BADRUNNISA BEGUM Vs. MOHAMOODA BEGUM

JUDGEMENT

(1.) The appellant was defendant in a suit filed by the respondent being O. S. No. 306 of 1975 which was decided by IV Additional Judge, City Civil Court, Hyderabad. The suit was for reconveyance of house No. 22-8-389-1 and 2 situated at Purani Haveli, Hyderabad by executing a sale deed in favour of the plaintiff. The plaintiff's case was that she was owner of the house No. 22-8-389-1 and 2 at Purani Haveli. The defendant's husband had been dealing in money lending and he used to advance money with exorbitant rate of interest. To avoid legal complications he adopted the method of obtaining nominal, sham and formal sale deeds in respect of the properties in different names and through different persons to serve as security for the loan advanced. He also got executed rental deeds to realise the interest on the amount advanced. At no time parties intended to sell or transfer ownership of the properties under the documents executed. On or about 22-8-1969 Hasan Bin Mubarak, husband of the defendant advanced a loan of Rs. 2,000.00 and Rs. 3,000.00 and obtained sale deeds executed by the plaintiff's husband in favour of the brother of Hasan Bin Mubarak for the plot of land at Somajiguda with the specific understanding of reconveyance of said plot on repayment of loan of Rs. 5,000.00. Similarly, on the same day i.e., 29-8-1969 he advanced a further sum of Rs. 2,000.00 on a pronote and also a sum of Rs. 3,000.00 and got sale deed executed in favour of Bashir Bin Mubarak in respect of plot of land at Kaladera with specific understanding of reconveyance on repayment of the said loan. The aggregate loan advanced was Rs. 10,000.00 through different persons and sale deeds were executed as security for the loan. On 20/08/1969 a sum of Rs. 8,000.00 was advanced by Hasan Bin Mubarak, husband of the defendant and title deeds of house No. 22-8-389-1 and 2 of Purani haveli were taken. On 20-9-69 a further sum of Rs. 12,000.00 was advanced and a sale deed of the house was obtained. Accordingly an agreement of reconveyance of the said house was executed on the same day i.e. 22-9-69. Possession of the house was not conveyed. There was no mutation effected in the revenue records. However, a rental deed was executed for Rs. 375.00 per month representing interest on the amount so advanced. On 24-9-69 a further sum of Rs. 20,000.00 was advanced by Hasan Bin Mubarak through the defendant. A pronote was executed on the same day. Rs. 15,000.00 were advanced on 7-11-69 and another pronote was obtained on the same day. The reconveyance dated 22-9-69 was substituted by a fresh reconveyance deed on 7-11-69. Rent of Rs. 375.00 was enhanced to Rs. 1100.00 and a fresh rental agreement was executed on 20/02/1971. The plaintiff continued to be in possession of the property. He let out the same to the Government. The defendant's husband Hasan Bin Mubarak was collecting huge amounts every month. He got executed pronotes in favour of Abdul Rahim Bin Mubarak representing the earlier loan of Rs. 55,000.00 plus interest. It was further stipulated that Rs. 10,000.00 were to be paid as per agreement dated 5-1-70. He retained the original agreement in his custody. The said document was signed by Abdul Rahim Bin Mubarak and Hasan Bin Mubarak the husband of the defendant. The plots taken as security had been sold for a paltry sum to their relatives and friends by the defendant and her husband. The defendant had filed O.S. No. 301 of 1974 for arrears of rent of Rs. 37,820.00. O.S. 689 of 1972 was filed by Abdul Rahim Bin Mubarak against Mirza Mohiuddin Baig, the husband of the plaintiff on the basis of pronote for Rs. 60,000.00. Rs. 80,000.00 had already been realised by way of cash and rent by the defendant. The plaintiff was ready and willing to pay the amount if any still unpaid.

(2.) The defendant filed her written statement denying the allegations. Her case was that, she had purchased the suit property for a valuable consideration through a registered sale deed dated 22-9-69 and ever since the defendant was the owner of the property. Husband of the defendant was not a money lender. The husband of the defendant had nothing to do with the transaction of sale. The transaction of sale was real one and the sale was in favour of the defendant by the plaintiff for a consideration of Rs. 20,000.00. The plaintiff had received Rs. 8,000.00 on 20-9-69 and the balance consideration of Rs. 12,000.00 was received at the time of the execution of the registered sale deed on 22-9-69 before the Registrar. Plaintiff delivered all the documents pertaining to the suit property along with the non-encumbrance certificate on the date of sale. After the sale the plaintiff remained in possession of the suit house as a tenant and executed a rental deed in favour of the defendant. The agreement of reconveyance relied upon by the plaintiff was false and fabricated document. There was no need of reconveyance of the suit house and the plaintiff was not entitled to file the suit. It is further stated in the written statement that the plaintiff cannot claim the relief of specific performance of reconveyance deed until she offered to pay the alleged amount of Rs. 12,000/- in the Court. Suit was not properly valued and the Court-fee was not paid correctly. The plaintiff had not complied with any of the terms of reconveyance deed dated 7-11-69. She had also failed to pay Rs. 55,000.00 as alleged on or before 22-9-72. The plaintiff even if the agreement was proved ought to have claimed the reconveyance within three years from the period of the claim. The plaintiff's suit was barred by law.

(3.) On the pleadings of the parties, following issues were framed by the trial Court;