IMPORTANT POINT
Redemption of mortgage – No transaction shall be deemed to be a mortgage, unless condition is embodied in document which effects or purports to effect sale.

JUDGMENT :

Rajesh Bindal, J.

1. The appellant has filed the present appeal before this Court impugning the judgment¹[Dated 09.12.2009 in RFA No.969/2000] of the High Court of Karnataka at Bangalore by which the Appeal²[O.S. No.3752/1987 dated 23.08.2000] filed by the appellant against the judgment and decree of the trial Court was upheld.

FACTS

2. The facts, as evident from the record, are that on 16.10.1963 a property measuring 30 ft. x 60 ft. was purchased by the father of the 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 Rs.5000/- (Rupees Five Thousand). The age of the appellant, who claimed himself to be minor at that time, was mentioned as 13 years. On the same day, another unregistered document was executed between the parties claiming to be Reconveyance Deed in terms of which on the request of the vendor, the vendee had agreed to re-transfer the property back within five years of the Sale Deed in case the sale consideration of Rs.5000/- (Rupees Five Thousand) is paid.

3. 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. The same was replied to by the vendee- Rudramma through her counsel on 02.12.1978 stating that the Sale Deed dated 24.12.1973 was not a mortgage by conditional sale. It was an outright sale of the property. It was admitted that on the same date, an agreement of reconveyance was entered into. On 24.07.1978, a suit³[SC No.3608/78 before the Small Cause Court, Bangalore] was filed by Rudramma seeking eviction of the Gangaramaiah in terms of the Lease Agreement dated 24.12.1973 as he had not been paid the rent. While reserving her rights in the aforesaid suit, Rudramma stated in the reply to the notice that she is ready and willing to get the Conveyance Deed executed on receipt of Rs. 7000/- (Rupees Seven Thousand).

4. A suit was filed by Ganagaramaiah seeking permission from the Court to mortgage the property of the minor. A public notice was issued inviting objections. Vide order dated 27.09.1978 permission was granted to execute fresh Mortgage Deed in order to discharge the earlier mortgage for a sum of Rs.7000/- (Rupees Seven Thousand). 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. Shashidar. Gangaramaiah died on 30.04.1987.

5. A suit²[O.S. No.3752/1987 dated 23.08.2000] was filed by the appellant praying for various reliefs, which was dismissed by the trial Court. The judgment of the trial Court was upheld by the High Court.

APPELLANT’S ARGUMENTS

6. In the aforesaid factual matrix, Mrs. Kiran Suri, learned senior counsel appearing for the appellant, submitted that the finding recorded by the courts below, that the suit filed by the appellant-plaintiff was time barred, is totally erroneous. The prayer in the suit was for redemption of the mortgage. On interpretation of the documents, it is clearly made out that the intention of the vendor was to mortgage the property. On the very same date, the Reconveyance Deed was executed though separately, in terms of which the vendee had agreed to re-transfer the property on returning back the consideration money within a period of five years from the date of execution of the Sale Deed. The terms mentioned in the document need to be interpreted. It can be very well made out that, it was a mortgage and not an agreement for re-purchase of the property. It was submitted that even if under Section 58(c) of the 1882 Act⁴[The Transfer of Property Act, 1882], 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,