SUBHADRAMANI DHAL Vs. JAGANATH PATRA

JUDGEMENT

(1.) Defendants 7, 8 and 11 are the appellants. This appeal is from the confirming decision of the Sub-Judge, Balasore and arises out of a suit for redemption of a mortgage by conditional sale.

(2.) One Ananta Patra was admittedly the owner of the suit properties of A1.27 decimals. He executed a mortgage by conditional sale in respect thereof on 5-9-1930 in favour of one Baidyanath. This mortgage deed is Ex. 1. Ananta Patra ostensibly sold the mortgaged property for Rs. 100 on condition that if the mortgage amount was repaid between Magh to Chaitra of any year before 1342 V. S. the mortgagee will reconvey the properties. 1342 V.S. corresponds to 1935. Thus, the stipulation in Ex. 1 was that if repayment was not made between Magh to Chaitra of 1935 the sale shall become absolute thereafter. Mortgage dues were not repaid within the stipulated period. About 20 years thereafter, the mortgagee sold 39 decimals out of it to Kishore Mohan for a valuable consideration of Rs. 200 under a registered sale deed dated 6-1-54 (Ex. A/1). He also sold the balance 88 decimals to the father of defendants 9 and 10. We are not concerned in this appeal with this second sale regarding 88 decimals. Kishore Mohan, who is the father of defendants 5 and 6, in his turn, sold the same 39 decimals for a valuable consideration of Rs. 99 to Pratima Devi by a registered sale deed dated 30-6-58 (Ex. B/1) and delivered possession. Since then Pratima Devi became owner in possession of 39 decimals. Sometime thereafter she died and was succeeded by her husband, defendant No. 11 and defendants 7 and 8 who are her two minor daughters through defendant No. 11. The plaintiff's case is that they tendered mortgage money to the mortgagee before he started selling but he refused to accept the same. At any rate the mortgage was extinguished upon lapse of 15 years from the date of mortgage by reason of the statutory provisions contained in Section 17 of the Orissa Money-Lenders Act and the plaintiffs are entitled to recover possession.

(3.) The case of the defendants is that the transaction made by Ex. 1 is not a mortgage by conditional sale but is an out and out sale. Baidyanath possessed the land in his own right and conveyed his absolute title to 39 decimals out of it to Kishori Mohan on 6-1-54 and the balance 88 decimals to defendants 9 and 10. Kishore Mohan thus acquired absolute title and possession. He, in his turn, passed an absolute title to 39 decimals to Pratima Devi on 30-6-58 by a registered sale deed for valuable consideration. The plea of limitation was taken by some of the defendants though that is not to be expressly found in the written statements of the appellants. After purchase, the defendants mutated their names in the landlord's sheresta and possessed the suit land in their own absolute right. They had no knowledge of the prior mortgage at the time of their purchase.