GURRAPPA GOWDU Vs. PETHANNA ALIAS GURRAPPA

JUDGEMENT

(1.) THE defendant who could not succeed before the courts below has preferred this second appeal. During the pendency of this appeal the sole appellant died and his legal representatives have been impleaded to get along with the appeal.

(2.) THE plaintiffs filed the suit for declaring the mortgage by conditional sale deed as wholly been discharged as per the provisions of the Tamilnadu Act 31 of 1976 and 40 of 1978, for delivery of possession and for mesne profits. The gist of the plaintiffs' case is that they have mortgaged the suit properties to the defendant and borrowed a sum of Rs. 2000/= on 24. 8. 1955 for discharging the mortgage debt due to one Thakkala Venkatasamy and other sundry debts and for family expenses and executed a registered deed of mortgage by conditional sale on that date. As per the terms of the deed of mortgage by conditional sale, the plaintiffs should repay the sum of Rs. 2000/= to the defendant in six years and to get back the properties. The defendant was given possession of the suit properties and he should pay the kist for the suit lands. The suit properties were more than Rs. 15,000/= even at the time of execution of the mortgage by conditional sale. The suit properties are 4. 25 acres in extent and there are money yielding trees for worth about Rs. 7,000/= per year. The patta stands in the name of the plaintiffs even though the properties were delivered to the possession of the defendant on 24. 8. 1955. The mortgage by conditional sale is covered by Section 58 (c) of the Transfer of Property Act and the intention of the parties is not to create an outright sale. The plaintiffs are entitled to redeem the properties within a period of 30 years after the time allowed for paying the amount namely 6 years had elapsed. The plaintiffs are agriculturists and are entitled to the benefits of the Tamil Nadu Act IV of 1938, Tamil Nadu Act 40 of 1979 and thus they are entitled to redeem the whole of the properties mortgaged without paying any amount as per the provisions of Section 9 of the said Act. As per section 4 of Tamilnadu Act 31 of 1976 the debt is deemed to have been wholly discharged by the plaintiffs. The plaintiffs sent a notice on 19. 1. 1985 to which the defendant also sent a reply dated 19. 2. 1985 containing false allegations. The condition to repay the amount within a period of 6 years and to get back the suit properties incorporated n the document itself makes the said deed only a mortgage by conditional sale as defined in Section 58 (c) of the T. P. Act. The defendant's continued possession of the suit properties is unlawful and hence he is bound to pay mesne profits for the continued enjoyment of the sit properties.

(3.) THE defendant's case in short is that the suit document dated 24. 8. 1955 is not a mortgage by conditional sale, the plaintiffs have earlier incurred and borrowed Rs. 500/= and Rs. 300/= under two mortgage deeds dated 3. 1. 1948 and 25. 10. ,1948 from one Venkataswamy and as they could not discharge the said mortgage debts, the mortgagor filed suit against the plaintiffs to recover the amounts due. The plaintiffs in order to discharge the mortgage debts due to the said Venkataswamy, approached the defendant offering to sell the suit properties except suit item No. 6. Accordingly, the sale price was fixed taking into consideration the market value of the properties at Rs. 2000/=. The defendant stipulated that the debts due under the said mortgage deeds will be deducted from the sale price and the balance alone will be paid to the plaintiffs. At the time of the sale deed dated 24. 8. 1955 in favour of the defendant by the plaintiffs the plaintiffs requested that they shall be allowed to repurchase the properties from the defendant for a sale consideration of Rs. 2000/= if the plaintiffs were ready and willing to purchase the same at their costs within a period of 6 years from the date of sale deed dated 24. 8. 1955. At the time of the sale deed, there was no intention to create any relationship of mortgagor and mortgagee between the plaintiffs and the defendant. The suit document in question is an outright sale in favour of the defendant validly supported by consideration. The defendant also discharged the mortgagee debts by paying Rs. 875/= to Venkataswamy personally and the original mortgage deeds were duly returned to the defendant as no suits were filed by the said Venkataswamy as threatened by him earlier. According to the defendant as the plaintiffs had raised crops already on the lands sold to the defendant at the time of sale, the plaintiffs requested the defendant to lease the lands sold for a period of 5 years and accordingly the defendant and the plaintiffs entered into registered lease deed dated 24. 8. 1955 for a period of five years on the plaintiffs agreeing to pay the lease amount as stipulated in the lease deed. Accordingly the the lands were leased back to the plaintiffs by the defendant and in pursuance of the same, patta was also transferred in the name of the defendant and the defendant continued to pay kist as true owner. It is not true that the defendant entered into possession of the properties as a mortgagee and that the period of 6 years mentioned in the document is the period of redemption as alleged in the plaint. The period of 6 years stipulated in the document is only a period fixed only to enable the plaintiffs to repurchase the properties sold. If there were income yielding trees standing in the suit properties, the plaintiffs could have very well cleared the mortgage debts due to the said Venkataswamy and it was not at all necessary for the plaintiffs to execute the document in question in favour of the defendant. It is the defendant who developed and improved the land and he even dug a well. As the document is an outright sale and not a mortgage as contended, there is no question of any redemption of the same. Since the period of six years given to the plaintiffs to repurchase has long been expired, they have come forward with the present suit describing the suit document as a mortgage by conditional sale seeing the value of the properties very much enhanced. The plaintiffs are not small farmers nor rural artisans and they are not entitled to claim any benefits under any of the Debt Relief Acts as alleged as there is no debtor and creditor relationship between the plaintiffs and the defendants. The defendant has sent a reply to the notice issued by the plaintiffs and only after that the suit has been filed.