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2001 Supreme(AP) 172

Andhra Pradesh High Court
Judges : BILAL NAZKI, V.ESWARAIAH
Badrunnisa Begum - Appellant
Versus
Mohamooda Begum - Respondent
LAP.No.16/99
Decided On : 02-16-01
Advocates Appeared :
Mr.K.V. Satyanarayana, Mr.P.S.Narayana

Headnote:EVIDENCE ACT, Secs.63 & 65 - Suit for reconveyance - Execution of sale deeds as security for a loan with specific understanding of recon-veyance on repayment of said lone - Defendant contends that agreement of reconveyance is false and fabricated document and suit barred by law - Trial court dismissed suit holding that plaintiff failed to prove agreement - Single judge set aside judgment of lower court directing defendant to execute sale deed reconveying property in favour of plaintiff.

       Plaintiff filed certified copy of alleged reconveyance agreement and its photo copy as original agreement of reconveyance was in the custody of third party - Trial court admitted certified copy of agreement treating it as secondary evidence - In the instant case no evidence to show that copy taken from copy was compared with original - Documents were marked as secon-dary evidence subject to final argu-ments on this point - Sec.65(a) does not in any way make a copy of copy admissible in evidence as it is barrred u/S.63 - Document on which the decree is based not admissible evidence - Reconveyance deed not executed on the date of sale deed was in fact a sale deed, as there was no reconveyance deed - Judgment of single judge set aside.

BILAL NAZKI, J.

( 1 ) THE appellant was defendant in a suit filed by the respondent being O. S. No. 306 of 1975 which was decided by IV Additional Judge, City Civil Court, Hyderabad. The suit was for reconveyance of house No. 22-8-389-1 and 2 situated at Purani Haveli, Hyderabad by executing a sale deed in favour of the plaintiff. The plaintiff s case was that she was owner of the house No. 22-8-389-1 and 2 at Purani Haveli. The defendant s husband had been dealing in money lending and he used to advance money with exorbitant rate of interest. To avoid legal complications he adopted the method of obtaining nominal, sham and formal sale deeds in respect of the properties in different names and through different persons to serve as security for the loan advanced. He also got executed rental deeds to realise the interest on the amount advanced. At no time parties intended to sell or transfer ownership of the properties under the documents executed. On or about 22-8-1969 Hasan Bin Mubarak, husband of the defendant advanced a loan of Rs. 2,000. 00 and Rs. 3,000. 00 and obtained sale deeds executed by the plaintiff s husband in favour of the brother of Hasan Bin Mubarak for the plot of land at Somajiguda with the specific understanding of reconveyance of said plot on repayment of loan of Rs. 5,000. 00. Similarly, on the same day i. e. , 29-8-1969 he advanced a further sum of Rs. 2,000. 00 on a pronote and also a sum of Rs. 3,000. 00 and got sale deed executed in favour of Bashir Bin Mubarak in respect of plot of land at Kaladera with specific understanding of reconveyance on repayment of the said loan. The aggregate loan advanced was Rs. 10,000. 00 through different persons and sale deeds were executed as security for the loan. On 20/08/1969 a sum of Rs. 8,000. 00 was advanced by Hasan Bin Mubarak, husband of the defendant and title deeds of house No. 22-8-389-1 and 2 of Purani haveli were taken. On 20-9-69 a further sum of Rs. 12,000. 00 was advanced and a sale deed of the house was obtained. Accordingly an agreement of reconveyance of the said house was executed on the same day i. e. 22-9-69. Possession of the house was not conveyed. There was no mutation effected in the revenue records. However, a rental deed was executed for Rs. 375. 00 per month representing interest on the amount so advanced. On 24-9-69 a further sum of Rs. 20,000. 00 was advanced by Hasan Bin Mubarak through the defendant. A pronote was executed on the same day. Rs. 15,000. 00 were advanced on 7-11-69 and another pronote was obtained on the same day. The reconveyance dated 22-9-69 was substituted by a fresh reconveyance deed on 7-11-69. Rent of Rs. 375. 00 was enhanced to Rs. 1100. 00 and a fresh rental agreement was executed on 20/02/1971. The plaintiff continued to be in possession of the property. He let out the same to the Government. The defendant s husband Hasan Bin Mubarak was collecting huge amounts every month. He got executed pronotes in favour of Abdul Rahim Bin Mubarak representing the earlier loan of Rs. 55,000. 00 plus interest. It was further stipulated that Rs. 10,000. 00 were to be paid as per agreement dated 5-1-70. He retained the original agreement in his custody. The said document was signed by Abdul Rahim Bin Mubarak and Hasan Bin Mubarak the husband of the defendant. The plots taken as security had been sold for a paltry sum to their relatives and friends by the defendant and her husband. The defendant had filed O. S. No. 301 of 1974 for arrears of rent of Rs. 37,820. 00. O. S. 689 of 1972 was filed by Abdul Rahim Bin Mubarak against Mirza Mohiuddin Baig, the husband of the plaintiff on the basis of pronote for Rs. 60,000. 00. Rs. 80,000. 00 had already been realised by way of cash and rent by the defendant. The plaintiff was ready and willing to pay the amount if any still unpaid.

( 2 ) THE defendant filed her written statement denying the allegations. Her case was that, she had purchased the suit property for a valuable consideration t








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