SANNAPPA NAGAMMA Vs. SAPATLA PAKKIRAPPA

JUDGEMENT

(1.) Unsuccessful plaintiff in both the Courts below is the appellant herein. She filed the suit for preliminary decree in her favour directing the defendant to execute a redemption deed in terms of Ex.B.1 document. According to the plaintiff, she borrowed Rs. 5,000/- from the defendant and executed Ex.B.1 document dated 28.03.1983 styling the same as 'Avadhi Vikraya Patram' for Rs. 5,000/- conveying the suit property of Ac. 1.14 cents in S. No. 253/5 of Mamillapalli village of Dharmavaram Sub-Registration District in Anantapur District, with a condition that in case she repays Rs. 5,000/-to the defendant within 3 years thereof, then the property has to be reconveyed to her by the defendant. It is her further case that even before the period of 3 years, she was demanding the defendant to receive Rs. 5,000/- from her and to reconvey the property to her. On the date of Ex.B.1 document, possession of the property was delivered by the plaintiff to the defendant. Before filing the suit, the plaintiff got issued Ex.A.1 notice to the defendant on 27.03.1986 demanding reconveyance after receiving Rs. 5,000/- from her. Subsequently the plaintiff deposited Rs. 5,000/- on 27.05.1986 in State Bank of India in the name of the Advocate, as per Ex.A.5 letter of the bank. On 14.07.1986, the plaintiff filed the suit for the above relief in the trial Court. The defendant resisted the suit on the ground that Ex.B.1 is not a mortgage deed by way of conditional sale and that it is an outright sale with a condition to reconvey the property in case the consideration of Rs. 5,000/- was repaid within 3 years of that date. It is the defendant's further contention that since the plaintiff did not repay Rs. 5,000/- within the stipulated time in Ex.B.1, she is not entitled for reconveyance of the property in her favour. After trial, the trial Court negatived the plaintiff's claim; and on appeal by the plaintiff, the lower appellate Court dismissed the appeal. Therefore, the plaintiff approached this Court with this second appeal. The then learned Judge of this Court admitted this second appeal in view of questions of law raised in ground Nos. 2 to 6 of the memorandum of the second appeal. The said grounds are as follows:

(2.) Main ground on which result in the second appeal depends is interpretation of nature of document between the parties. As pointed out earlier, Ex.B.1, which is the suit document, is styled as 'Avadhi Vikraya Patram'. Both the Courts below came to the conclusion that it is a time bound sale deed and that it is not a conditional mortgage deed. Charles Philip Brown in his 'Telugu-English Dictionary' gave meaning of 'Avadhi Kraya Patram' as "a mortgage bond with the penalty of forfeiting the mortgage after a limited time". Though description of the document in Telugu predominantly is a time bound sale deed, it is not as such. It is only a mortgage deed primarily. Therefore, interpretation of Ex.B.1 by the Courts below as a sale deed with a term for reconveyance in case the condition specified therein is fulfilled within the stipulated time, is an incorrect interpretation of the document. It is well settled principle of law that once a transaction is a mortgage, always it continues to be a mortgage. In Ex.B.1, time specified upto 27.03.1986 is a period within which the plaintiff was given liberty to pay back Rs. 5,000/- to the defendant and to obtain reconveyance of the property in her favour. It is not as if subsequent to the said date, the plaintiff loses her right to redeem the said mortgage. Under , a mortgagor is entitled to file suit for redemption or recovery of immovable property mortgaged within 30 years from the date when the right to redeem or to recover possession accrues. The said period of limitation of 30 years cannot be curtailed by an agreement by limiting the same to 3 years in Ex.B.1 document.

(3.) In the case on hand, the plaintiff gave Ex.A.1 registered notice to the defendant on 27.03.1986 itself expressing her willingness to pay Rs. 5,000/- to the defendant and seeking reconveyance of the property to her as stipulated in Ex.B.1 document. It is her case therein that she has been demanding the defendant even prior to it for receiving the amount of Rs. 5,000/- and for reconveying the property to her. Of course, it was denied by the defendant in Ex.A.3 reply notice. In any event, on 27.05.1986 itself the plaintiff deposited Rs. 5,000/- in State Bank of India in the name of the defendant's advocate. Though the said deposit is not in the name of the defendant, the plaintiff made the said deposit in bank to show her bona fides of her intention to obtain reconveyance deed as stipulated in Ex.B.1 and as demanded in Ex.A.1 notice. In view of Article 61(a) of Schedule to the Limitation Act, 1963, the plaintiff is having right to redeem the mortgage covered by Ex.B.1 document within 30 years of the same. Therefore, the plaintiff is entitled to file the present suit for redemption and to demand execution of redemption deed or reconveyance deed by the defendant in her favour and consequently to recover possession of the suit property from the defendant. Both the Courts below failed to interpret Ex.B.1 document in the right direction and came to erroneous conclusion on the nature of Ex.B.1; and it made both the Courts to non-suit the plaintiff erroneously. The substantial questions of law are answered accordingly. In the result, the second appeal is allowed setting aside the judgments and decrees passed by both the Courts below and granting decree in favour of the plaintiff/appellant and against the defendant/respondent as prayed for in the suit. No costs.