CHAMPALAL Vs. RAGHUNATHRAO

JUDGEMENT

(1.) THIS appeal has been filed by the defendants against the judgment of reversal passed by the lower appellate court dated 29/3/2007 in Civil Appeal No.97-A/2006 which has been admitted on 7.2.2011 on the following substantial question of law :

(2.) THE facts in brief are that a suit seeking declaration was filed by the plaintiff inter alia contending that the sale deed Ex.P/3 dated 8.11.1977 is not an absolute sale, it is the mortgage by conditional sale with respect to a house situated in Hatkeshwar Ward, Khandwa. Initially by way of a loan transaction an agreement was executed by Raghunath Rao in favour of Champalal on 17.8.1971 for an amount of Rs.2500.00 with a condition to re-pay the loan along with the interest. When the said amount could not be paid, however on having demand of some more money the sale deed was executed on 8.11.1977 by Raghunath Rao with respect to the said house in favour of Narendra Kumar and Ramesh. It is averred that it was not the absolute sale but mortgage by conditional sale and in this regard an agreement was executed on the same day. THE said agreement has not been exhibited but a photocopy thereof is is available and the said document has been admitted in para 18 of the written statement by the defendants. THE amount could not be paid by the plaintiff, however by paying some amount the sale deed of part of the house was executed in favour of plaintiff Ex.P/2 on 13.10.1980 by defendant's son Ramesh Soni, however the suit was filed seeking relief that the document Ex.P/3 be declared to be a mortgage by conditional sale and the plaintiff be declared owner of the entire house.

(3.) LEARNED trial Court has dismissed the suit but lower appellate court reversing the finding of the trial Court found that the document Ex.P/3 which is a sale deed executed in favour of Ramesh and Narendra Kumar S/o Champalal by Raghunath Rao is not an absolute sale but it is a mortgage by conditional sale, however referring the document Ex.P/2 it was observed that the amount of Rs.15,000.00 has been paid and the total amount payable comes to Rs.24,936.00. Thus on payment of remaining amount of the plaintiff Rs.9,936.00 the sale deed be executed by the defendants in favour of the plaintiff.