RAMNIWAS Vs. POKARRAM

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit for the redemption of mortgage and in the alternative for a decree for specific performance.

(2.) THE facts giving rise to this appeal may be stated within a narrow compass. THE property in question which consists of a house, two lime kilns and an open plot of land measuring 14,300 sq. yds. is situated in village Chandawal, Tehsil Sojat. This property originally belonged to respondent No. 3 Gulab Singh, who according to the plaintiff Ramniwas (appellant) mortgaged it by conditional sale by the mortgage deed dated 4-1-1960 for a sum of Rs. 4000/- with the defendant-respondent Nos. 1 and 2 Pokar Ram and Bhanwar Lal. One of the conditions incorporated in this alleged mortgage deed is that the mortgagor i. e. Gulabsingh will have a right to have the property in question resold to him on payment of Rs. 4000/- and interest thereon, within one year from the date of the execution of the deed. It was further stated that in case Gulabsingh failed to get the reconveyance in his favour as mentioned above the sale of the property in favour of the defendants Nos. 1 and 2 would be valid. Even after the execution of this document Gulabsingh continued to remain in possession of the property in question and executed a rent note for the same in favour of the defendants Nos. 1 and 2 for Rs. 40/- per month. It appears that subsequently defendants Nos. 1 and 2 filed a suit for arrears of rent and ejectment against Gulabsingh, and got possession of the property in question in execution of the decree, they had obtained in their favour on 19-7-1963. But before this happened Gulabsingh had sold away the property in question by a registered sale deed dated 3rd January, 1961 to the plaintiff-appellant Ramniwas for Rs. 12000/- mentioning therein that the property in question had been mortgaged with Pokarram and Bhanwarlal. On 10-9-1963 Ramniwas filed the suit against Pokarram, his son Bhanwarlal and Gulabsingh alleging that the document dated 4-1-1960 executed by Gulab Singh in favour of Pokarram and Bhanwarlal though ostensibly the sale was in fact a mortgage by a conditional sale and since he had purchased the property in question with full rights from Gulabsingh, he was entitled to redeem the mortgage on payment of Rs. 4000/- as principal and Rs. 240/-as interest @ 6% per annum, total Rs. 4240/- He, therefore, claimed a decree for redemption of mortgage and in the alternative prayed that, if for any reason, a decree for redemption was not granted in his favour the suit may be decreed for specific performance of the agreement to reconvey the property as provided in the deed itself. Pokarram and Bhanwarlal resisted the plaintiff's suit and pleaded that the deed in question was a sale out and out and not a mortgage by conditional sale. It was also pleaded that the suit for specific performance in the alternative, was not maintainable. Gulabsingh filed a separate written statement and supported Pokar Ram and Bhanwarlal in their contention that the deed executed by him in favour of Pokarram was a sale out and out and thus he also prayed for dismissal of the plaintiff's suit. THE learned Civil Judge, Sojat framed the following two issues - (1) Whether the deed dated 4-1-1960 executed by defendant No, 3 in favour of defendants Nos. 1 and 2 is a mortgage by conditional sale and therefore the plaintiff is entitled to redeem the property in question from defendants Nos. 1 and 2? (2) Whether the plaintiff is entitled to get the property in question sold to him by specific performance on the basis of the deed dated 4-1-1960 executed by defendant No. 3, in favour of defendants Nos. 1 and 2. (3) Relief.

(3.) IN Sita Ram vs. Basheshwar Dayal (6) relied upon by the learned counsel for the appellant it was held that in view of the fact that the price paid was wholly inadequate and that the possession remained with the transferor, it was clear that the transaction in question was not one of complete sale but what was intended was to create a mortgage by way of conditional sale.