GURAPPA NINGAPPA PATNE Vs. BASAWANAPPA APPARAO KILJE

JUDGEMENT

(1.) THE petitioner-applied to the Debt Adjustment Court at Akalkot for adjustment of his debts and claimed a declaration that an agreement of sale, dated 10-9-1942 under which, Ningappa Patne, father of the petitioner received Rs. 600/- from the respondent Baswannappa as price of certain property delivered by him was a transaction in the nature of a mortgage and for an order that the property be redeemed alter adjustment of his debts under the B. A. D. R. Act and for an order for possession. The application was resisted by the respondent Baswannappa. The learned trial Judge held that the transaction evidenced by the agreement, dated 10-9-1942, was intended to be a mortgage and Rs. 268/- were at the date of the application due by the petitioner under that mortgage. The learned Judge directed that the petitioner do pay the amount declared to be due in instalments specified in the order and that a charge be retained for those instalments on the property agreed to be conveyed. Against that order an appeal was preferred to the District Court at Sholapur. The learned Assistant Judge, who heard the appeal, held that an agreement of sale could not be regarded as a 'transfer' the real nature whereof could be ascertained under Section 24, B. A. D. R, Act. The learned Judge observed that an agreement of sale does not create interest in immoveable property and is not a transfer contemplated by Section 24, B. A. D. R. Act, and that there being no transfer, the question of ascertaining the real nature of the transfer could not arise. The learned Judge also held that even on the assumption that there was a transfer, the evidence in the case established that it was intended to be an absolute conveyance of the interest of the trans-leror in the property and was not intended to be a security for the consideration paid. The learned Assistant Judge reversed the order passed by the trial Court and dismissed application No. 166 of 1949 filed by the petitioner. The petitioner has applied to this Court In revision.

(2.) THE petitioner stated that his father Ningappa executed on 10-9-1942, an agreement to sell for Rs. 600/- to one Baswannappa Appurao four strips of land Section Nos. 109. 88, 89 and 109 situate et Eorgaon at Taltika Abalbot which were previously mortgaged under a simple mortgage dated 4-12-1929 for Rs. 400/- to Baswannappa. The petitioner by his application for adjustment of debts contended that the agreement to sell was in reality a mortgage and Baswannappa had agreed to return the land in dispute against repayment of Rs. 600/ -. Baswannappa contended that the previous mortgage was satisfied and thereafter possessioa of the property was delivered to him under an agreement to sell the property executed by Ningaupa. He denied that he had agreed to reconvey the property on repayment of the amount of Rs. 600/- and contended that the petitioner was not a debtor within the meaning of the B. A. D. R. Act and an application under Section 24 could not be maintained for ascertaining the 'real nature' Of the agreement to sell.

(3.) THE learned trial Judge held that the petitioner was a debtor within the meaning of the B. A. D. R. Act and that the agreement, dated 10-9-1942. was in the nature of a mortgage. Against that order an appeal was preferred to the District Court at Sholapur being appeal No. 257 of 1950. In that appeal the proceedings were remanded to the trial Court for a fresh trial and disposal according to Jaw. The learned appellate Judge observed that the petitioner was a debtor and also an agricultural labourer. The learned Judge was however of the view that it was doubtful whether a mere agreement to sell can be regarded as a transfer of land within the meaning of Section 24 (1) of the B. A. D; B. Act. Objection was raised about the proper presentation of the application in Court and that, according to the learned appellate Judge, had not teen properly dealt with by the Court of first Instance and it was necessary to adjudicate upon that question. Upon remand the case was reheard by the trial Court and the original order was reaformed. Again an appeal was preferred by Baswannappa being appeal No. 217 of 1952 and in that appeal, as I have already observed, the learned appellate Judge held that the transaction was not a transfer of which the real nature could be ascertained under Section 24 (1) of the B. A. D. R. Act and even if 16 could be ascertained, it could not be regarded as a mortgage.