UTTAM SITARAM MALAWADE Vs. VISHWASRAO NAGESHRAO

JUDGEMENT

(1.) Heard advocate for the appellants. The appellants are the original defendant Nos. 1 and 2. The respondent No. 1-plaintiff filed a suit for redemption of mortgage dated 20th July, 1972. According to the case of the respondent No. 1-plaintiff, the suit property is an ancestral property of the plaintiff and the respondent Nos. 2 to 5. After the demise of the father of the respondent Nos. 2 to 5, the name of the second respondent was entered in the revenue records as manager of the joint family. The allegation in the suit is that without legal necessity, the second respondent without the consent of the first respondent and third to fifth respondents executed a possessory mortgage dated 20th July, 1972 in favour of the father of the appellants. It is alleged that the said deed of Mortgage is illegal and is liable to be cancelled. In the alternative it was submitted that the respondent No. 1-plaintiff and the respondent Nos. 2 to 5 are entitled to obtain redemption of mortgage by paying the mortgage amount. As the appellants declined to hand over possession, the present suit has been filed.

(2.) The appellants filed written statement and contended that on 22nd august, 1982 the second respondent has executed an Agreement for Sale in favour of their father for consideration of Rs. 50,000/- and the first respondent and the respondent Nos. 2 to 5 have received a sum of Rs. 30,000/- under the said agreement. The appellants made a counter claim for declaration that they have become owners of the suit property.

(3.) The trial Court dismissed the suit filed by the first respondent by holding that though the transaction dated 20th July, 1972 was in the nature of a mortgage by conditional sale, by virtue of Agreement for Sale dated 22nd February, 1982 the transaction dated 20th July, 1972 has come to an end. The appeal preferred by the original plaintiff-first respondent has been allowed by the District Court by holding that the mortgage dated 20th July, 1972 executed by the third defendant in favour of the appellants stands redeemed. There is a decree for possession passed against the appellants.