GUDIA SINNA RAO Vs. LADE SANTARAM

JUDGEMENT

(1.) These two Second Appeals are being disposed of by this common judgment as the parties and the facts are the same. The facts giving rise to both the Second Appeals are as follows : Admittedly, the disputed property belonged to Kona Venkatappa Rao and his son. The appellant in both the appeals claims that the property was sold to him for 3,000/ - by the admitted owners by a registered document dated 3 -7 -1974. Though there was a condition that the original owners could get back the property by paying back Rs. 3,000/ - within five years, the same having not been done, he has got absolute right over the property. It is further claimed by him that the subsequent purchase by respondent No. 1 from the other respondents by registered document dated 24 -4 -1977 is not binding on him. On the basis of the aforesaid claim, he filed Title Suit No. 8 of 1933 which was dismissed. Thereafter Tittle Appeal No. 22 of 1984 was also dismissed. Second Appeal No. 10 of 1986 is directed against the aforesaid judgment. Second Appeal No. 4 of 1986 is directed against the judgment and decree passed in Title Suit No. 19 of 1982 and confirmed in Title Appeal No. 21 of 1984. The said suit had been filed by respondent No. 1 for redemption of mortgage and mesne profits. It is the case of respondent No. 1 that the document dated 3 -7 -1974 was. in fact, a mortgage with conditional sale and not a sale with condition of repurchase. It is further claimed that he purchased the right of redemption from the other respondents (original owners) on 24 -4 -1977 and thereafter filed M. J. C. No. 14 of 1979 purporting to be a proceeding under Section 83 of the Transfer of Property Act depositing Rs. 3,000/ - for refund of the same to the present appellant. Since the present appellant refused to accept the said money, the present appellant should be directed to convey the property and deliver possession along with mesne profits. In the said suit, the trial Court passed a preliminary decree in favour of the present respondent No. 1 with further direction for payment of mesne profits at the rate of Rs. 5. 50 paise per day from July, 1979. The present appellant had filed Title Appeal No. 21 of 1984 against the said decree. Both the Title Appeals were dismissed by a common judgment and hence these Second Appeals.

(2.) BOTH the Courts below negatived the contention of the present appellant that the document dated 3 -7 -1974 was a sale with condition of re -purchase and they found that, in fact, it was only a mortgage with conditional sale and as such the original mortgagor or his successor -in - interest (the present respondent No. 1) had right of redemption.

(3.) IT is contended on behalf of the appellant that the aforesaid transaction was a sale transaction and the only right reserved by the vendor was right to re -purchase the same on repayment of Rs, 3,000/ -. However, such contention of the appellant is not tenable in view of the recital in the document itself that in the event of failure of the executants to repay Rs. 3, 000/ - by the stipulated date, a fresh document (sale deed) is to be executed for Rs. 3, 000/ - or for 'a consideration to be decided by four gentlemen. Such recital is more consistent with the view that, in fact, the transaction was a mortgage with conditional sale rather than a sale with condition of re -purchase. There was no transfer of ownership on the date of execution, but only a right to remain in possession of the property had been given with further condition that in case the original executants failed to pay the money by a stipulated date, another sale deed is to be executed. Even the appellant while being examined as PW 1 admitted in his evidence that the document was indeed a mortgage deed and not a sale deed. Though it was recited that the present appellant was to pay tax et cetera. that by itself cannot make the transaction a sale. Even a person in possession as a mortgage or otherwise may be required to pay tax end other dues et cetera. Recitals of the document coupled with the admission of the appellant himself make it clear that the transaction was only a mortgage with conditional sale and as such the executants had the right of redemption. It is not disputed that the original executants sold the property to respondent No. 1 (plaintiff in Title Suit No. 19 of 1982) on 24 -4 -1977 and as such transferred the right of redemption to the latter. Respondent No. 1 had every right to seek for redemption of the property by tendering the money which he had by filing MJC No. 14 of 1979 deposited on 28 -6 -1979. As such, in view of the aforesaid findings, the Courts below rightly dismissed Title Suit No. 8 of 1983 filed by the present appellant.