KUPPA KRISHNA HEGDE Vs. MHASTI GOLI NAIK

JUDGEMENT

(1.) The question involved in this second appeal is whether the transaction embodied in Ex. 14 is a mortgage or a sale with a condition of re-purchase.

(2.) On April 13, 1910, the original owner of the land Narsing Hegde sold it for Rs. 500 to one Vasudev Ram Bhat by Ex. 14. In the sale deed there was a clause which enabled the vendor and his heirs to have the land reconvened within twenty years on payment of Rs, 500. On the same day the vendee leased the lands to the vendor by mulgeni or permanent lease, Ex, 37, the rent fixed being ten mangis of rice and the assessment Rs. 14 being payable by the vendor. On August 14, 1913, Vasudev sold the property to one Manjaya Naik under whom the defendants claim, In May 1914, the vendor Narsing died, and the present suit is brought by his heirs under Section 15D of the Dekkhan Agriculturists Relief Act to take accounts of the mortgage on the allegation that the transaction evidenced by Exb. 14 was a mortgage by conditional sale.

(3.) The learned Subordinate Judge on consideration of the terms of the document and the surrounding circumstances came to the conclusion that the transaction evidenced by Exh. 14 was a sale deed with a condition of repurchase and not a mortgage by conditional sale, and dismissed the plaintiffs suit. In arriving at that conclusion the learned Subordinate Judge principally relied on the facts that there was no relation of creditor and debtor between the parties, no stipulation or provision in the deed for payment of interest, the price paid being adequate according to evidence, the rent reserved by the permanent lease being fair, the existence of mulgeni lease rather than a twenty years lease and the condition of repurchase being restricted to the vendor, his wife and male issue. He also took into consideration the language of the deed along with the surrounding circumstances, and held that the transaction was a sale with an agreement of repurchase and not a mortgage which could be redeemed by the plaintiffs.