was purchased by the father of the Civil Appeal No 706 of 2015
Page 2 of 27 appellant, Gangaramaiah, in the name of the appellant, who was minor at that time. On 24.12.1973 the father of the appellant, Gangaramaiah sold the aforesaid property to one Rudramma for a sum of 5000/- (Rupees Five Thousand). A notice dated 24.11.1978 was got issued by the father of the appellant to the vendee seeking execution of the Conveyance Deed back in favour of the vendor in terms of the Reconveyance Deed executed on 24.12.1973. On 26.03.1987, the legal heirs of Rudramma sold the property in-question in favour of defendant no.4 in the suit, namely, N. A suit was filed by the appellant praying for various reliefs, which was dismissed by the trial Court.
It was submitted that even if under Section 58(c) of the 1882 Act, it is provided that clauses to treat the transaction of sale as a mortgage have to be in a single document, it is not a pre-condition, as the intention of the parties can be inferred from two separate documents executed on the same date. This clearly establishes that it was not an outright sale, rather it was a mortgage, which the father of the appellant could get redeemed within a period of five years. Learned Senior counsel appearing for the appellant placed reliance on the judgments of this Court in Indira Kaur (Smt.) and others v. The suit having been filed in the year 1987 challenging the Sale Deed of 1973, was thus, clearly time-barred. A suit was filed by the vendee seeking possession from the father of the appellant and also payment of rent in terms of the Lease Deed dated 24.12.1973. Insofar as the age of the appellant is concerned, though certain dispute was raised by the appellant claiming that he was 3 years of age when the Sale Deed was got registered by his father in favour of Rudramma on 24.12.1973, however, the fact is otherwise. The following prayers were made in the suit: “ Wherefore the plaintiff prays for judgment and decree against the defendants: a) declaring that the document dated 24-12-73 styled as a sale deed executed by late Gangaramaiah in favour of late Rudramma conveying the schedule property in her favour and registered as No.3266/73-74 at pages 172 to 174 in volume No.400 of Book-l in the office of the Sub- Registrar, Sreerampuram-Bangalore, is null and void and not binding on the plaintiff and does not convey any right, title or interest in respect of the schedule property to the defendants herein claiming through late Smt.
Rudramma; b) alternatively, declaring that the plaintiff is entitled to redeem the Mortgage of the schedule property under the above-mentioned sale deed coupled with the agreement of Reconveyance on payment of Rs.5,000/- to the defendants; on receipt of this sum, the defendants shall Civil Appeal No 706 of 2015 Page 10 of 27 execute the deed of redemption and return all the documents of title of the schedule property in their custody. Does plaintiff further prove that his father Sri Gangaramaiah was not competent to execute the Sale Deed dt.24.12.73 in favour of Smt. Rudramma? Thereafter, following additional issues were framed by the trial Court on 16.08.1994 : Civil Appeal
No 706 of 2015 Page 12 of 27 “1. The findings on the above issues recorded by the trial Court, as mentioned in para 20 of the judgment, are as under: “20.
Kiran Suri, learned Senior counsel for the appellants, on the aforesaid issue was that on a perusal of the documents the Court can always opine as to whether the intention of the party was to get an absolute Sale Deed registered or it was a mortgage.
“Mortgage ”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.- Civil Appeal
No 706 of 2015 Page 15 of 27 (a) xxx xxx xxx (b) xxx xxx xxx (c) Mortgage by conditional sale. A perusal of the aforesaid proviso to sub-section (c) of Section 58 of the 1882 Act provides that no transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondents which was entered into by and between the parties. A bare perusal of the said provision clearly shows that a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of retransfer may be evidenced by more than one document. Sajeda Bano
[(2000)
3 SCC 536] this Court upon construing Section 58( c ) of the Transfer of Property Act opined: (SCC pp.
Case Title: PRAKASH (DEAD) BY LR. Vs. G.ARADHYA .
Case Number: C.A. No.-000706-000706 / 2015
