KUNDURTHI RANGANADHAM Vs. PULI RAGAIAH

JUDGEMENT

(1.) This second appeal has been filed by the appellants who seek to assail the judgment and decree dated 21.8.1997 in A.S.No.37 of 1987 on the file of Subordinate Judge, Kavali. For the sake of brevity the parties herein after be referred to as they are arrayed in the trial Court.

(2.) The brief facts that are necessary for the disposal of the present appeal may be delineated as follows:- The first plaintiff and his late father Sayibu are the mortgagers of the plaint schedule land and the first defendant is the mortgagee. First defendant being mortgagee in possession as per the hypothecation arrangement and is appropriating the profits towards interest. The plaint schedule land belongs to the family of the first plaintiff and his late father Kundurthi Sayibu. The suit land is cultivable wet land. Plaintiffs 2 to 5 are the sisters of the first plaintiff. In August, 1966, 5th plaintiff had to be married. As the lands belonging to the family of the plaintiffs had to be repaired and improved. For this purpose first plaintiff and his father in need of money. They approached the first defendant for loan of Rs.2,000/-. The first defendant agreed to lend the money to them provided a mortgage was executed in his favour hypothecating the plaint schedule land which was at that time costing about Rs.1,500/- per acre. First plaintiff and his late father agreed to hypothecate the same for the loan of Rs.2,000/- as demanded by the first defendant, since they were in need of money. On 12.8.1966 out of the amount of Rs.2,000/- payable by first defendant, first plaintiff and his father spent Rs.162/- for stamps for the mortgage deed and Rs.24.50 ps. for registration fee and Rs.13.50 ps for the expenses and paid Rs.1,800/- to first plaintiff and his father. First defendant got executed by first plaintiff and his father an ostensible sale deed of Rs.2,000/- in the name of first defendant on that date with a condition that if Rs.2,000/- alone was repaid to him within 3 years by 12.8.1969 first defendant should execute and register sale deed in favour of first plaintiff and his father at their expenses and if they fail to payback Rs.2,000/- to first defendant by 12-8-1969 first defendant should enjoy the property with absolute rights from that date. The land was put in defendant Nos.1 possession and the produce to be enjoyed by first defendant in lieu of interest at 12% on the loan. Thus, the said document is a mortgage by conditional sale. First defendant has been enjoying the produce from the land coming to not less than 3 putties of paddy every year which is more than the interest at 12%. Patta for the land continued to be in the name of first plaintiffs father. Subsequently, within a short time after the execution of the said document, first plaintiff renounced worldly affairs and began to live in an Ashram at Bogole. First plaintiffs father could not redeem the mortgage in favour of first defendant. First plaintiffs father died about one year back. His wife predeceased him. First plaintiff and his five sisters plaintiffs 2 to 5 and defendant No.2 succeeded to the share of their father in the family properties including the plaint schedule land. The first plaintiff has married and is managing the family. He had demanded the first defendant to receive the amount due to him and redeem the mortgage and deliver back the land. But the first defendant has been postponing to do so on some pretext or the other.

(3.) Then the first plaintiff got issued a legal notice on 26.11.1977 demanding redemption and other reliefs. First defendant received the notice and got issued a reply notice through his lawyer with false and untenable allegations. The suit land is fetching good income worth about Rs.1,500/- per acre as per market rate. First plaintiff or his father never bargained to sell the land out right. It was only a mortgage by conditional sale. The first defendant never spent Rs.1,000/- for improving the land. The first defendant never hypothecated the land to the Land Mortgage Bank, Kavali for Rs.4,990/-. Any such hypothecation is invlaid and cannot effect the rights of the mortgagers. First defendant was aware of the loan liability upon the land which was incurred by first plaintiffs father before the execution of the document dated 12.8.1966. The plaintiff contended that the time for redemption has not expired and they are entitled to redeem the mortgage. First defendant is also liable to account to the mortgagers for the profits enjoyed by him in excess of the interest amount due to him at 5% only as plaintiff and 2nd defendant are agriculturists. The C schedule property is Ac.2-20 cents in Survey No.7/2 covered by patta No.12 and an extent of Ac.01-15 cents in Survey No.7/1 covered by patta No.113 and the total extent is Ac. 03-35 cents.