RAJJULAL Vs. JALALUDDIN

JUDGEMENT

(1.) THIS is a plaintiffs' appeal against the judgment and decree of the first City Civil Court Judge affirming the judgment of the trial Court which had dismissed the suit. The point for consideration in this appeal is whether the sale deed of 16th Dai 1349F executed by appellant 1 and the agreement to recovery executed on the same day by Zenab Begum taken together constitute a mortgage by conditional sale or an out and out sale. The Courts below have held that as the sale deed is registered it can only be avoided by Anr. registered deed, and the agreement in question admittedly not being registered is inadmissible in evidence. We find the lower Courts have missed the real point in issue. The appellants treating the two documents as one transaction allege it to be mortgage. If this allegation is accepted, then having regard to the provisions of Section 59, Hyderabad T.P. Act (Section 59, Indian T.P. Act), and Section 10(1)(b), Hyderabad Registration Act (Section 17 Indian Registration Act), the alleged agreement would require registration without which it will not be admissible in evidence. In Bhagchand v. Rahim, 1352 Nazair AP 221 it has been laid down that,

(2.) APART from the allegations in the plaint, if we treat the agreement as one to recovery, then even in that case the present suit (which is for redemption) would be dismissed, for in that case plaintiffs' suit should be for specific performance. The learned Vakil for the appellants relying on certain rulings of the Indian High Courts, prays for an amendment. In Baba v. Gyanba and Ors., 24 Deccan L.R. 117 it has been laid down by the Full Bench of this Court that no amendment should be granted if its effect is to alter the nature of the suit. Section 58, Hyderabad Civil P.C., (Order 6, Rule 17, Indian Civil P.C.) also enacts that no amendment will be allowed which has the effect of altering the nature of the suit. There is no such limitation in Order 6, Rule 17, Civil P.C. In view of this, we are not inclined to allow the appellants to amend the plaint as the amendment prayed for would alter the nature of the suit. Appeal dismissed accordingly. We do not wish to pass any order regarding costs.