RADHAKISAN HIRALAL LADHE Vs. TRIMBAK MARUTI MURDARE

JUDGEMENT

(1.) THESE two appeals arise out of almost identical facts and raise common questions for decision. They can, therefore, be conveniently dealt with together.

(2.) THE parties to both the appeals are the same and figure in the same capacities. The appellant and respondent No. 2 are brothers. They owned three lands bearing S. Nos. 19,20 and 15 situate at village Bhagur in Ahmednagar District. On 5-4-1954 the first two of these lands came to be transferred to respondent No. 1 by a conditional sale-deed for a consideration of Rs. 5000. Respondent No. 2 being then a minor, the sale-deed was executed by the appellant and by Rambhai, the mother of the appellant and respondent No. 1, acting as guardian of respondent No. 2 A similar conditional sale-deed was executed in favour of respondent No. 1 on 1-6-1954 in respect of the third land, viz. S. No. 15, for a consideration of Rs. 4000. Possession of the lands comprised in the two sale-deeds was delivered to respondent No. 1 on the dates of the respective sale-deeds.

(3.) IN 1956 the appellant filed two suits against respondent No. 1 in the Court of the Civil Judge at Shevgaon in respect of the aforesaid two transactions alleging that the transactions were really mortgage transactions and praying for the relief of redemption and possession. Respondent No. 2 was joined in both the suits as defendant No. 2. The suits were resisted by respondent No. 1 but the trial Court held the transactions to be mortgages and passed preliminary decrees for redemption in both the suits on 14-3-1958. The decree in suit No. 63/56 relating to S. Nos. 19 and 20 declared the amount due on the mortgage to be Rupees 5000 and gave time to the appellant to pay the same till 14-9-1958 and to get the mortgaged lands redeemed. It was further directed that the appellant was entitled to a credit of Rs. 300 per annum on account of the income of the suit lands from the date of the decree. It was also directed that on failure of the appellant to deposit the amount within the time fixed or the extended time. If any, respondent No. 1 would be entitled to apply for a final decree for foreclosure. The parties were directed to bear their respective costs. Respondent No. 2 had contended that the mortgage was not binding on him and that contention was accepted by the Court but that aspect of the matter is no material for the purposes of these appeals. An exactly similar decree was passed in Suit No. 101 of 1957 relating to the mortgage of S. No. 15. The only difference being that the amount due on the mortgage was determined as Rs. 4000 and the annual income for which the appellant was to get credit was fixed at Rs. 240 per annum.