This regular second appeal challenged the dismissal of a suit claiming that a sale deed executed for nominal consideration was actually a mortgage. The High Court held the transaction was an absolute sale due to lack of mortgage conditions in the deed and dismissed the appeal.
Appeal dismissed; lower court's finding that the transaction was an absolute sale upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA 1806/2010
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24th DAY OF SEPTEMBER, 2013
BEFORE
THE HON’BLE MR.JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.1806/2010
BETWEEN
M A ASWATH S/O M.B. ANDANI GOWDA AGED ABOUT 46 YEARS OCC: PRIVATE EMPLOYEE RESIDING AT OLD M.C. ROAD SHANKARPURA, MANDYA CITY MANDYA.
... APPELLANT
(By Sri.: N S BHAT, ADV. )
AND
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... RESPONDENTS
(By Sri.: D R SUNDARESHA, ADV. FOR R2 & R3)
RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.3.2010 PASSED IN R.A.NO.28/2008 ON THE FILE OF THE ADDL. DISTRICT JUDGE, MANDYA, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED: 30.10.2007 PASSED IN O.S.NO.225/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & CJM, MANDYA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful plaintiff has filed this appeal challenging dismissal of his suit for declaration and redemption of mortgage and also his appeal by the first appellate Court.
The suit properties are described in schedule
‘A’ and ‘B’ to the plaint with its measurement and
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boundaries. The appellant/plaintiff was the owner of the suit properties and acquired title in pursuance of a partition in the year 1983. As he was in difficulties and had raised loan from different persons, he was intended to mortgage the suit properties. But in view of the Debt Relief Act which was then in force submits that he executed a nominal sale deed dated 2.6.1989 for a sum of Rs.55,000/-. He contended that the suit properties were worth more than Rs.3,00,000/- as on the date of transaction and question of selling the suit properties for a sum of Rs.55,000/- is only in terms of an understanding between them that it is a mortgage transaction. He was intending to repay the said sum and get back the properties, but as the defendants were not agreeable to receive the said sum and redeem the property, he instituted the suit for declaration that the sale deed dated 2.6.1989 is a nominal sale deed and for possession of the suit properties.
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appeal came to be dismissed by the first appellate Court on 15.3.2010. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed.
transaction, in view of the Debt Relief Act and stated to have executed a nominal sale deed for a sum of Rs.55,000/- which is said to be the mortgage money. He also contends that the transaction in question was nominal and it was not acted upon by the parties. He submits that these circumstances
were not considered by the Courts below and
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therefore they committed an error in dismissing the suit instituted.
at Ex.P1 and the learned counsel for the appellant has made available the copy of the said document. Perusal of the sale deed at Ex.P6 reveals that it
is a out and out sale. In the document, the plaintiff states that the properties therein fell to his share in a partition dated 26.1.1983 and he is the absolute owner of the suit properties. He has also stated that the purchaser would become the absolute owner and enjoy the suit properties all along in his life time, even thereafter by his successors. The price of the suit properties is mentioned as Rs.55,000/-. Nowhere in the document there is any reference or any recital to the effect
that this document is a mortgage transaction. He has conveyed an absolute title to the suit properties under this document to the purchaser, the defendant herein. Reading of this document does
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not reveal any indication or recital to draw an inference that this document is a mortgage transaction. Though there is a mention of the fact that there are loans, which made him to sell the properties that itself will not be sufficient to indicate that this is a mortgage deed. It is only in difficulties a party sells his properties and reciting such difficulties in the document is not an indication of a transaction being a mortgage transaction. Though it is stated by the plaintiff in the evidence that the properties were wroth Rs.3,00,000/- as on the date of the transaction, except his oral evidence, there is no material placed on record. That apart, it may be that the name of the defendant was not entered in the records in pursuance of the sale transaction, but it is relevant to note that under the provisions of Sections 128 and 130 of the Land Revenue Act whenever a registered document is executed, it is the duty of the registering authorities to intimate
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the revenue authorities to make entries in the record of rights. Mere fact that the name is not entered in the record of rights in pursuance of the transaction itself is not sufficient to draw an inference that this transaction is neither acted upon nor that it is a mortgage transaction. Further more, perusal of the pleadings would reveal that there is no mention of the type of mortgage, i.e., whether it is a simple or equitable mortgage or not. Perusal of the provisions of Section 58(c) of Transfer of Property Act would reveal requirement of mortgage by conditional sale. Proviso to Section 58(c) reads thus:
“Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.”
would indicate that in case if a transaction is to be considered as a mortgage by a conditional sale,
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there has to be a condition embodied in the document itself. No such condition is available in Ex.P6. It is because of these reasons that the Courts below have come to the conclusion that the suit transaction is an absolute sale and not a mortgage. In the absence of any material in the documents to indicate that the transaction is a mortgage transaction, the Courts below after appreciating the oral evidence led by the parties have come to a finding that the transaction is a sale deed and is not a mortgage by a conditional sale. In these circumstances, I do not find any substantial question of law for consideration.
In the result, the appeal fails and it is according dismissed.
Sd/JUDGE
*AP/-
3 issues framed by the court
Whether the suit transaction is a mortgage by conditional sale or an absolute sale in the absence of a condition in the sale deed.
Whether the lower courts erred in dismissing the suit for declaration that the sale deed was a nominal mortgage deed.
Whether there is a substantial question of law for consideration regarding the interpretation of Section 58(c) of the Transfer of Property Act.
2 provisions across 2 enactments
M A ASWATH
P. BABULAL
M.G. SRIKANTU
M.G. CHANDRASHEKAR
A.S.Pachhapure
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
