction in dispute was really a mortgage transaction. The contention raised by the present respondents did not find favour with the learned trial Judge and eventually he dismissed the suit with costs.

(2.) Against that judgment and decree the original plaintiffs preferred the aforesaid Civil Appeal in the District Court of Kaira at Nadiad. Learned District Judge Mr. V. R. Shah (as he then was) found that the transaction in question was really a mortgage transaction. It was a mortgage by conditional sale. It was not out and out a sale transaction with a right to repurchase. In view of that finding of his he ordered that a usual preliminary decree for redemption be passed in Form No 7(c) in Appendix D of the Civil Procedure Code. The appellants of that appeal were to get the costs of the appeal and the suit from the respondent who in turn had to bear her own costs in both the Court.

(3.) Being dissatisfied with that judgment and decree the original defendant has preferred the present second appeal to this Court.