MANDAS Vs. MANABAI

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff. The facts as found by both the Courts below are that the defendant executed a sale deed dated 12th July 1960 for a consideration of Rs. 400/-in respect of certain plots of land. The plaintiff filed the present suit in 1964 for possession over the property from the defendant on the ground that be had purchased the property from the defendant by means of a sale deed. The defendant in the written statement pleaded that the transaction between the parties was not that of a sale at all but the defendant had borrowed Rs. 400 /- from the plaintiff at Rs. 3 and 2 annas per cent per annum interest and in order to secure the repayment of this amount this document was executed. Paragraph 2 (c) of the written statement is as follows :

(2.) THE Court below has relied upon a Single Judge decision of this court in which a similar document was treated as ineffective in law. On a perusal it appears that there are two more Single Judge decisions of this Court in which a similar view seems to have been taken. I am, therefore, referring this matter for consideration by a Division Bench that in these circumstances the document cannot be treated as a sham transaction. A valid title passes to the purchaser. The only relief that can be given in such cases is that decree be passed in favour of the plaintiff for possession of the property according to the document but the defendant be directed to pay up the amount within the specified time. In case the amount is paid in time, the decree would be deemed discharged. Such a decree would meet the ends of justice, but to hold that the sale deed although executed to secure the amount is a sham transaction would be doing injustice to the plaintiff.

(3.) I, therefore, direct that this case be listed before a Division Bench for disposal. [the case was then heard by Bhargava and A. P. Sen JJ. who pronounced the following judgment. ] bhargava J.-This second appeal by the plaintiff is before us for disposal under the order dated 5-10-1970 made by the learned Chief Justice.