GONELA KRISHNAMURTHY Vs. KALIDINDI VENKATESWARAN

JUDGEMENT

(1.) THIS is an appeal preferred against the order made by the learned District Judge of Krishna in O. P. no. 11 of 1915.

(2.) THE facts are: The respondent before us and his late undivided brother Narasimha Rao borrowed a sum of Rs. 1600 from the deceased. Anjaneyulu father of appellants 1 to 3 and executed a registered mortgage deed in his favour, Subsequently on 9 -5 -1931 the mortgagors executed EX. B.1 styled as a deed of sale in respect of the immovable property for a Bum of Rs. 1682 8 -0 of a portion of the hypotheca plus an additional extent making the total extent sold larger in extent and undoubtedly in value though we have no specific evidence on that point, than the original hypotheca. This deed of Bale contained the usual covenants of sale and stipulated the following condition to reconvey: "You and we have agreed that in case, within three years from now onwards, that is, before 8 -5 1934, we pay to you the amount remaining after deducting from out of the amount of principal and interest accruing due on the sale amount of Rs. 1683 -8 - 0 with compound interest from now onwards at the rate of Be. 1 per cent per mensem with annual rest), that net income realised from the lands under sale after deluding the cists, etc., from now onwards till then, you shall, at our cost, reconvey the property to us. Moreover, it is agreed that the said instalment shall be the essence of this agreement." The property alleged to be sold seems to have been continued in the possession of the vendors because the vendors have neither filed patta in his name nor the kist receipt in his name for these lands. On the other hand, the petitioner in the lower Court has filed kist receipt book Ex. A 6 covering Aswaraopalam lands. It is in these circumstances that the petitioner has filed the O.P. for a declaration of the amount clue under this document of 9 -5 -1931 on the plea that he is an "agriculturist" and that this 1931 document is not an outright sale deed but only a mortgage by conditional sale.

(3.) THE learned District Judge of Krishna upheld the contention of the petitioner that the deed of 1931 is a mortgage by conditional sale and that he had jurisdiction under the Act IV of 1938 to give the declaration asked for, and allowed the petition, The defeated respondents in the lower Court appeal.