Allowed

Sri T S Rajashekar v. Sri N Venkatasubba Shetty

Karnataka HC21 Jun 2023RSA/1361/2013

Case brief

AI extract

What is this about?

The High Court allowed a second appeal against the First Appellate Court decreeing a suit for redemption of a mortgage. The High Court held the document was a sale with a re-purchase option, not a mortgage, affirming the trial court's dismissal.

What did the court decide?

The judgment and decree of the First Appellate Court setting aside the trial court's dismissal order are set aside; the trial court's dismissal order is affirmed.

Sri T S Rajashekar Vs Sri N Venkatasubba Shetty — Partition | Karnataka HC (2023)

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NC: 2023:KHC:21433 RSA No. 1361 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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REGULAR SECOND APPEAL NO. 1361 OF 2013 (RES)

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BETWEEN:

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SRI T S RAJASHEKAR

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SINCE DECEASED BY LRS.

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(a) SMT N CHANDRAKALA

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AGED ABOUT 50 YEARS W/O.LATE.T.S. RAJASHEKAR

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(b) KUM RASHMI AGED ABOUT 20 YEARS D/O.LATE T.S.RAJSHEKAR.

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BOTH ARE RESIDING AT D.NO.11, 3^RD MAIN, YADAVAGIRI MYSORE – 570 020.

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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SRI T S SRIKANTAPRASAD AGED ABOUT 60 YEARS HOCKEY COACH. CONNUR ROAD, OOTY TAMIL NADU STATE.

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SMT. T S GIRIJAMBA AGED ABOUT 62 YEARS W/O RAMESH RESIDING AT No.1358 KRISHNAMURTHYPURAM MYSORE – 570 001.

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NC: 2023:KHC:21433 RSA No. 1361 of 2013

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KUM. T S SUBBALAKSHMI AGED ABOUT 56 YEARS D/O.LATE T.N.SOMA SHETTY RESIDING AT D.NO.11 3^RD MAIN, YADAVAGIRI MYSORE - 570 020.

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…APPELLANTS

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(BY SRI SHANKARANARAYANA BHAT N, ADVOCATE)

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AND:

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SRI N VENKATASUBBA SHETTY DEAD BY LRS

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1(a) SMT. JAYALAKSHMI W/O LATE N.VENKATASUBBA SETTY AGED ABOUT 72 YEARS.

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1(b) SRI. V. RAJESH S/O LATE N. VENKATASUBBA SETTY AGED ABOUT 43 YEARS.

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BOTH ARE R/AT 21/95 KURUBA STREET, CHAMARAJANAGAR.

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1(c) SMT. V.PRATHIBHA D/O LATE N.VENKATASUBBA SETTY, W/O M.N.NARSIMHA, 38 YRS, A/AT 1421, 6^TH CROSS, THYAGARAJA ROAD, K.R.MOHALLA, MYSORE

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SRI RAMADAS AGED ABOUT 74 YEARS, S/O LATE D. NARAYANA SHETTY, RESIDING AT LID 109, 2^ND PHASE, IV GROUP, K.H.B., HOOTAGALLI, MYSORE-570018.

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SRI DEVENDRA AGED ABOUT 66 YEARS, S/O LATE D NARAYANA SHETTY, RESDING AT D.NO.260, SONA STREET, MYSORE – 570 001

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SRI SHARASCHANDRA AGED ABOUT 32 YEARS, S/O.LATE RANGASWAMY, RESIDING AT NO.14, 3^RD MAIN, JAIMARUTHINAGARA, NANDINI LAYOUT, BANGALORE-560096.

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SMT. C N GOWRAMMA AGED ABOUT 65 YEARS, D/O.LATE D. NARAYANA SHETTY, RESIDING AT BHUJANGESHWARA EXTENSION, CHAMARAJANAGARA-571313, CHAMARAJANAGRA TALUK & DISTRICT.

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SMT. C N NAGARATHNA AGED ABOUT 64 YEARS, D/O LATE D. NARAYANA SHETTY, RESIDING AT BHUJANGESHWARA EXTENSION, CHAMARAJANAGARA-571 313, CHAMARAJANAGRA TALUK & DISTRICT

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SMT. VIJAYALAKSHMI AGED ABOUT 60 YEARS, W/O.LATE RANGASWAMY, RESIDING AT NO.14, 3^RD MAIN, JAI MARUTHI NAGARA, NANDINI LAYOUT, BANGALORE-560 096.

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SMT. T S SHYAMALA AGED ABOUT 63 YEARS, W/O. RAMDAS RESIDG AT LIG-109, 2^ND PHASE, IV GROUP,

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NC: 2023:KHC:21433 RSA No. 1361 of 2013

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KHB COLONY, HOOTAGALLI, MYSORE-570018. SINCE DECEASED BY LR’S

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8(a) SRI. SUBHASH CHANDRA S/O LATE T.S. SHYAMALA AGED ABOUT 40 YEARS R/AT No.80, MIG 1^ST FLOOR GROUP – 1, K.H.B. COLONY HOOTAGALLI, NEAR BANKOF BARODA MYSURU – 570 018.

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8(b) SMT. CHETHANA D/O LATE T.S. SHYAMALA AGED ABOUT 44 YEARS R/AT “SRI. GANGANATHA NILAYA” No.96/B, M.I.G. -1, GROUP-1, KHB COLONY HOOTAGALLI, NEAR BANK OF BARODA MYSURU – 570 018.

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…RESPONDENTS

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(BY SRI. PADMANABHA V. MAHALE, SR. COUNSEL A/W SRI. V. RANGARAMU, ADVOCATE FOR R1(a-c), R2, R3, R4, R7, R8(a-Bb SRI. R.C. NAGARAJ, ADVOCATE FOR R5, R6)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 25.4.2013 PASSED IN R.A.NO.48/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & CJM, CHAMARAJANAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.3.2008 PASSED IN O.S.NO.86/2004 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., CHAMARAJANAGAR.

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed challenging the judgment

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and decree dated 25.04.2013 passed in R.A No.48/2008 by the Senior Civil Judge and C.J.M., at Chamarajanagar and praying to restore the judgment and decree dated 19.03.2008 passed in O.S No.86/2004 by the Principal Civil Judge (Jr.Dn.) and JMFC at Chamarajanagar.

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The parties are referred to as per their rankings

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before the trial Court. This appeal is filed by defendant Nos.2, 4, 5 and legal representatives of defendant No.1, respondent Nos.1 to 7 were plaintiff Nos. 1, 2, 3, 4, 5, 6, 7 and respondent No.8 was defendant No.3 before the trial Court. During the pendency of the appeal, the first respondent died and he is represented by his legal representatives.

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Brief facts of the case are that:

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The plaintiffs filed a suit in O.S No.86/2004 seeking redemption of mortgage of the suit schedule property with a direction to the defendants to receive the mortgage

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amount of Rs.20,000/- and to recover the property in favour of the plaintiffs. It is the case of the plaintiffs before the trial Court that the suit schedule properties originally belonged to Late D.Narayanashetty and Late C.N.Rangaswamy. They approached Sri. Parthasarathy and borrowed a sum of Rs.20,000/- for family necessities

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and for discharging loan borrowed from one Sri. Basavannadevaru for a sum of Rs.14,000/- and for marriage of Sri. Ramadas. It is stated that as a security for the said loan they mortgaged the suit schedule property with a condition to repurchase the same within 10 years. The said Sri. Parthasarathi was a bachelor and

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died intestate, leaving behind his mother Smt. Savithramma as sole legal heir. Smt. Savithramma also died leaving behind the defendants as legal heirs. It is stated that the plaintiffs approached the defendants and requested them to receive the money and redeem the mortgage, but the defendants refused to redeem the mortgage. He stated that the plaintiffs are still in the possession of the suit schedule property.

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The defendants filed the written statement

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denying the averments of the plaint. They contended that after demise of Sri. Parthasarathy and their mother Smt. Savithramma, they are in possession and enjoyment of the suit schedule property. The defendants have admitted the relationship of the parties and payment of the amount, but they have disputed the averments that suit schedule property was mortgaged. That according to defendants, the suit schedule property was sold in favour of Late Parthasarathy and as the plaintiffs did not opt to repurchase the same within the period of 10 years, the suit schedule property has become the absolute property of the defendants. The defendants have denied the allegation that the plaintiffs have approached to redeem the mortgage. It is stated that the defendants have suitably replied to the notice sent by the plaintiffs and sought for dismissal of the suit.

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Based on the above contentions, the Trial Court

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has framed the following issues:

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ISSUES

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"1) Whether the plaintiffs prove that their father Late Narayanasetty and Late C.N.Rangaswamy, husband of the 4^th plaintiff and father of 5^th plaintiff executed registered mortgage deed in favour of Sri.Parthasarathy for Rs.20,000?

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2) Whether the plaintiffs are entitled for redemption of mortgage?

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3) To what decree or order?"

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The plaintiff Nos.1 to 3 have been examined as

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PW.1 to 3 and got marked Ex.P.1 to 13. The fourth defendant has been examined as DW.1 and got marked Ex.D.1 to 4. The trial Court after hearing the arguments and appreciating the evidence on record has answered issue Nos.1 and 2 in the negative and dismissed the suit of the plaintiffs.

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Aggrieved by the judgment passed by the trial

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Court, the plaintiffs filed the appeal in R.A No.48/2008 on

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the file of Senior Civil Judge and CJM, Chamarajanagar. (first appellate Court).

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The first appellate Court after hearing the

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arguments on both sides has formulated the following points for consideration:

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"1. Do the trial Court erred in holding the

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disputed transfer as a sale?

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2. Does the finding of the trial Court call for interference?

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3. What order?"

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The first appellate Court answered point Nos.1

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and 2 in the affirmative and allowed the appeal, setting aside the judgment passed by the trial Court and decreed

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the suit directing the defendants to redeem the suit property by receiving mortgage amount of Rs.20,000/-. The said judgment of the first appellate Court passed in

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NC: 2023:KHC:21433 RSA No. 1361 of 2013

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R.A No.48/2008 has been challenged by the defendants in

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this second appeal.

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The second appeal came to be admitted to consider the following substantial questions of law that would arise for consideration in this appeal:

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"(i) Whether Ex.P.13 is a mortgage deed or the sale deed subject to a condition to re-purchase?

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(ii) Whether the first appellate Court committed an error in decreeing the suit of the plaintiffs?”

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Heard Sri. N.Shankarnarayana Bhat, the learned counsel for the appellants and Sri. Padmanabha V. Mahale, learned Senior counsel for the respondent No.1(ac), 2, 3, 4, 7 and 8(a- b) and Sri. R.C.Nagaraj, learned counsel for respondent Nos.5 and 6.

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Learned counsel for the appellants contended that the appellate Court has not referred to the oral evidence. He further contended that first appeal is a valuable right of the parties and they have right urge the

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questions of law and fact. The judgment in the first appeal must address itself to all the issues of law and fact and decided by giving reasons in support of the findings. On that point, he placed reliance on the decision of the Hon’ble Apex Court in the case of Madhukar and others Vs. Sangram and others, reported in (2001) 4 SCC

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756 .

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He further submits that on perusal of the

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judgment passed by the first appellate Court, it is clear that no oral evidence has been considered. There are admissions of PWs.2 and 3 that they executed the sale deed with a condition to purchase and the same has been ignored by the first appellate Court. The first appellate Court has ignored the evidence on plaintiff’s side and they have admitted that the term ‘mortgage by conditional sale’ has been inserted subsequently at the time of registration and it was not the intention of the parties to create any mortgage. He further contends that the provision of Section 58(c) does not apply to Ex.P.13, since it is a sale

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deed with a condition to repurchase. He contends that there is no debtor and creditor relationship between the parties to Ex.P.13. He contends that for the purpose of bringing the transaction within the meaning of mortgage by conditional sale, the first condition is that there should be mortgage. The mortgaging of the property on the condition that on payment of mortgage money, the buyer shall transfer the property to the seller. Although there is a presumption that the transaction is a mortgage by conditional sale in cases where the whole transaction is one document, but merely because of a term is incorporated in the same document it cannot always be accepted, that transaction agreed between the parties was a mortgage transaction. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of Vanchalabai Raghunath Ithape (Dead) by LR. Vs. Shankarrao Baburao Bhilare (Dead) by legal representatives and others reported in 2013 AIR (Civil) 743 .

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He further contends that the language in the document and the intention of the parties has to be looked into, to ascertain whether the said document is mortgaged by a conditional sale or sold with a condition to re-purchase. On that point, he placed reliance on the decision of the Co-ordinate Bench of this Court in the case

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of Smt.Rajamma and Others Vs. Sri B.Renuka Murthy reported in ILR 2016 Kar 1446.

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He further submits that one of the executant is a scribe of Ex.P13. He has categorically stated that the document is executed as a sale deed with a condition to re-purchase. The said aspect has been ignored by the First Appellate Court. He placed reliance on the decision of the Hon’ble Apex Court in the case of Tulsi and Ors. Vs. Chandrika Prasad and Ors. reported in A IR 2006 SC 3359 , wherein, it has been held as under:

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“ 20. Section 91 of the Evidence Act mainly forbids proving of the contents of a writing otherwise than by writing itself and merely lays down the ‘best evidence rule.’ It, however, does not prohibit the

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parties to adduce evidence, in a case, the deed is capable of being construed differently to show how they understood the same.”

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Placing reliance on the said judgment, he contends that Section 91 of the Evidence Act does not prohibit the parties to adduce evidence in a case, the deed is capable of being construed differently to show how they understood the same.

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He contends that there must be a Debtor and Creditor relationship. The valuation of the property and the transaction value along with duration of time for re-conveyance are important to decide the nature of the agreement. There will have to be cumulative consideration of all these aspects along with the recitals in the agreement, intention of the parties coupled with other attendant circumstances considered in the holistic manner. On that point, he placed reliance on the decision of the Hon’ble Apex Court in the case of Bhimrao Ramchandra Khalate (Deceased) through LRs V.Nana Dinkar

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Yadav (Tanpura) and Anr. reported in AIR 2021 SC

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3939 . He contends that the property has been sold for the market value and the same is mentioned in Ex.P13. The recitals of Ex.P13 does not establish a Debtor and Creditor relationship between the parties. The name of the purchaser has been entered in the assessment register as the owner of the property and he is paying the property tax. The plaintiffs have not produced any document to show that they paid the property tax of the suit schedule property after execution of Ex.P13, till filing of the suit. Without considering all these aspects, the First Appellate Court has erred in reversing the findings of the Trial Court and decreeing the suit.

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Learned senior counsel for the respondents would contend that Ex.P13 has been executed by the plaintiffs in favour of Sri.Parthasarathi for discharge of loan as mentioned in it and to meet other family necessities. The conditions attracting Section 58(c) of the Transfer of Property Act are embodied twice in Ex.P13. He

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contends that the recitals of Ex.P13 establishes that there is a Creditor and Debtor relationship between the parties to Ex.P13. He contends that there must exist a Debtor and Creditor relationship. The valuation of the property, transaction value, along with duration of time for re-conveyance are important to decide the nature of agreement. On that point, he placed reliance on the decision of the Hon’ble Apex Court in the case of Ganpati Babji Alamwar (Dead) By Legal Representatives Ramlu And Others Vs. Digambarrao Venkatrao

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Bhadke and Others reported in (2019) 8 SCC 651 .

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He further contends that the intention of the parties has to be gathered from the recitals in the document. If the language is clear, the same should be given effect to, but, if the language of the document is ambiguous, surrounding circumstances should be taken into account to ascertain the intention of the parties. On that point, he placed reliance on the decision of the Hon’ble Apex court in the case of Bibi Fatima and

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NC: 2023:KHC:21433 RSA No. 1361 of 2013

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Others Vs. M.Ahamed Hussain and Others reported in (2017) 11 SCC 832 . He placed reliance on the decision of the Hon’ble Apex Court in the case of Vithal Tukaram Kadam and Another Vs. Vamanrao Sawalaram Bhosale and Others reported in (2018) 11 SCC 172 , wherein, it has been held as under:

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“15. The agreement, Ext. 62, though styled as a sale deed, for a consideration of Rs 700 is but an ostensible sale, containing a clause for reconveyance. The agreement concludes as follows:

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"If I repay your amount of Rs 700 in any year (at any time) during the period of ten years from now then you have to return my said land to me, subject to this condition I have sold land to you."

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The significance of the words "repay", "return" and "subject to this condition" cannot be overlooked. They are not commensurate with a deed of absolute sale. The language used, conveys the distinct impression that the plaintiff did not intend to relinquish all rights, title and claims to his lands. The defendant was aware of the limited nature of right conveyed and had agreed to a conditional sale along with an obligation to return the lands if the amount was repaid.

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16. The plaintiff initially filed Civil Suit No. 89 of 1975 for specific performance to transfer the lands back to him. It was withdrawn with liberty to file a fresh suit for redemption. The filing of the fresh suit in 1986, beyond the period of ten years is hardly relevant. The limitation for the right to redeem, under Section 60 of the Act is thirty years.

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17. The parties were admittedly well known to each other since before. The plaintiff had been borrowing money from the defendant even earlier from time to time according to need, and even at the time of execution of the agreement he was in need of money. The value of the land was Rs 3500 far in excess of the amount of Rs 700 mentioned in the agreement. The defendant in cross-examination did not deny the recital in Ext. 66, dated 11-6-1975 in NE reply to notice, that he had demanded the sum of Rs 3500 with interest for a reconveyance. The relationship of debtor and creditor cannot be faulted with. The respondent did not take any steps for mutation for three long years after the execution of the deed. The plaintiff had specifically objected to mutation in the name of the defendant, by Exts. 33 and 34. The period for reconveyance provided in the agreement itself was inordinately long for ten years. The clause for reconveyance was in requirement with Section 58(c) of the Act. The High Court failed to consider the aforesaid factors in totality and in a holistic manner,

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while arriving at the finding that there was no debtor and creditor relationship between the parties, and that the agreement was a sale deed with an option to repurchase. The findings are clearly unsustainable.”

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He further argued that where two transactions

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are contained into two separate documents i.e., the sale and agreement to re-convey or re-purchase etc., it will not be deemed to be a mortgage. On that point, he placed reliance on the decision of the Co-ordinate Bench of this Court in the case of B.Jayashankarappa and Others Vs.

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D.S. Gulwadi reported in ILR 2000 Kar 2173 , wherein it

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has been held as under:

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“28. In view of this clear cut proposition of law and in absence of any explanation from the defendants/respondents as to why they did not choose to adopt or use the method of using two documents, the document has to be construed as a deed of mortgage with conditional sale. In view of the above circumstances and in view of absence of any expression, in the deed, of transfer of ownership and title in the property in present by delivery of possession of the property in lieu of a sum of Rs. 2,000-00 to a person by one who was a debtor, from

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earlier, the circumstances indicate clearly that the main purpose was to secure the repayment of the amount of Rs. 2,000-00, with a note of caution that if the person fails to pay the amount within the stipulated period of six months, the deed would become operative as absolute sale-deed therefrom.”

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He further argued that on a plain reading of the

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recital of Ex.P13 itself establishes that it is a mortgage deed and not a sale deed with a condition to re-purchase and there is a Debtor and Creditor relationship. The First Appellate Court has rightly appreciated the recital of Ex.P13 and rightly held that no oral evidence is required to be considered for ascertaining the nature of Ex.P13 and has rightly held that it is a mortgage deed.

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The only point which is involved in this appeal is; “ whether Ex.P13 is a mortgage deed with conditional sale or a sale deed with a condition to re-purchase?”

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There is a clear legal distinction between two concepts, a mortgage by conditional sale and a sale with a condition of re-purchase. The former is a mortgage,

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where the relationship of a Debtor and Creditor subsists and right to redeem remains with the Debtor. The latter is an out and out sale, whereby the owner transfers all his rights in the property to the purchaser, reserving personal right of re-purchase. The question to which category a document belongs presents a real difficulty which can only be solved by ascertaining the intention of the parties on a consideration of the contents of a document and other relevant circumstances.

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The Hon’ble Apex Court in the case of Suraj Narain Kapoor and Ors. Vs. Pradeep Kumar and Ors. reported in AIR 2017 SC 5046 has held that decided cases have laid down many tests to ascertain the intention of the parties, but, they are only illustrative and not exhaustive and further held as under:

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“5. The true nature of the document therefore has to be determined in the facts of each case, dependent on the nature of the recitals in the document, intention of the parties, coupled with other attendant surrounding circumstances. There

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can be no hard and fast rule for determining the nature of the document, devoid of these circumstances. Precedents, in abundance, will not suffice alone, as observed in Pandit Chunchun Jha v.Sheikh Ebadat All and another, 1955 SCR 174, as follows:-

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"There are numerous decisions on the point and much industry has been expended in some of the High Courts in collating and analyzing them. We think that it is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each case must be decided on its own facts."

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A bare reading of the original document reveal that it is styled as a sale deed with a condition to repurchase. Further, the recitals reveal that the vendors have made applications in the Court of Munsiff, Chamarajanagar in Execution No.136/1970 and Misc.No.21/1975 for possession of the schedule property and as per the agreement between them and

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Sri.Basavanna Devaru, they are required to pay a sum of Rs.14,000/- to cancel confirming of the property in their favour. For expenses of marriage of Sri.Ramadas, repayment of loan of Sri.Mukkher and house hold expenses they are executing the sale deed for a sum of Rs.20,000/-. The very said recitals clearly goes to show that the schedule property has been confirmed in favour of Sri.Basavanna Devaru in Execution No.136/1970 for a sum of Rs.14,000/-. The said aspect clearly reveal that the market value of the suit schedule property as on the date of Ex.P13 was Rs.14,000/-. In further recitals of Ex.P13, it is specifically stated that the market value of the suit schedule property is Rs.20,000/-. It is also stated that there is no due from Sri.Parthasarathi to the vendors.

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PWs.1 to 3 have stated that the market value of the schedule property is more than Rs.20,000/- as on the date of Ex.P13. But, no evidence is produced to show that the market value of the schedule property is more than

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Rs.20,000/- as on the date of Ex.P13. The further recitals reads as under:

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gÀÆ¥Á¬ÄUÀ¼À£ÀÄß £ÁªÀÅUÀ¼ÀÄ MnÖUÁUÀ°Ã CxÀªÁ £ÀªÀÄä°è AiÀiÁgÁzÀgÉÆ§âgÁUÀ°Ã ¤ªÀÄUÉ ¥ÁªÀw ªÀiÁr ¤«ÄäAzÀ µÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß ¥ÀÄ£À: PÀæAiÀÄPÉÌ ¥ÀqÉAiÀÄ®Ä £ÁªÀÅUÀ¼ÀÄ ºÀPÀÄÌ¼ÀîªÀgÁVgÀÄvÉÛÃªÉAzÀÄ M¦à ZÁªÀÄgÁd£ÀUÀgÀzÀ°è §gÉzÀÄ PÉÆlÖ ¸ÉÃ¯ï rÃqï «vï PÀArÃµÀ£ï lÄ j¥ÀgïZÉÃ¸ï ¥ÀvÀæ”.

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The word used in the said recital is “¥ÁªÀw” ie.,

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‘payment’. There is no word used “ªÀÄgÀÄ¥ÁªÀw

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‘re-payment’. The very said aspect clearly goes to show that there is no Debtor and Creditor relationship created between the parties to Ex.P13. During the said period of 10 years, the plaintiffs did not make any effort to re-purchase the property by paying Rs.20,000/- to Sri.Parthasarathi or his legal representatives who were the defendants.

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On perusal of Ex.P13, it is clear that the words ‘(mortgage by condition sale)’ in English have been

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inserted in between the words ‘¢ ¸ÉÃ¯ï rÃqï’ and “with a condition to re-purchase”. In the cross examination of PW2, he has admitted that the said words ‘mortgage by condition sale’ have been inserted at the instance of the Sub-Registrar.

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In the cross examination, PWs.2 and 3 have specifically admitted the execution of Ex.P13 thinking that it is a sale with a condition to re-purchase. PW3 is the scribe of Ex.P13, so also is one of the executant. In his cross examination, he has stated that the contents on Ex.P13 has been written by him after having discussion with his brothers and father. The said admissions given by PWs.2 and 3 clearly indicate that the intention of the parties was to execute the sale deed with condition to re-purchase.

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On perusal of the entire recitals of Ex.P13 and the evidence of PWs.2 and 3, it is clear that the executant executed Ex.P13 as a sale deed with condition to

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re-purchase. No Debtor and Creditor relationship has been

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created in the said Ex.P13.

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Ex.D2 is the tax assessment extract of the suit schedule property for the years 1994-95. The name of Smt.M.N.Savithramma, W/o Late T.N.Somashettar ie., mother of Sri.Parthasarathi has been entered in Column No.5 – owners name. On the basis of the said document, it can be said that the property tax has been paid by said Smt.M.N.Savithramma and the defendants.

¶170

The plaintiffs filed suit against the defendants in O.S.No.112/1998 seeking the relief of injunction in respect of the suit schedule property claiming that they are in possession. A copy of the plaint is at Ex.D3. Ex.D4 is the order sheet of the said suit in O.S.No.112/1998 which reveal that the said suit is dismissed for non prosecution on 27.03.2001.

¶171

The recitals of Ex.P13 does not evince the creation of a Debtor and Creditor relationship. On the

¶172

27 - NC: 2023:KHC:21433 RSA No. 1361 of 2013

¶173

contrary, it is specific that the vendors were in need of money to repay it to get release of the schedule property, expenses of marriage of one of the vendor and family necessity.

¶174

The suit for redemption was also filed beyond the period of ten years. The Trial Court observed that the recitals indicate that it was a sale deed. From the recitals of Ex.P13, it is clear that Rs.20,000/- was not taken as a loan at all. As rightly observed by the Trial Court, by executing Ex.P13, the executant discharged off their prior debts and outstanding. Therefore, for consideration of a sum of Rs.20,000/- a conditional sale was executed. The said aspect does not create the relationship of a Debtor and Creditor.

¶175

In Tamboli Ramanlal Motilal (Dead) by Lrs. Vs. Ghanchi Chimanlal Keshavlal (Dead) by Lrs. and another reported in AIR 1992 SC 1236 , the question was similar with regard to the nature of documents in the absence of any intention expressed with regard to a

¶176

NC: 2023:KHC:21433 RSA No. 1361 of 2013

¶177

28 -

¶178

Debtor and Creditor relationship holding that the document was not a mortgage by conditional sale, but sale with action to re-purchase. The Hon’ble Apex Court has held as under:

¶179

“17. What does the executant do under the document? He takes a sum of Rs.5,000 in cash. The particulars are (a) Rs.2,499 i.e. Rs. 899 by mortgage of his house on January 27, 1944 and (b) Rs. 1,600 by a further mortgage on May 31, 1947 totaling to Rs. 2,499. Thereafter, an amount of Rs. 2,501 in cash was taken from the transferee. The purpose was to repay miscellaneous debts and domestic expenses and business. It has to be carefully noted that this amount of Rs.5,000 was not taken as a loan at all. As rightly observed by the High Court, by executing this document the executant discharges all the prior debts and outstandings. Where, therefore, for a consideration of a sum of Rs.5,000 with the conditional sale is executed, we are unable to see how the relationship of debtor and creditor can be forged in. In other words, by reading the documents as a whole, we are unable to conclude that there is a debt and the relationship between the parties is that of a debtor and a creditor. This is a vital point to determine the nature of the transaction.

¶180

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¶181

18. The property is sold conditionally for a period of five years and possession is handed over. At the

¶182

same time, the document proceeds to state “Therefore, you and your heirs and legal representatives are hereafter entitled to use, enjoy and lease the said houses under the ownership right."

¶183

Considering all the above aspects, the First

¶184

Appellate Court has erred in considering Ex.P13 as a mortgage deed and reversing the finding of the Trial Court and decreeing the suit. The substantial questions of law (i) and (ii) are answered accordingly.

¶185

In the result, the appeal is allowed . The judgment and decree passed by the First Appellate Court in R.A.No.48/2008 dated 25.04.2013 is set-aside. Consequentially, the dismissal of the suit by the Trial Court is affirmed.

¶186

SKS,GH

¶187

Sd/JUDGE

Sri T S Rajashekar v. Sri N Venkatasubba Shetty

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Sri T S Rajashekar v. Sri N Venkatasubba Shetty

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