SHANKAR MADHAORAO GAMPAWAR Vs. MALTIBAI

JUDGEMENT

(1.) THE appellants are the defendants who are the heirs of one Madhaorao Gampawar. The plaintiff brought a suit for possession of a house situated at Chanda basing her claim on a document which is styled as a conditional sale deed executed by Madhaorao on 18-6-1953 for a consideration of Rupees 9,00/ -. The terms of the deed were that in case the defendants father Madhaorao paid back the amount of Rs. 9,00/- in one year, the plaintiff should execute a deed of reconveyance and deliver back the possession of the house property to him; but if the defendant's father failed to pay back the amount of Rs. 9,000/- as agreed, the conditional sale deed would be an absolute one and the defendant's father would lose and forfeit his right of getting a deed of reconveyance. The plaintiff alleged that the defendant's father had paid only rs. 1,600/- by 20-6-1954 which was the last date fixed for getting a deed of reconveyance and that her conditional sale deed had become an absolute one and, therefore, she was entitled to possession. After the initial payment of Rs. 1,000\- by the defendant's father made on 29-4-1954, he had further paid Rs. 1,100/- on 7-1-1955; Rs. 400/- on 6-4-1955 and Rs. 1,000/- on 7-5-1957. Thus a total amount of Rs. 3,500\- was received by the plaintiff, she was entitled to appropriate towards compensation for use and occupation of the house by the defendant's father. This amount, according to the plaintiff, she was entitled to appropriate towards compensation for use and occupation of the house by the defendat's father who had utilised all rents and profits from the building. The plaintiff made an alternative claim that in case the transaction amounted to a mortgage by conditional sale, she was entitled to a decree for foreclosure against the defendants in respect of the house. She therefore, claimed Rs. 9,000/- along with interest at 1 per month by way of damges. She also relied on a letter dated 27-6-1955 (Ex. 64) written by the defendants' father agreeing to pay interest at 1 per cent per month as he wanted further extension of time to get a deed of reconveyance. Along with the plaint, she filed a schedule of accounts, in which charging interest at the rate of 1 per cent, per month and giving credit for repayments made from time to time, Rupees 13,782,62 were shown to be due from the defendants.

(2.) ACCORDING to the defendants, the transaction in dispute was a mortgage and not a sale and the defendants had a right to redeem the mortgage. They denied that the plaintiff was entitled to a decree for Rs. 13,782. 62 P. According to them the plaintiff was a money-lender, and sine she had no licence under the C. P. Moneylenders Act, she was not entitled to file a suit for recovery of the mortgage dues. According to them, the consideration for the document was not Rs. 9,000/- but only Rs. 8,000\- and therefore, the plaintiff. was entitled to claim only Rs. 8,000/- but they were entitled to be given credit for the amounts repaid by their father. They further pleaded that in case the transaction was held to be a sale, they should be given credit for Rs. 3,000/- which were spent by their father for repairs and maintenance while making account for damages for use and occupation of the suit premises.

(3.) THE trial court held that the transaction dated 18-6-1953 was a mortgage by conditional sale and that the plaintiff was entitled to interest at 12 per cent per annum as agreed by the defendants' father. It found that Rs. 9,000/- were due on account of the mortgage amount as principal and Rs. 4,782. 62 as interest. Thus, the defendants were directed to pay Rs. 13,782. 62 and costs of the suit to the plaintiff out of the mortgaged property with 4 per cent. Per annum future interest on Rs. 9,000/- from the date of suit till satifaction within six months from the date of the decree, failing which the plaintiff was to apply for a final decree for foreclosure. A preliminary decree was, therefore, accordingly directed to be drawn. The defendants have now filed this appeal.