Decided on December 27,1971



Gopal Rao Ekbote, J. - (1.)Defendants 2, 16 and 17 are the appellants in L.P.A. No.167 of 1967. 11th defendant is the appellant in L.P.A. No. 48 of 1968. These two appeals are directed against the judgment of our learned brother Krisnha Rao,.J., given in S.A. No. 648 of 1963 on 27th July, 1967, whereby the learned Judge allowed the appeal and decreed the plaintiff's suit. He passed a preliminary decree for redemption and gave six months' time to the plaintiff to redeem.
(2.)The relevant facts in order to appreciate the contentions raised before us are that the plaintiff filed the suit for declaration that the suit document Exhibit A-4, dated 19th March, 1935, is a mortgage by conditional sale and permit him to redeem the same. His contention was that defendants r to 4 are mortgagees and the rest of the defendants are the alienees or their heirs. The mortgaged property is the ancestral property of the plaintiff and his deceased father Ramachandrarao. The father on behalf of himself and as the guardian of the plaintiff executed a simple mortgage on 1st March, 1929, in favour of defendants 1 to 3 and one Dhanireddi, the deceased father of the 4th defendant. In 1935, when defendants 1 to 3 and Dhanireddi made demands for the payment of the mortgage debt the plaintiff and his father executed Exhibit A-4 styling it as a sale deed but embodying therein all the recitals of a mortgage by conditional sale. The amount was to be paid within one year, that is before 19th March, 1936, with interest. The plaintiff therefore, contended that it was a mortgage deed and consequently he is entitled to redeem.
(3.)The plaintiff gave notice on 3rd August, 1945, asking the defendants to render accounts of the profits. They did not however give any reply. The plaintiff therefore, sent another notice on 17th September, 1945, to which the 2nd defendant sent a reply on loth October, 1945 that Exhibit A-4 is a sale deed and not a mortgage. The other defendants also sent reply on the same basis. The plaintiff then filed O.S. No. 48 of 1946 before the District Munsif's Court, Tanuku, which was transferred and renumbered as O.S. No. 82 of 1947 at Bhimavaram, for a declaration that the suit document was a mortgage bond by conditional sale. The suit, however, was dismissed on the ground that a suit for mere declaration would not lie. The same was confirmed in A.S. No. 19 of 1948 by the Subordinate Judge, Narsapur. On second appeal, the High Court also held that the suit was not maintainable for bare declaration. The plaintiff then filed a suit for a declaration that the suit document was a mortgage by conditional sale and for consequential reliefs in the Court of District Munsiff of Tanuku which was numbered as O.S. No. 6 of 1960.

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