MAHANTHAYA Vs. NANDIAPPA HEDGE

JUDGEMENT

(1.) The only point in this second appeal is whether Ex. 1 is a mortgage or sale. Exhibit I was executed on the 14 June 1860, by one Mahanthamma, wife of Basavayya in favour of Govinda Hegde. From the tenor of the document, it appears that it was intended to be a sale. It is called "Kraya Kanditha Mokthiari" and from the recitals therein, it appears that it was intended to operate as a sale. Govinda Hegde filed a suit in the Barkur Taluk Munsif's Court in 1860 for possession of the property on the strength of Ex. 1. The Munsif dismissed the plaintiff's suit. On appeal, the Principal Sadar Amin held that the plaintiff was entitled to possession and that he should pay certain amounts mentioned in the document and that the warg of the properties should not be transferred without the consent of the son of defendant 1 in that suit. The contention of Mr. Sitarama Rao is that Ex. 1 is only a nominal transaction and that it was executed in order to protect the property from a previous mortgagee who was giving trouble at the time this document was executed. There is nothing in the document to show that it was a nominal transaction. If it was a nominal transaction no doubt the plaintiff would be entitled to get possession at any time he likes because the possession of the benamidar would only be the possession of the real owner.

(2.) If that contention is not to be upheld, Mr. Sitarama Rao contends that Ex. 1 should be treated as a mortgage. As I have already observed, from the tenor of the document, it cannot be said to be a mortgage. Either it is an out and out sale or it is only a benami sale for the benefit of defendant 1. The decree of the Principal Sadar Amin makes it clear that Govinda Hegde was to be in possession of the property and that the warg of the properties should be transferred only with the consent of 1 defendant's son That being so, it cannot be said that under that decree, Ex. 1 became a mortgage. There is no time fixed for redemption, nor is any amount mentioned which should be paid when the mortgagor sues for redemption. What the Principal Sadar Amin did was to make Govinda Hegde pay the amount of the mortgage on the property and other amounts which he had undertaken to pay. It is not, therefore, open to the present plaintiffs who are the son's son of defendant 1 to the suit of 1860, the executant of Ex. 1, to set up title to the property on the ground that Ex. 1 was a nominal sale not intended to convey any title to the vendee or that it is a mortgage which they are entitled to redeem.

(3.) In this view, the judgment of the Subordinate Judge is correct. The second appeal fails and is dismissed with costs.