Karnataka High Court
Sri.A.Krishna Murthy vs Smt.Janakamma on 29 April, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2026:KHC:24690
RFA No. 671 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.671 OF 2021 (SP)
BETWEEN:
1. SRI.A.KRISHNA MURTHY
SINCE DEAD BY HIS LR'S
2. SMT K MANJULA
D/O A KRISHNA MURTHY
W/O V GOPAL RAM PRASAD
AGED ABOUT 50 YEARS
R/AT NO.8,
BEHIND V CITIZEN HIGH SCHOOL
VIVEKANANDA NAGAR,
HOSAKOTE
BENGALURU RURAL - 562 114.
3. SRI K RAGHAVENDRA
S/O A KRISHNA MURTHY
Digitally signed AGED ABOUT 48 YEARS
by CHANDANA R/AT NO.42, 6TH CROSS,
BM
Location: High MAGADI ROAD
Court of BENGALURU - 560 023.
Karnataka
4. SMT USHA DEVI
D/O A KRISHNA MURTHY
W/O LATE HARIPRASAD
AGED ABOUT 49 YEARS
R/AT NO.42, 6TH CROSS
MAGADI ROAD,
BENGALURU - 560 023
...APPELLANTS
(BY SRI. GURUDHATTA K, ADVOCATE)
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NC: 2026:KHC:24690
RFA No. 671 of 2021
HC-KAR
AND:
1. SMT.JANAKAMMA
W/O LATE N V SUBBA RAO
AGE NOT KNOWN
NO.98, 1ST MAIN, 6TH CROSS
JAI BHEEMA NAGAR
BIMI STAGE
BANGALORE - 560 058.
2. M V KRISHNA MURTHY
S/O VALLABHARAYAPPA
AGED ABOUT 78 YEARS
R/AT NO.23/5
VENKATAPPA STREET
BANGALORE - 560 004.
3. V RAMA RAO
S/O LATE VALLABHARAYAPPA
AGED ABOUT 66 YEARS
R/AT NO.879, 29TH MAIN,
9TH BLOCK, JAYANAGAR
BANGALORE - 560 011.
4. SMT N V VIJAYAMBA
W/O C N SATHYANARAYANA
AGED ABOUT 89 YEARS
R/AT NO.16/2
1ST FLOOR, SRINIVASA NILAYA
1ST MAIN ROAD,
VIJAYARANGAM LAYOUT
BEHIND WARD OFFICE
BASAVANGUDI
BANGALORE - 560 004.
5. SRI B K CHANDRASHEKAR
S/O N V KRISHNA MURTHY
AGED ABOUT 58 YEARS
NO.23/5, YENKATAPPA STREET
CHICKMAVALLI
BANGALORE - 560 004.
6. SRI V R SRINIVASA MURTHY
S/O LATE V RAMA RAO
AGED ABOUT 65 YEARS
R/AT NO.879, 28TH MAIN
9TH BLOCK, JAYANAGAR
BENGALURU - 560 069.
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NC: 2026:KHC:24690
RFA No. 671 of 2021
HC-KAR
7. SRI. ARUMUGAM @ ANAND MURTHY
S/O MURAGA PILLAI
AGED ABOUT 68 YEARS
RESIDING AT NO.106/A, 1ST MAIN ROAD
3RD CROSS, PRAKASH NAGAR
BENGALURU - 560 021.
...RESPONDENTS
(BY SRI. R. SRINIVASA GOWDA, ADVOCATE FOR R-7;
SRI. JAGADEESHA S. AND
SMT. MEENA L., ADVOCATES FOR R-5;
VIDE ORDER DATED 04.09.2025
NOTICE TO R-1 TO R-4 & R-6 IS H/S)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 24.05.2021 PASSED IN
O.S.NO.2107/1983 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL
JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR SPECIFIC
PERFORMANCE.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
This appeal by the plaintiffs in O.S.No.2107/1983 is directed against the judgment and decree dated 24.05.2021 passed by the XI Addl. City Civil Judge, Bengaluru City, whereby the said suit filed by the appellants - plaintiffs against the respondents - defendants was dismissed by the Trial Court.
2. Briefly stated the facts giving rise to the present appeal are as under:
-4-NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR 2.1 In the first instance, the sole plaintiff - Sri. Gangaram Prasad instituted the aforesaid suit against the sole defendant No.1
- Smt.Achamma for specific performance directing the defendant to execute Re-conveyance Deed in favour of the plaintiff in respect of the suit schedule immovable property by accepting the balance amount of Rs.2,000/- or alternatively to decree the suit for redemption of mortgage and for other reliefs. Subsequently, the plaintiff got the plaint amended by adding / incorporating the relief of redemption of mortgage dated 14.06.1965 in relation to the suit schedule immovable property by declaring the purported Sale Deed dated 14.06.1965 as a Mortgage Deed and in the alternative for specific performance directing defendant to execute the Re-conveyance Deed in favour of the plaintiff in respect of the suit schedule immovable property by accepting the balance amount of Rs.2,000/- and for other reliefs. Further, the 2nd and 3rd defendants were subsequently impleaded as additional defendants in the suit and both the original plaintiff and the original 1st defendant having expired during the pendency of the suit, their legal representatives were brought on record.-5-
NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR 2.2. The plaintiff contended that the suit schedule immovable property, which was his ancestral property was sold by him in favour of M.V.Tulasiram in 1953 and repurchased vide registered Sale Deed dated 11.03.1953. It was contended that Sri.N.V.Subba Rao S/o. Smt. Achamma, the defendant No.1 agreed to lend a sum of Rs.4,000/- in favour of the plaintiff with interest at 5% per annum, in pursuance of which, the plaintiff executed a simple Mortgage Deed dated 04.04.1963 in favour of the defendant, but the possession of the suit schedule immovable property continued to remain with the plaintiff. In the year 1965, the plaintiff requested the aforesaid Subba Rao son of 1st defendant to pay an additional sum of Rs.3,000/- for the purpose of performing his daughter's marriage and after having received the said sum, the plaintiff executed a registered document dated 14.06.1965 styled as a 'Sale Deed' which was infact a Mortgage Deed and a nominal document by way of security and the 1st defendant agreed to re-convey the suit schedule immovable property back to the plaintiff upon repayment of the said sum within three years from that date. It was contended that the market value of the suit schedule immovable property in the year 1965 was -6- NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR Rs.25,000/-, which indicates that the transaction between the plaintiff and 1st defendant was a mortgage transaction and not a sale transaction as recited in the document dated 14.06.1965 and a separate Re-conveyance Deed was also executed by the 1st defendant in favour of the plaintiff. It was also averred that on the very same day i.e., on 14.06.1965, the 1st defendant had obtained a Lease Deed from the plaintiff by showing the monthly rent as Rs.87.50 for the purpose ensuring prompt and regular enforcement of the mortgage transaction and repayment by the plaintiff.
2.3. The plaintiff contended that since he was not in a position to repay the amount within a stipulated period of three years, the defendant extended the time for repayment from 14.06.1968 to 14.06.1970 and on 19.05.1968 the plaintiff paid a sum of Rs.2,025/- to the 1st defendant towards interest in respect of the mortgage transaction. It was contended that the plaintiff was a Postman retired in the month of October 1970 consequent upon which the plaintiff paid a sum of Rs.2,000/- in October 1970 and Rs.3,000/- on 28.02.1971 to the 1st defendant towards the mortgage transaction in pursuance of which, the 1st defendant executed a Deed dated 03.08.1971 agreeing to re-convey the suit -7- NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR schedule immovable property back to the plaintiff upon payment of the balance amount by him to the 1st defendant.
2.4 The plaintiff further contended that the defendant filed a suit seeking arrears of rent which was decreed exparte against the plaintiff and also petitions under the Karnataka Rent Control Act, 1961, for eviction against the plaintiff. It was also contended that there were other litigations between the plaintiff and defendant including W.P.No.11867/1984, which was carried in appeal in W.A.No.2478/1986 before this Court and culminated in SLP No.13664/1990 dated 23.10.1996 whereby the Apex Court disposed of the said petition leaving open the parties to workout the remedies before the appropriate forum. Meanwhile, since the defendant did not comply with the requests and demands made by the plaintiff to re-convey the suit schedule immovable property back to the plaintiff and refused to receive the balance sale consideration of Rs.2,000/-, plaintiff instituted the aforesaid suit against the defendant seeking the aforesaid reliefs.
3. The original 1st defendant filed written statement disputing and denying the various allegations and claims made by the plaintiff and interalia contended that on 04.04.1963, the plaintiff -8- NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR executed a usufructuary mortgage deed in favour of the 1st defendant and put him in possession and enjoyment of the suit schedule immovable property. Subsequently, the plaintiff executed a registered Sale Deed in favour of the 1st defendant selling, transferring and conveying the suit schedule immovable property absolutely in favour of the 1st defendant. However, since the plaintiff expressed his difficulty in securing alternative accommodation, the defendant executed a Lease Deed in favour of the plaintiff, also dated 14.06.1965 in pursuance of which, the plaintiff became a tenant / lessee under the defendant in respect of the suit schedule immovable property and the plaintiff was in possession and enjoyment as a tenant and not as a mortgagor / agreement holder as falsely contended by the plaintiff. It was contended that the amounts paid by the plaintiff to the defendant after execution of the registered Sale Deed dated 14.06.1965 were towards arrears of rent and not towards re-conveyance transaction and the various allegations urged by the plaintiff were denied / disputed by the defendant.
3.1 The defendant also contended that he had instituted a suit in O.S.No.2689/1973 against the plaintiff for arrears of rent -9- NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR which was decreed ex-parte in favour of the defendant against the plaintiff and the Miscellaneous Petition filed by the plaintiff was dismissed thereby confirming that there existed jural relationship of landlord and tenant between the defendant and the plaintiff and in the light of the said judgment dated 21.09.1976 passed in O.S.No.2689/1973 in favour of the defendant against the plaintiff, the present suit seeking to reagitate the very same issues is barred by principles of res-judicata and the same was not maintainable and is liable to be dismissed. So also, in the eviction proceedings in HRC No.1271/1973 and HRC No.8722/1980 as well as CRP No.3558/1981, the claim of the defendant has been upheld and the claim of the plaintiff has been negatived and no reliance can be placed upon the judgment of the Apex Court arising out of W.P.No.5482/1977 by the plaintiff in support of his claim. The defendant specifically denied and disputed the alleged re-conveyance Deed of the year 1965 as well as the alleged agreement dated 03.08.1971 said to have been executed by the defendant in favour of the plaintiff. The defendant also contended that the suit was barred by limitation and the same was liable to be
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR dismissed on this ground also. Under these circumstances, the 1st defendant sought for dismissal of the suit.
4. As stated supra, upon the demise of Smt.Achamma, the original 1st defendant, her legal representatives - N.V.Subba Rao and N.V. Krishnamurthy filed additional written statement on 01.01.2000 and reiterated the various contentions put-forth by her and sought for dismissal of the suit. So also, the impleaded 2nd and 3rd defendants, who are none other than the grandsons of the original 1st defendant filed separate written statements and sought for dismissal of the suit.
4.1 Based on the aforesaid pleadings, the Trial Court framed the following issues and additional issues:
(1) Whether the plaintiff proves that the Mortgage deed dated 4.4.63 executed by him in favour of the defendant was only a simple mortgage and the rent bond executed by the plaintiff was only nominal for the purpose of security interest as alleged?
(2) Whether the plaintiff proves that the sale deed dated 14.6.1963 executed by him in favour of the defendant was only a nominal sale deed and that the same was the mortgage deed in nature?
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR (3) Whether the plaintiff proves that his transactions with the plaintiff were the effect transactions of simple mortgage and the lease deeds executed by him in favour of the defendant were nominal and meant only to ensure regular and prompt payment of interest?
(4) Whether the plaintiff proves that he has paid a sum of Rs.2,000/- during the year 1970 and Rs.3,000/- on 28.2.1971 towards the alleged principal and the defendant executed the alleged deed on 3.8.1981 agreeing to execute the re-conveyance deed in favour of the plaintiff and whether the plaintiff proves that he sent a sum of Rs.2,000/- by cheque towards his performance as alleged?
(5) Whether the defendant proves that the suit is not maintainable and is barred by the principles of res- judicata in view of the findings given in O.S.No.2689/1973 by the learned Munsiff, Bengaluru ?
(6) Whether the suit is hopelessly barred by time?
(7) Whether the plaint is liable to be rejected under Order VII Rule 11 of CPC?
(8) Whether the suit is maintainable in view of the relief prayed for by the plaintiff under the provisions of Karnataka Debt Relief Act before the Taluka Executive Magistrate?
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR (9) Whether the plaintiff is entitled to the relief of specific performance of the alleged contract and alternatively for the redemption of the alleged mortgage?
(10) Whether the suit is not properly valued?
(11) To what relief the parties are entitled to?
Additional issues:
(1) Whether plaintiff's LR proves that the alleged sale deed dated 14.6.1965 though styled as sale deed, but in reality, it is deed of mortgage and liable for redemption?
(2) Whether plaintiff's legal representatives proves that in the alternative, she is entitled for specific performance of contract by execution of re-conveyance deed through defendants in respect of suit schedule property after payment of balance sale consideration amount of Rs.2,000/-?
4.2 The daughter of the deceased plaintiff was examined as PW2 and four witnesses as PW1, PW3 to PW5 and documentary evidence at exhibits P1 to P36 were marked on their behalf. The 2nd defendant and defendant No.1(a) examined themselves as DW1 and DW2 and exhibits D1 to D9 were marked by them. The 3rd defendant, who was earlier the impleading
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR applicant examined himself as AW1 and exhibits A1 to A3 were marked on his behalf.
4.3 After hearing the parties, the Trial Court proceeded to pass the impugned judgment and decree dismissing the suit filed by the plaintiff, whose legal representatives are before this Court by way of the present appeal.
5. Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.
6. The following points arise for consideration in the present appeal:
(i) Whether the Trial Court was justified in coming to the conclusion that the registered document dated 14.06.1965 executed by the original plaintiff in favour of the original 1st defendant was an out and out Sale Deed and not a nominal Mortgage Deed / security transaction as contended by the plaintiff ?
(ii) Whether the Trial Court was justified in holding that the defendant had not agreed to re-convey the suit schedule immovable property in favour of the plaintiff either in 1965 or under the document dated 03.08.1971?
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR
(iii) Whether the Trial Court was correct in coming to the conclusion that the suit was barred by limitation and that the plaintiff was not ready and willing to perform his part of the contract in relation to the agreement for re-conveyance?
(iv) Whether the impugned judgment and decree passed by the Trial Court warrants interference by this Court in the present appeal?
Reg. point No.(i):
7. A perusal of the material on record will indicate that it is the specific contention of the plaintiff that he mortgaged the suit schedule property in favour of the defendant on 04.04.1963 by receiving a sum of Rs.4,000/- from her and thereafter, he executed a registered document styled as a Sale Deed dated 14.06.1965, which was nominal in nature and meant to be a security after receiving an additional sum of Rs.3,000/- from the defendant. It is further contended by the plaintiff that on that day, the defendant obtained one more document styled as a Lease Deed from the plaintiff and permitted him to continue to remain in possession and enjoyment of the suit schedule property and the defendant executed a Re-conveyance Agreement on that day agreeing to re-convey the suit schedule property back to the plaintiff upon
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR repayment of the total sum of Rs.7,000/- by him to the defendant.
It is also contended that out of the aforesaid total sum of Rs.7,000/-
payable by him, the plaintiff paid a sum of Rs.2,000/- to the defendant in October 1970 and Rs.3,000/- in February 1971 and the balance of Rs.2,000/- was payable by him to the defendant and in this regard a receipt dated 03.08.1971 was executed by the defendant in favour of the plaintiff. On the other hand, defendant contended that on 14.06.1965, the plaintiff executed an absolute Sale Deed at Ex.D1 in favour of the defendant, who leased the suit schedule property back to the plaintiff vide Lease Deed dated 14.06.1965 at Ex.D2 in favour of the plaintiff and permitted him to continue to remain in possession and enjoyment of the suit schedule property under the defendant.
8. In this context, it is pertinent to note that the daughter of the plaintiff is examined as PW2 and the certified copy of the Sale Deed dated 14.06.1965 is confronted to her and since she admitted the said document, it is marked as Ex.D1 in the cross-
examination; so also, the Lease Deed, also dated 14.06.1965 executed between the plaintiff and defendant was also confronted to PW2 and marked as Ex.D2 in the cross-examination. In fact,
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR PW2 not only admits Ex.D1 and Ex.D2, but also that both the documents bear the signature of her father (original plaintiff) and had been executed by him. A perusal of the contents of Ex.D1 and Ex.D2 will clearly indicate that while Ex.D1 dated 14.06.1965 was out and out Sale Deed and not a mortgage deed / security deed / nominal deed as sought to be contended by the plaintiff, Ex.D2 dated 14.06.1965 was also an out and out Lease Deed executed between the defendant and the plaintiff under which the plaintiff became a tenant under the defendant on a monthly rent of Rs.50/-
payable by him to the defendant. Further, in her cross-examination PW2 also admitted that as per Ex.D2 - Lease Deed, his father (original plaintiff) regularly paid rents to the defendant and there was no mention regarding payment of interest in the said document.
9. The material on record also discloses that apart from the aforesaid testimony of PW2, the plaintiff did not adduce any other legal or acceptable evidence to establish that Ex.D1 and Ex.D2 were not an out and out sale Deed and Lease Deed, respectively, but the transaction between the parties was a nominal loan transaction / mortgage transaction / security transaction as
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR sought to be contended by the plaintiff; there is no gainsaying the fact in the absence of any other material produced by the plaintiff, the said contention is clearly impermissible and inadmissible in the light of the provisions contained in Sections 91 and 92 of the Indian Evidence Act; in addition thereto, the only other witness examined by the plaintiff is PW3, husband of PW2 (daughter of original plaintiff) and his evidence is clearly self serving and interested testimony and no reliance can be placed upon the evidence of PW3 as regards the transaction / document dated 14.06.1965, particularly when PW3 got married to PW2 on 19.06.1965, subsequent to 14.06.1965 when the Sale Deed and Lease Deed were executed between the parties; further, while PW1 is a Tahasildar, PW4 and PW5 do not speak anything with regard to Ex.D1 and Ex.D2 dated 14.06.1965. Under these circumstances, I am of the considered opinion that the Trial Court was fully justified in coming to the conclusion that the documents at Ex.D1 and Ex.D2 were out and out Sale Deed and Lease Deed, respectively and not a mortgage transaction / loan transaction / security transaction / nominal transaction as sought to be contended by the
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR plaintiff, who has clearly failed to establish the said contention which was rightly rejected by the Trial Court.
10. A perusal of the material on record will indicate that though the plaintiff contended that on 14.06.1965 itself when Ex.D1 and Ex.D2 were executed between the parties, the defendant executed one more Re-conveyance Agreement / Deed agreeing to re-convey the suit schedule property back to the plaintiff after receiving the total sum of Rs.7,000/- from him, the plaintiff did not produce the said document and the said contention was rightly rejected by the Trial Court. In addition thereto, the Sale Deed at Ex.D1 does not contain any stipulation / clause / covenant under which the defendant agreed to re-convey the suit schedule property back to the plaintiff as mandatorily required under Section 58(c) of the Transfer of Property Act, which reads as under:
Section 58(c) Mortgage by conditional sale - Where the mortgagor ostensibly sells the mortgaged property -
on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
1[Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.]
11. In the case of Prakash Vs. Aaradhya - 2023 SCC OnLine SC 1025, the Apex Court held as under:
"26. A perusal of the aforesaid proviso to sub-section
(c) of Section 58 of the 1882 Act provides that no transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. It is the undisputed case in hand that it was not a single document, the conditions contained wherein have to be considered by this Court to opine that the transaction was not a sale, but a mortgage. Admittedly, there are two separate documents.
27. Similar argument, where two separate documents were executed, came up for consideration before this Court in Bishwanath Prasad Singh's case (supra). One was the Sale Deed and the second was the agreement for sale.
Both were executed on the same date. It was opined therein that to appreciate a document its contents are to be read in entirety and the intention of the parties is to be gathered
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR from the language used therein. Para 16 of the aforesaid judgment is referred to for ready reference:
"16. A deed as is well known must be construed having regard to the language used therein. We have noticed hereinbefore that by reason of the said deed of sale, the right, title and interest of the respondents herein was conveyed absolutely in favour of the appellant. The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondents which was entered into by and between the parties. In fact, the recitals made in the sale deed categorically show that the respondents expressed their intention to convey the property to the appellant herein as they had incurred debts by taking loans from various other creditors."
28. Further, in the aforesaid judgment, this Court while interpreting the terms of the agreement executed along with the Sale Deed and opined that the same cannot be treated to be a mortgage as the expression used therein were 'vendor', 'vendee', 'sold' and 'consideration'. Fixed period was granted for execution of the Sale Deed."
12. A plain reading of the aforesaid provision and well settled legal position / principle in this regard clearly indicates that for a transaction construed / treated / considered as a mortgage by conditional sale, it is absolutely essential that the condition regarding re-conveyance must necessarily be inserted / incorporated in the Sale Deed for it to be treated as a mortgage by conditional sale and in the absence of any such recital / covenant / clause regarding re-conveyance in the Sale Deed at Ex.D1, the
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR Trial Court was fully justified in coming to the correct conclusion that the transactions / documents at Ex.D1 and Ex.D2 dated 14.06.1965 were out and out Sale Deed and Lease Deed, respectively and not a mortgage transaction / loan transaction / security transaction / nominal transaction as sought to be contended by the plaintiff, who has clearly failed to establish the said contention, which was rightly rejected by the Trial Court on this ground also.
13. A perusal of the material on record will also indicate that it is an undisputed fact that the defendant instituted a suit in O.S.No.2689/1973 before the Trial Court against the plaintiff for recovery of arrears of rent and other reliefs, which came to be decreed in favour of the defendant against the plaintiff vide judgment and decree dated 21.09.1976 and the Miscellaneous petition filed by the plaintiff herein was also dismissed by the Trial Court; in this regard, it is relevant to state that in the said suit the plaintiff herein specifically admitted that he had executed a registered Sale Deed dated 14.06.1965 for a consideration of Rs.7,000/- including earlier mortgage amount of Rs.4,000/- (vide mortgage dated 04.04.1963) and also that the defendant executed
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR an agreement agreeing to re-convey the suit schedule property back to the plaintiff herein and accordingly, he disputed the jural relationship of tenant and landlord between himself and the defendant herein. In view of this specific stance of the plaintiff herein (defendant in O.S.No.2689/1973), the Trial Court framed issue No.(1) as regards the jural relationship of landlord and tenant between the parties and answered the same in favour of the defendant herein (plaintiff in the said suit) and against the plaintiff herein (defendant in the said suit) and consequently, decreed the suit in favour of the defendant herein against the plaintiff herein as hereunder:
JUDGMENT Suit for recovery of arrears of rent for 3 years from
14.10.1970 till 13.1.1973 amounting to Rs.3150/- and notice charges of Rs.20/-.
2. The plaint allegations are briefly as follows: Plaintiff is the landlord in respect of the premises bearing No.39, situated in 6th Cross, Malleswaram and the Defendant is the tenant under him on a monthly rent of Rs.87.50 excluding electricity and water charges. The tenancy commences from 14th of every month. Defendant became due in a sum of Rs.3237=50 by way of arrears of rent for 37 months from 14.9.1970 till 13.10.1973. Defendant has not paid the said amount in spite of several demands made and
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR a legal notice was issued to him. Hence, this suit is for recovery of 3 years rent which are within time.
3. The defendant filed his written statement with the following contentions: There is no relationship of landlord and tenant between the plaintiff and this defendant. This defendant is not liable to pay any rent to the plaintiff. The plaint schedule property belongs to the defendant and he mortgaged the same in favour of the plaintiff and borrowed a sum of Rs.4000/- by executing a usufructory mortgage deed dated: 3.4.1963. On the same day he executed a lease deed for payment of Rs.50/- pm by way of rent in lieu of interest at 15% p.a. executed a registered sale deed Subsequently this defendant borrowed another sum of Rs.3000/- and executed a sale deed dated 14.6.1965 for a consideration of Rs.7000/- including the earlier mortgage amount of Rs.4000/- and agreed to pay Rs.87.50 by way of interest under another lease deed executed by him. On the same day plaintiff executed an agreement agreeing to reconvey the said property in favour of the defendant within a period of 3 years on the repayment of the loan amount of Rs.7000/-. Inspite of the said lease deeds executed by him the defendant has not parted with the possession of the suit property. So the defendant is not liable to pay any rents to the plaintiff. Defendant paid a sum of Rs.5000/- from his gratuity and provident amount after his retirement towards the discharge of the suit loan. This defendant has paid Rs.2025/- on 19.7.1968 towards the interest on the above transactions. This defendant's son-in-law Krishna Murthy was ready and willing to pay the balance amount. But the
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR plaintiff refused to execute the reconveyance deed in respect of the suit property. The suit is therefore liable to be dismissed with exemplary costs.
4. On the above pleadings the following issues have been framed;
1) Does the plaintiff prove the existence of the relationship of landlord and tenant between her and the defendant?
2) If so, does plaintiff prove that the defendant is due to her Rs.3150/- by way of arrears of rent for the period 14.10.1970 to 13.10.1973?
3) Does defendant prove that his transaction with the plaintiff and her son were in effect transaction of simple mortgage and the lease deeds executed by him in their favour were nominal and meant only to ensure regular and prompt payment of interest?
4) Does defendant prove payment of a total sum of Rs.5000/- to the plaintiff and her son towards alleged principal as contended in para 7 of the written statement?
5) Does defendant prove the alleged panchayat referred to in para 8 of the written statement?
6) Is this suit liable to be stayed under Section 10 CPC as contended in para 11 of the written statement?
7) Is plaintiff's suit false and vexatious so as to attract the provisions of Section 35-A CPC against her in the event of the dismissal?
8) To what relief or reliefs are the parties entitled?
5. ISSUES I to V: Plaintiff examined herself as PW1 and deposed that she purchased the plaint schedule premises from the defendant for consideration of Rs.7000/-
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR under a registered sale deed Ex-P1 executed by the defendant. She further stated that prior to the purchase of the said premises she advanced a loan of Rs.4000/- to the defendant under an usufructory mortgage deed executed by him. According to her the suit premises was sold to her subject to that mortgage. Even the defendant admitted in his written statement that he borrowed the said loan of Rs.4000/- under the usufructory mortgage deed executed by him and executed the sale deed in favour of the plaintiff subsequently for a consideration of Rs.7000/- by receiving the remaining amount of Rs.3000/-. Though it is contended by him that the plaintiff agreed to reconvey the said property to him within 3 years on repayment of the said amount of Rs.7000/- he did not produce the said agreement said to have been executed by the plaintiff to prove that fact. Even otherwise, admittedly defendant has not taken any steps to enforce the said agreement till now. Though it is contended by the defendant that he paid about Rs.5000/- from his gratuity and provident fund he did not produce any documentary evidence to prove that fact. Plaintiff denied in her evidence that the defendant paid the said amount to her so it is not possible for me to believe the said contention of the defendant. The further contention of the defendant that he executed the lease deeds only for payment of interest also cannot be accepted as there are clear recitals in Ex-P2 that the defendant has taken the said premises on lease agreeing to pay a monthly rent of Rs.87.50. The defendant has not produced any documentary evidence to show that the amount paid by him were received by the plaintiff
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR towards interest but not towards rent till the year 1970. So it is not possible for me to believe even the said contention of the defendant. I therefore find that there is relationship of landlord and tenant between plaintiff and the defendant. I accordingly answer Issue No.1.
6. The evidence of the plaintiff that defendant has not paid 3 years rent prior to the date of filing this suit has not been challenged in any manner by the defendant. Even in the written statement the defendant never stated that he paid any rent during the said period. On the other hand, according to him he paid Rs.2025/- on 19.7.1968, towards the interest on the above transaction. As it is now found that the defendant agreed to pay only rent but not interest, it is clear that he paid the rents only upto 19.7.1968. In the present suit plaint it claimed rent from 14.10.1970 till 13.10.1973. It is clear that defendant is due the said rent. I therefore answer Issue No.2 in the affirmative as it is admitted by the defendant in his written statement that he executed the usufructory mortgage deed in favour of the plaintiff. I answer Issue No.4 in the negative for the above reasons given by me in the above discussions. Defendant has not adduced any evidence to prove his contention that a panchayat was held and that plaintiff admitted that she received Rs.7000/- from him as claimed by him. So, I am unable to believe the said contention of him. I therefore answer issue No.5 in the negative.
7. ISSUE No.VII: In view of my findings given above I find on issue No.7 that the present suit is not a false or
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR vexatious suit and that the plaintiff is not liable to pay any compensatory costs.
8. ISSUE No.VI: This issue was decided by me as a preliminary issue and it was held by me that the present suit is not liable to be stayed.
9. Though plaintiff claimed notice charges of Rs.20/-, she is not entitled to claim the said charges, as there is no agreement between the parties to pay any notice charges.
10. In the result, the suit is decreed for Rs.3150/- with proportionate costs and current interest at 6% p.a. on the said amount from the date of suit till realization.
14. The said judgment and decree passed by the Trial Court in O.S.No.2689/1973 in respect of the very same suit schedule immovable property in favour of the defendant herein against the plaintiff herein has attained finality and become conclusive and binding upon the plaintiff herein, whose claim that he was only a mortgagor under the defendant - mortgagee and not a tenant under her in respect of the suit schedule immovable property is clearly barred by the principles of res-judicata, which is yet another circumstance, which was relied upon by the Trial Court to correctly non-suit the plaintiff by passing the impugned judgment and decree, which deserves to be confirmed on this ground also.
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15. The plaintiff has also contended that initially the plaintiff had mortgage the suit schedule property in favour of the defendant on 04.04.1963 vide Ex.P29 and the said mortgage continued vide Ex.D1 dated 14.06.1965; in this context, it is needless to state that apart from the fact that the Sale Deed at Ex.D1 dated 14.06.1965 clearly superseded and overrides the earlier mortgage deed at Ex.P29 dated 04.04.1963, the mortgage created under Ex.P29 stood clearly extinguished and the mortgage created thereunder stood statutorily redeemed by act of parties, who executed the Sale Deed at Ex.D1 dated 14.06.1965 as contemplated by the proviso to Section 60 of the Transfer of Property Act. It follows therefrom that by virtue of the Sale Deed dated 14.06.1965 at Ex.D1 executed by the plaintiff in favour of the defendant, the earlier mortgage vide Ex.P29 dated 04.04.1963 ceased to subsist any longer and the same stood redeemed and extinguished and did not exist any longer and consequently, the contention of the plaintiff that he continued to be a mortgagor and that the defendant was a mortgagee in respect of the suit schedule property was rightly rejected by the Trial Court on this score also.
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16. A perusal of the impugned judgment and decree will indicate that the Trial Court has correctly and properly considered and appreciated the pleadings and evidence on record and has come to the correct conclusion by rejecting the claim of the plaintiff and upholding the defence of the defendant by holding as under:
13. It is the specific case of the deceased plaintiff L.Gangaram Prasad, who has filed this suit against 1st defendant (deceased) Smt. Achamma for the relief of execution of re-conveyance deed in his favour or in alternative redemption of mortgage alleging that the deed executed by deceased plaintiff in favour of deceased 1st defendant dated 14.6.1965 though styled as sale deed, but it is only a nominal document executed for the security of the loan as insisted by 1st defendant Smt.Achamma, wherein deceased plaintiff had obtained loan of Rs.4,000/-
from deceased 1st defendant on 4.4.1963 through the intervention of the co-worker of deceased plaintiff namely M.V.Subba Rao, who was also postal employee working in market post office along with deceased plaintiff, who was sister's son of 1st defendant through his intervention, the plaintiff obtained Rs.4,000/- as loan in order to discharge the outstanding loan obtained by the plaintiff from Chickpet House Building Co-operative Society and thereafter, the plaintiff intended to perform the marriage of his only daughter namely Smt. Nagu Bai and her marriage was fixed on 19.6.1965 and again plaintiff was in dire need of finance to perform her marriage and again approached the
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR 1st defendant for loan sum of Rs.3,000/- as loan subject to deceased plaintiff execute a sale deed for the security of the loan and the said document has to be a nominal document by creating simple mortgage of the schedule property and accordingly, deceased plaintiff executed document styled as sale deed and as such, the possession was not handed over though sale deed was registered on 14.6.1965, wherein plaintiff had retained possession and also paying tax to the said property and deceased plaintiff residing along with his family and hence, it is the specific contention of the deceased plaintiff that the alleged transaction sale deed dated 14.6.1965 is one a mortgage transaction subject to redemption after repayment of loan and it is also case of the plaintiff that he agreed to pay interest on Rs.4,000/- loan availed by him at Rs.50/- per month and thereafter obtaining further loan amount of R.3,000/-, wherein the interest rate payable was Rs.87.50 ps and he has paid interest amount of Rs.2,025/- and further alleges that he has made further payment of Rs2000/- received from GPF amount on his retirement from his service during 1974. As such it also the case of the plaintiff that he had paid interest per month at Rs.50/- from 4.4.1963 to 14.6.1965 and at the rate of Rs.87.50ps from 14.6.1965 and it is the case of the deceased plaintiff that the deceased defendant executed reconveyance agreement on 14.6.1965 and as per the terms of agreement time stipulated is 3 years, but upon the request of the plaintiff time was extended for two more years later on the deceased defendant executed an agreement before
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR the panchayath conveyed on 3.8.1971 agreeing to receive the amount of Rs.7,000/- from deceased plaintiff and to execute re-conveyance deed and deceased 1st defendant admitted payment of Rs.5,000/- from the plaintiff in earlier occasion out of Rs.7,000/- on 3.8.1971. The plaintiff requested the defendant to execute re-conveyance deed but she did not execute the same and did not redeem the mortgage also.
14. The deceased 1st defendant specifically denied that the sale deed executed on 14.6.1965 is a mortgage transaction without possession towards security for the loan executed by the plaintiff and 1st defendant specifically contended that the sale deed dated 14.6.1965 is out right sale of schedule property in her favour for Rs.7,000/- sale consideration agreed between herself and deceased plaintiff and 1st defendant relied upon HRC proceedings initiated by her and also relied upon the suit filed by her for recovery of rents for 3 years and filing of suit before the Court of Small Causes and also suit filed before the City Civil Court in O.S. No.2689/1973 for recovery of arrears of rent of Rs.3,150/- on the file of First Munsiff Court, Bangalore and the said suit came to be decreed, wherein deceased plaintiff had filed written statement on 28.6.1974 and suit was decreed on 21.9.1976 and deceased 1st defendant also contended that deceased plaintiff had approached the Tahasildar and filed petition under Sec. 4(i) Karnataka Debt Relief Act 1974 alleging that there was relationship of debtor and creditor between himself and 1st defendant and in the said
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR proceedings initiated before Tahasildar it was held in favour of deceased plaintiff holding that it was a loan transaction and thereafter being aggrieved by the said order, deceased 1st defendant had preferred writ petition in W.P.No.5482/1970, wherein the said writ petition came to be allowed and matter was remanded to the Tahasildar for deciding the issue once again and again the Tahasildar held that it was case of mortgage and loan transaction and thereafter, 1st defendant again filed writ petition in W.P.No.11867/1984, wherein Hon'ble High Court decided that sale deed dated 14.6.1965 is not conditional sale or mortgage deed, but it is out right sale transaction in respect of schedule property by deceased plaintiff. Deceased plaintiff had filed writ appeal in W.A.No.2478/1986, wherein the Hon'ble High Court held that there is no relationship of creditor and debtor between deceased plaintiff and deceased 1st defendant Smt. Achamma and thereafter the deceased plaintiff had preferred SLP before Hon'ble Apex Court by filing SLP No.13634/1990 wherein the said SLP came to be dismissed. The deceased 1st defendant denied the execution of the alleged receipt dated 3.8.1971 for execution of sale deed after discharge of loan amount of Rs.7,000/- in favour of plaintiff and also 1st defendant denied receipt of Rs.5,000/and on the contrary, 1st defendant relied upon the HRC proceedings initiated by her and decree passed in HRC proceedings and a decree passed in O.S. No.2689/1973 for recovery of rent, wherein the deceased plaintiff had deposited arrears of rent by
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR depositing amount in HRC No.8722/1980 and there was also application filed by the deceased plaintiff under Sec. 29 of KRC Act denying the relationship of landlord and tenant, but after disposal of the said application and HRC proceedings, wherein the HRC court held that there exists relationship between landlady and tenant between the deceased plaintiff and deceased 1st defendant Smt. Achamma ie., 1st defendant died on 26.6.1993 leaving behind her LRs, who have come on record as LRs 1(a) to 1(d) and LR 1(a) and (b) have filed additional written statement denying the case of the plaintiff and also they have adopted the written statement filed by their mother Smt. Achamma and subsequently defendant No.2 has been impleaded and defendant No.2 claims to be a legatee under the "Will" executed by deceased 1st defendant Smt. Achamma in his favour and also in favour of LR D.1(a) in respect of the open site under "Will" dated 24.7.1986 by deceased Smt.Achamma. Defendant no 3 after remand of the matter has not led evidence.
15. This court disposed off the said suit after recording the evidence of both the parties, wherein plaintiff and defendant side evidence was recorded and plaintiff died on 9.7.1991 and his only daughter Smt. Nagu Bai, who came on record as his LR and continued the suit, wherein plaintiff side evidence was recorded. Plaintiff got examined herself, her husband and attesting witnesses on agreement dated 3.8.1971 and also examined the Tahasildar as P.W.1 and got marked Ex.P.1 to P.36 and closed her side and thereafter defendant No.2 was
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR examined as D.W.1 and defendant No.1(a), who also claims to be the legatee under the "Will" dated 24.7.1986 was examined as D.W.2 and got marked Ex.D.1 to D.9 and closed defendant's evidence. My learned predecessor at office after concluding the evidence by both the parties and after hearing the arguments of both the sides and on appreciation of oral and documentary evidence rendered judgment in the above suit on 16.4.2002, wherein the suit filed by the plaintiff came to be dismissed by judgment and decree dated 16.4.2002. Before filing of this suit, the deceased plaintiff had filed application under KDR Act before the Asst., Commissioner and in the said proceedings, it was held that the transaction between plaintiff and 1st defendant Smt.Achamma was debt transaction, wherein against order of learned Asst., Commissioner, 1st defendant had filed a writ petition in the W.P.No.5482/1977. The Tahasildar has decided the matter in favour of plaintiff after remand and thereafter, again 1st defendant filed writ petition, it was allowed and against that order, plaintiff had filed writ appeal in No.2478/1986 wherein the Hon'ble High Court held that it was out right sale and not mortgage or loan transaction and thereafter, deceased plaintiff being aggrieved by the order in the writ appeal had approached the Supreme Court of India by filing SLP No.13664/1990 and said SLP No.13664/1990 was dismissed leaving the parties "to settle the scores in an appropriate forum". After dismissal of this suit, plaintiff's LR Smt. Nagu Bai preferred RFA No.851/2002 before Hon'ble High Court and challenged the dismissal of O.S.
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR No.2107/2002 dated 16.4.2002 by preferring 1st appeal and also she preferred HRRP in No.671/2004 against defendant No.2, wherein the Hon'ble High Court after clubbing RFA No.851/2002 C/W HRRP No.671/2004 disposed off the 1st appeal and this HRRP, wherein the Hon'ble High Court allowed the 1st appeal and set aside the judgment and decree passed by this court dated 16.4.2002 and remanded the matter for denova enquiry, thereby remanded the suit.
16. Therefore plaintiff has to prove his case independently with cogent evidence . At this juncture, I would like to refer a decision reported in 2004(1) KCCR 662 between K.Gopala Reddy (deceased) by Lrs Vs. Suryanarayana and others wherein our Hon'ble High Court has held that "whenever a party approaches the court for a relief, based on pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party, who approaches the court. Weakness of the defendant cannot be considered as a trump card for the plaintiff."
17. In order to prove the case of the plaintiff after remand of the case, LR of the plaintiff was examined as P.W.2, has filed her affidavit evidence as further evidence by way of examination-in-chief and also subjected to cross- examination. After closure of evidence, while at the time of defendant arguments being heard, P.W.2 died and her L.Rs were brought on record. At this juncture it is relevant to refer some of the statement made during the course of
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR cross examination of P.W.2 who has depose that her marriage was took place on 19.6.1965 and her father had no money at that time, therefore her father again approached 1st defendant for further loan of Rs.3,000/- to perform her marriage and accordingly, 1st defendant advanced loan amount of Rs.3,000/- to her father and as such, 1st defendant had totally advanced loan a sum of Rs.7,000/-, wherein monthly interest was payable was Rs.87.50 ps per month. LR of the plaintiff examined P.W.1, who was working as a Tahasildar namely B.R.Ramachandrappa and this witness was examined in order to prove that they have produced original agreement dated 3.8.1971 ie., EXP 24 in KDR application before Tahasildar and the said file was sent to Hon'ble High Court and as such, plaintiff relied upon this certified copy of receipt dated 3.7.1971 marked at Ex.P.24, which is secondary evidence . P.W.1, the then Tahasildar, Bangalore North Taluk has deposed before the court stating that he has appeared in the suit by receiving witness summons, wherein P.W.1 stated that he was directed to produce certain documents in DRA No.180/76- 77 and though he searched for the said records in his office through his assistant, but the said records could not be traced out and P.W.1 stated that entire records were consized to High court and hence, by examining P.W.1, the plaintiff made efforts to prove that original file in which the original receipt was sent along with original records and as such, they have produced certified copy of the said receipt Ex.P.24 in this case.
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18. At this juncture it is relevant to refer some of the statement made by PW2 during her course of cross examination, wherein P.W.2 deposed that 1st defendant had executed re-conveyance deed in favour of her father and in the said document, it was recited that deceased plaintiff to pay Rs.7,000/- within 3 years and 1st defendant to execute original re-conveyance deed and hence, P.W.2 made reference of payment of interest by her father in the year 1965 and also depose that her father made payment of further amount after he had received retirement benefit and hence, P.W.2 deposed that her father had cleared off Rs.5,000/- towards loan amount and balance remains Rs.2,000/- and P.W.2 stated that 1st defendant executed receipt for having received Rs.5,000/- from the plaintiff and P.W.2 relied upon Ex.P.24, the certified copy of receipt and alleged that as it was executed by the 1st defendant in the presence of herself, 1st defendant, her sons and another Subbarao witnesses namely Puttaswamy, Mani, Ramachandrappa and others and accordingly, P.W.2 stated that she was having amount ready with her of Rs.2,000/- for payment of interest . P.W.2 further on confrontation admits another document dated 14.6.1965 lease deed executed by her father and she also admits the signature of her father on Ex.D.2, which are marked at Ex.D.2(a) to (c) and she admits that her father had executed this lease deed for 11 months and after expiry of 11 months, her father had agreed to vacate the premises. In Ex.D 2, there is no mention about payment regarding interest and she admits that her father as per Ex.D.2 had
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR paid regularly rent to 1st defendant P.W.2 further depose that on 14.6.1965, the defendant executed agreement in favour of her father to reconvey property within 3 years if Rs.7,000/- amount is repaid to the 1st defendant within 3 years time P.W.2 further depose that her father had paid Rs.2025/-, but she has not produced any receipts for the said payment made by her father and even P.W.2 do not remember the date of alleged payment of Rs.2,025/- and P.W.2 depose that her father sought extension of 2 years time and accordingly, time was extended and within two years extended period, her father had paid Rs.2,000/- to the defendant, but she do not remember the date and month of payment of Rs.2,000/- to defendant No.1 but she do not remember the house number where her father had paid amount of Rs.2,000/- to 1st defendant. P.W.2 further depose that she do not remember whether there is any document to show that in the month of September 1970 her father retired from services and P.W.2 admits that she has not produced any documents to show that her father had received amount of Rs.2,000/- towards retirement benefits and also regarding Rs.2,000/- received by her father as gratuity and provident fund and she expressed ignorance as to the suit filed by the 1st defendant in O.S. No.2689/1973 for arrears of rent on the file of 1st Munsiff court, Bangalore and also regarding her father contested the suit by filing written statement on 28.6.1974 and express ignorance that suit came to be decreed on 21.9.1976 and she expressed ignorance as to whether her father did not give evidence in that case and
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR whether her late father had filed any case for setting aside judgment and decree passed in O.S. No.2689/1973. P.W.2 further deposed that her father had issued cheque drawn on Syndicate Bank, Magadi Road, branch, Bangalore, but she do not know the account number and even she do not know whether any passbook issued to her father and P.W.2 do not know the date of cheque, but stated that it was a cheque of Syndicate bank and She depose that the original of Ex.P.24 was written in Cottonpet, volunteers that it was written in the house of defendant's elder sister, but she expressed ignorance as to the house number and also the street . P.W.2 stated that prior to execution of agreement dated 3.8.1971, sale negotiations were held at Mavalli Circle house and she do not know the number of that house so also street, wherein one Ramachandra was the scribe of Ex.P.24 and defendant's sister son one Subbarao instructed to write Ex.P.24 and P.W.2 deposed that one Ramachandra Rao, brother-in-law of 1st defendant, who had brought witness namely Mani, Puttaswamy and P.Ramachandrappa and P.W.2 admits that she has not signed original of Ex.P.24 so also her husband has not signed it and even Subba Rao son of 1st defendant has not signed Ex.P.24 . She expressed her ignorance whether 1st defendant had filed a case before Small Cause court in O.S. No.8443/1980 for recovery of rent of Rs.3,150/- due from 14.7.1976 to 13.8.1979 and P.W.2 expressed her ignorance that the said suit came to be decreed and her father did not pay decretal amount and she admit that her father has filed
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR written statement denying the relationship of landlady and tenant and contending that there was relationship of debtor and creditor and she expressed her ignorance that 1st defendant had filed HRC case in HRC No.8722/1986 against her father and in that case, court has held that there exists relationship of landlady and tenant and not debtor and creditor . She also expressed her ignorance whether present defendant No.1 had filed interim application under Sec. 29 of KRC Act and court has ordered holding that there exists relationship of landlady and tenant and directed her father to pay a sum of Rs.9,712.50 towards arrears of rent and she do not remember whether her father had deposited the said amount in the HRC proceedings. P.W.2 during the course of her cross-examination in page No.7 admits her signature and also her mother signature on sale deed dated 14.6.1965 at Ex.D.1 and also admits the signature of original plaintiff i.e., her father at Ex.D.1(c) in sale deed dated 14.6.1965 and admits on 19.6.1965 her marriage took at Bengaluru. PW.2 also admits that her father had no money to arrange for her marriage and also admits that at the time of her marriage, her father had no money to discharge the mortgage and to arrange money for her marriage and also categorically admits that at the time of Ex.D.1 sale deed the defendant adjusted Rs.4,000/- mortgage money towards sale consideration and paid remaining amount of Rs.3,000/- to her father i.e., plaintiff in presence of Sub Registrar. Accordingly the defendant paid Rs.7,000/- to her father and also admits that on the
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR date of sale deed there was no other encumbrance to the suit property and also admits that in Ex.D.1 there is mention that wife and daughter of the executants have signed the documents and it was marked as Ex.D.1(f) and also admits that in Ex.D.1 there is no mention about mortgage and also admits that her father has signed on Ex.D.2 and said signature was marked as Ex.D.2(a)(b) and (c) and also categorically admits that Ex.D.2 is lease deed executed by her father in favour of the defendant for 11 months and also admits that there may be mention in Ex.D.2 that after expiry of 11 months her father agreed to vacate the premises. In Ex.D.2 there is no mention regarding payment of interest and categorically admits that as per Ex.D.2 her father regularly paid the rent to the defendant and also admits that her father was paying the tax deducting the interest as per the direction of the deceased defendant.
19. PW.3 during the course of cross-examination admits that on 4.4.1963 plaintiff borrowed Rs.4,000/- from the defendant and mortgaged the suit property to the defendant with possession and also admits that he has heard that for some period he paid monthly rent to the defendant and expressed his ignorance that except mortgage deed dated 4.4.1963 whether there are any other documents to show the loan transaction between the plaintiff and the defendant. Pw3 also admits that plaintiff had executed a possessary mortgage on 4.4.1963 in favour of the defendant . PW3 also admits that Plaintiff had executed sale deed at Ex.D.1 in favour of the defendant.
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR Plaintiff signed on all pages of Ex.D.1 and also categorically admits that plaintiff had no money to discharge the loan of Rs.4,000/- and to arrange marriage, he executed Ex.D.1. At Ex.D.1(a) and (b), wife and daughter of the plaintiff have signed the said document. PW3 also admits that in Ex.D.1 there is no mention that it has been executed for security of the loan. The consideration shown in Ex.D.1 includes the loan of Rs.4,000/- and admits that the houses for rent were not available at that time and plaintiff executed lease deed in favour of the defendant on 14.6.1965 on monthly rental of Rs.87-50. PW.3 admits that the plaintiff has executed lease deed in favour of the defendant at Ex.D.2 and also admits that as per Ex.D.2 the plaintiff was in possession of the property. P.W.3 admits that within 3 years from 14.6.1965 if plaintiff pay Rs.7,000/- to the defendant, the defendant to execute sale deed in favour of the plaintiff. Accordingly as per agreement, within 3 years, plaintiff did not get the sale deed and also admits that at the request of the plaintiff 2 years time was extended. P.W.3 admits that an amount of Rs.2025/- paid on 19.5.1968 by the plaintiff to the defendant was towards arrears of rent and also categorically admits that within extended period of 2 years, plaintiff did not get the sale deed and also admits that there is no documents to show that an amount of Rs.2,000/- was paid by the plaintiff to the defendant and also admits that he has not produced any documents to show that in the month of February 1974, plaintiff received an amount of Rs.3,000/- and also admits that he has no documents to
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR show that he was present at the time of panchayath on 3.8.1971 and also admits that he has not signed on the original receipt at Ex.P.24 and also admits that his wife i.e., P.W.2 has not signed on Ex.P.24 and also admits that Ramachandra Rao also not singed on Ex.D.2 and also admits that he has no documents to show that original receipt at Ex.P.24 was produced before Assistant Commissioner in DRA proceedings. Shanbogh, Ramachandra Rao gave instructions to draft the original of Ex.P. 24. Plaintiff and defendant did not give instructions to scribe the draft of original of Ex.P.24. PW.3 admits that to perform the marriage of plaintiff 's daughter the plaintiff has executed sale deed dated 14.6.1965 in favour of defendant and Rs.4,000/money lent on the mortgage deed on 4.6.1963 was adjusted towards the total consideration of Rs.7,000/-.
20. The categorical admissions made by P.W.2 and 3 clearly shows that the deceased plaintiff has sold the suit schedule property to perform his daughter's marriage . It is an admitted fact that the mortgage deed was executed by the plaintiff in favour of the defendant in respect of the suit schedule property on 4.4.1963. On careful examination of Ex.D.1 sale deed dated 14.6.1965 at Ex.D.1 there is no mention that the said sale deed is a security for the loan transaction. Though deceased plaintiff alleges that for the loan amount, they have to pay15% monthly interest on the principal amount. Therefore Rs.2025/- was paid to the deceased defendant during the year 1968 as an interest, but the admission of
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR P.W.3 clearly shows that the said amount of Rs.2,025/- made by the plaintiff during the year 1968 towards the rent and not towards the interest. Though sale deed was executed on 14.6.1965, but for the non availability of houses, the plaintiff also executed a lease agreement on same date of sale deed in respect of schedule property to the defendant and continued in possession as a tenant. PW.3 who is none other than son-in-law of deceased plaintiff who categorically admits that as per Ex.D.2 lease agreement, the plaintiff was in possession of the suit schedule property. After execution of sale deed on 14.6.1965, the question of paying interest to the loan does not arise at all. After execution of sale deed on 14.6.1965, the plaintiff continues in possession of suit schedule property on the strength of lease agreement at Ex.D.2 having executed by him in respect of suit schedule property to the deceased defendant.
21. On careful examination of sale deed Ex.D.1 dated 14.6.1965 there is a recital that on 4.4.1963 the suit schedule property was mortgaged by deceased plaintiff in favour of deceased defendant by taking a sum of Rs.4,000/- as loan and the deceased plaintiff was unable to pay the mortgage amount and to meet the expenses of his daughter's marriage he was intended to sell the suit schedule property in favour of the defendant. The admissions during the course of cross-examination of P.W.2 and 3 shows that the deceased plaintiff was intended to sell the suit schedule property in favour of the defendant to perform his daughter's marriage i.e., P.W.2.
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR There is also recital in Ex.D.1 that including Rs.4,000/- amount received under the mortgage deed and the balance sale consideration of Rs.3,000/- was received by the deceased plaintiff before the Sub Registrar at the time of registration of the sale deed. P.W.2 also clearly admits that her father deceased plaintiff has received balance sale consideration amount before Sub Registrar at the time of registration of the sale deed and with respect to possession also, there is a recital that possession of the suit schedule property was delivered to the deceased defendant on the date of registration of sale deed at Ex.D.1. The oral and documentary testimony adduced by the plaintiff clearly shows that Ex.D.1 sale deed dated 14.6.1965 was not a nominal sale deed, but it was executed with an intention to transfer the right, title and interest over the suit schedule property in favour of deceased defendant. When deceased plaintiff himself executed a registered sale deed on 14.6.1965, the previous mortgage deed dated 4.4.1963 executed by him automatically stands neutralized and it will become unenforceable. In other words, when the sale deed was executed in favour of the mortgagee the owners of the property looses entire right over the suit schedule property and consequently his right of redemption will get extinguished . Therefore the plaintiff is not entitled for the relief of redemption of mortgage deed dated 4.4.1963.
22. The plaintiff has sought for specific performance based on the agreement of re-conveyance. Though the plaintiff claim relief of specific performance
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR based on the agreement of re-conveyance dated 14.6.1965, but plaintiff has not at all produced the re- conveyance agreement dated 14.6.1965 before the court. The deceased defendant in his written statement admits agreement of re-conveyance on 14.6.1965, but it is the contention of the defendant that in the agreement of re- conveyance, there is a time stipulation for a period of 3 years from the date of agreement of re-conveyance. Therefore if plaintiff pays Rs.7,000/- on or before 13.6.1965, the defendant has to execute sale deed in favour of the plaintiff, but on the request of the plaintiff , the time was further extended for 2 years. Such being the case, the plaintiff has to pay Rs.7,000/as sale consideration on or before 13.6.1970 to get the sale deed from the deceased defendant. But there is no evidence to show that before 13.6.1970, the plaintiff has requested the deceased defendant to get the re-conveyance deed by paying consideration amount. The deceased plaintiff also alleges that he has paid Rs.2,025/- on 19.5.1968 towards the interest in respect of the loan transaction and upon his retirement, he received Rs.2,000/- and immediately paid the said amount to the defendant during the year 1970 towards principal amount and thereafter out of GPF amount, the plaintiff has paid Rs.2,000/- on 28.2.1971, but there is no documentary evidence produced by LR of the plaintiff in support of this contention . Though deceased plaintiff has stated that suit schedule property is an ancestral property, but P.W.2 in her evidence affidavit clearly admits that suit schedule property is self acquired
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR property of her father. PW2 also categorically admits that in Ex.D.1 it is not mentioned that sale deed has been executed as security for loan and it is also not mentioned in the sale deed that it is a mortgage deed and P.W.2 also further admits that in Ex.D.1 there is mention what requires to be mentioned in sale deed and in number of places at Ex.D.1 it is mentioned as "Shudda Kraya Pathra" . PW.2 admits her father had signed Ex.D.2 and said signatures were marked as Ex.D.2 (a)(b) and (c) and also admits that in Ex.D.2 there is no mention regarding payment of interest and also admits that she has not produced any receipts for payment of Rs.2,025/to the defendant by her father and she admits that she has not signed receipt at Ex.P.24 and she categorically admits that her father was paying tax deducting the interest as per the directions of deceased defendant. PW.3 expressed his ignorance that except the mortgage deed dated 4.4.1963 whether there are any other documents to show the loan transaction between the plaintiff and the defendant and also admits that plaintiff had no money to discharge the loan of Rs.4,000/- and to arrange marriage therefore he has executed Ex.D.1 and also admits that the wife and daughter of plaintiff have signed Ex.D.1 and there is no mention in Ex.D1 that sale deed has been executed for security of loan and consideration shown in Ex.D.1 includes the loan of Rs.4,000/- and as per Ex.D.2 plaintiff was in possession of suit property and Pw3 also admits that amount of Rs.2,025/- paid on 19.8.1968 by the plaintiff to the defendant was towards the arrears of rent and also admits
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR that there is no documents to show that plaintiff has paid Rs.2,000/- to the defendant. PW.2 and P.W. 3 admits that they have no document to show that in the month of September 1970 plaintiff received retirement benefit of Rs.2,000/- . PW3 admits that Sri.Ramachandra Rao has not signed the receipt on 3.8.1971 and he also admits that there is no documents to show that he was present at the time of panchayath on 3.8.1971 but on the contrary he deposed that he had actually seen signing of original receipt at Ex.P.24 by the defendant and PW.3 admits that defendant had filed HRC No.2562/1997 on the ground of arrears of rent amounting to Rs.7,175/- and as per the order of the court he has deposited arrears of rent amounting to Rs.7,175/-. Though it is the contention of the plaintiff that the rent mentioned in Ex.D.2 represent interest, but as per the admission of P.W.2 and 3 deceased plaintiff had paid monthly rent to the deceased defendant . More over P.W. 3 categorically admits because of possessary mortgage and lease deed, possession of the suit schedule property remained with the deceased plaintiff and plaintiff had no money to discharge the mortgage and to arrange the marriage of his daughter, he has sold the suit schedule property to the deceased defendant . In order to prove that transaction between plaintiff and defendant was loan and not sale hence interest was paid by the deceased plaintiff, no documents were produced before the court. Payment of rents by the deceased plaintiff to the deceased defendant was admitted by P.W.2 and 3. In written statement the defendant has admitted payment
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR of Rs.2,025/- by the plaintiff but it is the specific contention of the defendant that the said amount is rent and not interest. It is also an admitted fact that deceased defendant has filed O.S.No.2689/1973 was filed for arrears of rent for a period of 3 years and said O.S.No. 2689/1973 was decreed . PW.3 also admits that he has deposited arrears of rent as per the court order. Such being the case contention of the plaintiff that the rent mentioned in Ex.D.2 represent as interest and the deceased plaintiff was paying interest cannot be accepted at all.
23.With respect to possession of plaintiff over suit schedule property is on the basis of Ex.D.2 lease agreement executed on the same date of sale deed. PW.3 also admitted that at the time of sale deed at Ex.D.1 plaintiff had no alternative accommodation and house was not available for rent. Hence, Ex.D.2 was executed. While ascertaining the document the intention of the parties as well as circumstances has to be verified . On careful examination of Ex.D.1 the terms clearly shows that Ex.D.1 is absolute sale deed . There is no condition in Ex.D.1 that the suit schedule property should be re-conveyed. Therefore it cannot be held that sale deed at Ex.D.1 is a mortgage deed. P.W.2 and 3 categorically admits that it is not mentioned in sale deed at Ex.D.1 that the said document is a security towards the loan. The right, title and interest was transferred to the deceased defendant through registered sale deed dated 14.6.1965 by the plaintiff . If right, title interest was not transferred to the defendant through registered sale deed dated 14.6.1965
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR there is no question of plaintiff executing lease deed at Ex.D.2 on 14.6.1965 in respect of suit schedule property for monthly tenancy. With respect to payment of rents by the deceased plaintiff P.W.2 clearly admitted that her father was paying rents to the deceased defendant . If at all Ex.D.1 is a nominal sale deed then the question of executing lease agreement by deceased plaintiff in favour of deceased defendant in respect of suit schedule property and paying rents does not arise at all. There is no document on record to show that the deceased plaintiff was paying interest to the deceased defendant after executing sale deed dated 14.6.1965 at Ex.D.1. Plaintiff has transferred all rights, title and interest over the suit schedule property in favour of deceased defendant. It is also the specific contention of the plaintiff that on the date of Ex.D.1 the market value of the suit schedule property was Rs.25,000/but consideration amount mentioned in Ex.D.1 is Rs.7,000/- . P.W. 2 has produced certified copy of sale deed at Ex.P.28 the adjacent site of suit schedule property measuring 15X30 ft., which was sold for a sale consideration of Rs.5,000/-. As per Ex.D.1 sale deed the sale consideration amount is Rs.7,000/and suit schedule property measuring 30 X 60 ft., and house had been constructed in the suit schedule property . Few years earlier to Ex.D.1 sale deed the suit schedule property had been purchased by the plaintiff but P.W.2 has not disclosed the amount of sale consideration for having purchased the schedule property prior to Ex.D.1. More over except the statements of P.W. 2 and 3 with respect to
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR market value of the schedule property there is no other evidence to substantiate their contention . Under such circumstances the evidence of P.W.2 and 3 is not sufficient to hold that the market value as on the date of sale deed at Ex.D.1 was Rs.25,000/- hence, it cannot be held that the market value shown in Ex.D.1 is not proper.
24. Learned counsel for plaintiff has relied upon the following decisions reported in (1).Tamboli Ramanlal Motilal (dead) by Lrs Vs.Ghanchi Chimanlal Keshvlal (dead) by Lrs and another AIR 1992 SC 1236, (2). Chunchun Jga Vs. Ebadat Ali and another AIR 1954 SC 345, (3).Bhaskar Waman Joshi (deceased ) and others Vs. Shrinarayan Rambilas Agarwal (deceased) and others AIR 1960 SC 301, (4). Umabai and another Vs. Nilkanth Dhondiba Chavan(dead) by Lrs and another (2005) 6 SCC 243,(5).Bapuswami Vs. N.Pattay Gounder AIR 1966 SC
902. Perused the aforesaid decisions the facts and circumstances of the present case is different from the facts and circumstances of the aforesaid decisions.
25. It is also the case of the plaintiff that on 3.8.1971 there was a panchayath held between the deceased plaintiff and deceased defendant wherein the deceased defendant had agreed to re-convey the suit schedule property through registered deed on payment of balance consideration amount of Rs.2,000/-. Plaintiff has produced certified copy of receipt dated 3.8.1971, but defendant has seriously disputed the certified copy of receipt dated 3.8.1971. PW.2 alleges that the deceased
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR defendant has executed receipt on 3.8.1971 agreeing to execute re-conveyance deed in favour of the plaintiff after furnishing accounts . But on careful examination of Ex.P.24, it clearly shows that there is no signature of deceased defendant, but it was only mentioned as "sd" and there is no signature of the witness, but only the names of the witnesses were mentioned in Ex.P.24. In order to establish that the deceased defendant has executed a receipt on 3.8.1971 the LR of the plaintiff has made an efforts to examine the witnesses as PW.4 and PW.5. At this juncture, it is relevant to refer the statements made by P.W.4 and 5 during the course of cross examination , wherein P.W.4 admits that he had no occasion to talk with 1st defendant and he had occasioned to see her only at the time of panchayath and he was unable to recollect the date of panchayath. PW.4 also admits that prior or subsequent to the panchayath he had not seen the deceased defendant and he also deposed that after he came to the court to depose in this case he saw P.W.2 and he does not know the husband of P.W.2 i.e., P.W.3. Before and after panchayath, he has not seen the deceased plaintiff and personally he does not know him and he depose that he does not know anything about the suit properties and he was unable to say on what time, the panchayath commenced and concluded and he also deposed that nobody had informed him about the panchayath and he also deposed that none have seen that he had participated in the panchayath and he also deposed that he has not seen the agreement dated 14.6.1965 and
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR 3.8.1971. He also deposed that he had no occasion to see the signature of the 1st defendant in his life time and 1st defendant had no occasion to sign in his presence and he also deposed that he does not know R.Ramachandrappa and he also deposed that he does not know the contents of original of Ex.P.24 and he also deposed that as elderly person, he did not talk on 3.8.1971 and none acted as elderly person on that day and voluntaries that they themselves have resolved. The admission made by P.W.4 clearly shows that he does not know the contents of Ex.P.24 i.e., receipt dated 3.8.1971 . The admission made by P.W.4 creates a doubt about his presence in panchayath alleged to be held on 3.8.1971. PW.3 in his evidence deposed that plaintiff and defendant did not give instructions to scribe to write the receipt at Ex.P.24. P.W.4 deposed that none acted as elderly persons on the date of panchayath and the parties have resolved. Such being the case, the presence of the P.W.4 as a witness to sign the alleged receipt on 3.8.1971 at Ex.P.24 is not believable at all. The over all evidence of P.W.4 does not inspire the confidence of the court.
26. PW.5 in his cross-examination deposed that he never spoke with defendant except on that day and further depose that he do not know he spoke with deceased defendant on that day and he had no personal acquaintance with the deceased defendant and also further deposed that P.W.3 and deceased plaintiff took him to the panchayath. Though LR of the plaintiff has made an efforts examine P.W.4 and 5 witnesses to the alleged
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR receipt at Ex.P.24, but the evidence of P.W.2 and 3 and 4 and 5 are contradictory. Therefore the evidence of P.W.1 to 5 does not inspire the confidence of the court with respect to execution of receipt on 3.8.1971. Such being the case, plaintiff fails to prove the execution of receipt dated 3.8.1971 by the deceased defendant agreeing to re- convey the suit schedule property through registered deed. Therefore execution of Ex.P.24 by the deceased defendant is not proved. When the execution of Ex.P.24 is not proved, no obligation lies on the part of the defendant to execute the re-conveyance deed in favour of the plaintiff. Plaintiff sought for execution of reconveyance deed by the defendant in respect of suit schedule property therefore it shows that the plaintiff has admitted the ownership of the defendant over the suit schedule property .
27. Admittedly the defendant has filed the suit O.S.No.2689/1973 before the learned Munsiff Bengaluru, for arrears of rent . Therefore it shows that the deceased defendant was never intended to execute re-conveyance deed in favour of the plaintiff in respect of suit schedule property, but still plaintiff kept quite for long period. It is clear evidence on the part of deceased defendant to deny the execution of re-conveyance deed in favour of the plaintiff. No other evidence is required other than the suit filed for ejectment and arrears of rent in O.S.No.2689/1973 to gather the intention on the part of the deceased defendant in respect of suit schedule property, but still the plaintiff totally remained silent. This inaction on the part of the plaintiff to sue for execution of re-
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR conveyance deed for a long period of 10 years after the suit filed in O.S.No.2689/1973 is an unnatural behavior on a party, who claims the execution of specific performance. The plaintiff has filed objections to the main HRC petition in HRC No.1271/1973 before Hon'ble 1st Munsiff, Bengaluru on 31.5.1974. Though plaintiff herein is a respondent in HRC No.1271/1973, who has filed objections to the main petition on 31.5.1974 contending that the defendant herein, petitioner therein had executed a contemporaneous document providing an option to the plaintiff to repurchase the suit schedule property, but it is specifically pleaded by him that such a document was executed in the year 1965 prescribing the time limit of 3 years for such repurchase and later it was extended for two more years. But it is important to note that plaintiff though stated that the panchayath was held between the plaintiff and the defendant before the witnesses, but has not whispered anything in the said objection statement regarding execution of receipt i.e., Ex.P.24 by the deceased defendant on 3.8.1971. If Ex.P.24 was really executed on 3.8.1971, nothing would have prevented the plaintiff from revealing the execution of Ex.P.24 in the objection statement filed by him on 31.5.1974. The plaintiff has not given any explanation for not mentioning the alleging existence of Ex.P.24 in the objection statement filed by him. Further this creates a strong doubt about execution of alleged Ex.P.24 on 3.8.1971. Apart from the above, the plaintiff has filed this suit for specific performance of alleged re-conveyance deed after 13 years even if it is held
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR that deceased defendant had agreed to execute a re- conveyance deed until the year 1971, there is no evidence to show that deceased defendant had extended the time after the year 1970 has already observed in the previous paragraphs in normal course on human conduct, a person will not keep quite even after the specific denial of the defendant transfer the title by filing a suit for arrears of rent and ejectment. Plaintiff if at all really intended to get the re-conveyance deed, he would not filed petition under K.D.R Act. Therefore this fact shows plaintiff never intended to get specific relief of re-conveyance deed. Plaintiff fails to prove with cogent evidence he has paid in total Rs.5,000/- to the deceased defendant . Plaintiff alleged that though sale deed was executed on 14.6.1965 as per Ex.D.1, but it is only a nominal sale deed. The recitals in Ex.D.1 clearly shows the right, title and interest over the suit schedule property was transferred and there is no ambiguity in this regard and plaintiff fails to prove Ex.P.24. Therefore over all evidence on record clearly shows that EXD1 is a sale deed executed to sell the suit schedule property in favour of defendant by the plaintiff for a total consideration of Rs 7000/thereby right title interest over the suit schedule property was transfered in favour of defendant. Hence, I answer Issue No.1 to 4 and additional Issue No.1 and 2 in negative.
28. Issue No.5: The defendant claims resjudicata on the basis of previous proceedings. One of such proceedings was in O.S.No.2689/1973 filed by the deceased defendant for ejectment and recovery of arrears
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR of rent against the plaintiff. The other proceedings were eviction under K.R.C Act. In both the proceedings, the question of title was not involved, but in a suit for ejectment and in a petition for eviction under the Rent Control Act, the court would decide the question of landlord and tenant relating between the parties. In order to give a finding about landlord and tenants relationship, the court may looked into incidentally the question of title, but the finding given in such suit, arbitration, writ cannot be equated with the finding given in a suit for title. Therefore any such finding given in the previous proceedings cannot operate as a resjudicata. Therefore while remanding this case, Hon'ble High Court of Karnataka in RFA No.851/2002 in Page No.24 observed as follows:-
"Therefore even if there is any observation by the High Court that it was a sale and not a mortgage, the Hon'ble Supreme Court has made it clear that the High Court's view so far as inapplicability is concerned, is upheld but the parties are directed to 'settle their scores in the appropriate forum.' This means, their rights had to be adjudicated before the competent civil court. That is exactly what the plaintiff did by filing the suit in O.S.No.2107/83. Therefore the learned trial judge had to independently decide the issue based on the material on record and not record finding only by misleading the judgments and orders in collateral proceedings in HRC and O.S regarding arrears of rent and the observation in writ action initiated by the plaintiff."
Hence, I answer Issue No.5 in negative."
Accordingly, Point No.(i) is accordingly answered against the appellant - plaintiff and in favour of the
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR respondents - defendants by holding that the Trial Court was justified in coming to the conclusion that the registered document dated 14.06.1965 executed by the original plaintiff in favour of the original 1st defendant was an out and out Sale Deed and not a nominal Mortgage Deed / security transaction as contended by the plaintiff.
Reg. Point No.(ii):
17. A perusal of the material on record will indicate that the plaintiff has contended that the defendant executed a re-conveyance deed / agreement in 1965 agreeing to re-convey the suit schedule property back to the plaintiff, which was reiterated by her by way of a receipt at Ex.P24 dated 03.08.1971; as stated supra while dealing with point No.(i), I have already noted that the plaintiff had not produced any agreement / re-conveyance Deed of the year 1965 to substantiate his aforesaid contention; plaintiff has produced Ex.P24, certified copy of an alleged receipt dated 03.08.1971 in order to contend that under the said receipt, the defendant confirmed that she had received a total sum of Rs.5,000/- from the plaintiff out of Rs.7,000/- and had agreed to re-
convey the suit schedule property back to the plaintiff after
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR receiving the balance sum of Rs.2,000/- from the plaintiff; in this context, it is pertinent to note that Ex.P24 is only a certified / Photostat copy of the original receipt, the original of which is said to be not available as per the evidence of PW1; a perusal of Ex.P24 will indicate that the same does not bear / contain the signature of the defendant and it merely states that it has been signed by her by using the word 'S/d' without there being the signature of the defendant ; Ex.P24 also states that there are two witnesses M.S.Mani (PW4) and M.Puttaswamy (PW5) and that the said document was drafted / prepared by B. Ramachandrappa (not examined); however, Ex.P24 does not contain the signatures of either PW4, PW5 or the scribe, B. Ramachandrappa and Ex.P24 merely records the contents and signatures of the said receipt dated 03.08.1971; in other words, neither the original alleged receipt dated 03.08.1971 nor its true / certified copy was produced by the plaintiff, who placed reliance upon a certified copy at Ex.P24, which merely / simply records the contents and signatures of the alleged receipt and consequently, the Trial Court was fully justified in declining / refusing to place reliance upon the said
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR document at Ex.P24 for the purpose of considering the claim of re-conveyance put-forth by the plaintiff.
18. In order to prove the contention regarding re-conveyance and Ex.P24, the plaintiff's daughter has examined herself as PW2 and her husband as PW3; however, a perusal of the aforesaid evidence will clearly indicate that they are neither signatories nor executants nor witnesses to Ex.P24 and their selfserving / interested testimonies have been correctly not relied upon by the Trial Court to negative the claim of the plaintiff; further, the evidence of PW4 and PW5 is bristling with various admissions, discrepancies, contradictions, inconsistencies, etc., on the basis of which the Trial Court has recorded the correct finding that the plaintiff had failed to establish the contention of re-conveyance put-
forth by him as can be seen from the impugned judgment and decree referred to supra. Under these circumstances, I am of the considered opinion that the Trial Court was fully justified in coming to the correct conclusion that the plaintiff had failed to establish that the defendant agreed to re-convey the suit schedule property back to the plaintiff and as such, even this finding recorded by the Trial
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR Court does not warrant interference by this Court in the present appeal.
Point No.(ii) is also answered against the appellant and in favour of the respondent by holding that the Trial Court was justified in holding that the defendant had not agreed to re-convey the suit schedule immovable property in favour of the plaintiff either in 1965 or under the document dated 03.08.1971.
Reg. Point No.(iii):
19. A perusal of the impugned judgment and decree will indicate that while dealing with issue No.(6) pertaining to the suit being barred by limitation, the Trial Court recorded a finding that having regard to the undisputed fact that there was a long / huge gap of more than 15 years / 10 years between the date of the alleged re-conveyance dated 14.06.1965 or the alleged receipt at Ex.P24 dated 03.08.1971 and the date of the suit, which was instituted on 21.07.1983, having regard to the provisions contained in Article 54 of the Limitation Act coupled with the fact that the defendant herein had initiated proceedings against the plaintiff
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR herein in respect of the suit schedule property in O.S.No.2683/1973 and HRC No.1271/1973, the present suit filed by the plaintiff was barred by limitation. While arriving at the said conclusion, the Trial Court held as under:
"29. Issue No.6: Plaintiff contends that defendant has executed a re-conveyance deed on 14.6.1965 immediately after execution of sale deed in respect of suit schedule property. According to the plaintiff, the time prescribed as per the terms of re-conveyance agreement dated 14.6.1965 is 3 years. But later on, upon the request of the plaintiff, the time was extended for two more years. As per Art. 54 of Limitation Act 1963, the time limit for filing the suit for specific performance of contract is 3 years from the date fixed for performance or if no such date is fixed when the plaintiff has noticed that the performance is refused. The plaintiff alleges that the time was stipulated for execution of re-conveyance deed in respect of suit schedule property in total 5 years ie., from 14.6.1965 to 13.6.1970 but suit was filed during 1980 . Admittedly plaintiff has filed O.S.No.2683/1973 and HRC No.1271/1973 . Hence during the year 1973 itself, deceased defendant has filed the suit for arrears of rent against the plaintiff in respect of suit schedule property. Thereby he has denied the execution of reconveyance deed. But plaintiff has filed the present suit on 21.7.1983. Time limit to file the suit for specific performance had already been expired during the year 1973. Therefore , the
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR suit is hopelessly barred by time. Hence, I answer Issue No.5 in affirmative."
20. The Trial Court has also answered issue No.(9) against the plaintiff and has come to the conclusion that the plaintiff, who was seeking the reliefs of specific performance of an agreement of re-conveyance was not ready and willing to perform his part of the contract and that in the suit, which was not only barred by limitation, but also filed beyond reasonable time / period, the plaintiff was not entitled to the discretionary and equitable relief of specific performance by holding as under:
"32. Issue No.9: For the relief of specific performance, plaintiff has to prove his readiness and willingness that he was ever ready to get the sale deed in his favour. It is already been held that Ex.D.1 is a sale deed and it is not mortgage deed. Such being the case, plaintiff is not entitled for the relief of redemption. While answering issue No.4, this court has held that the agreement of sale itself is not proved. Again answering limitation issue, this court has observed suit is barred by limitation. Therefore, there is no need to give finding with regard to the readiness and willingness of the plaintiff to get the re-conveyance deed. Even if the question of readiness and willingness is considered the plaintiff kept quite for about 13 years inspite of suit filed by the defendant for arrears of rent and ejectment in OS 2689/1973 . There was complete inaction
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR and silence on the part of the plaintiff for about 10 years during the period of hotly contested suit between the parties. Hence, at any stretch of imagination the claim of the plaintiff is not sustainable. It is already been held that the suit is time barred. The conduct of the plaintiff clearly shows that plaintiff was never intended to get re- conveyance deed in respect of schedule property from the defendant. Therefore conduct of the plaintiff dis entitled the plaintiff for the relief of specific performance. Hence, I answer Issue No. 9 in negative."
21. The aforesaid finding recorded by the Trial Court not only taking into account the previous litigation between the parties but the complete and total and inaction and silence on the part of the plaintiff to institute the present suit for about 10 years during the period when the parties were litigating also cannot be said to suffer from any illegality or infirmity warranting interference by this Court in the present appeal.
Accordingly, point No.(iii) is also answered against the appellant and in favour of the respondent by holding that the Trial Court was correct in coming to the conclusion that the suit was barred by limitation and that the plaintiff was not ready and willing to perform his part of the contract in relation to the agreement for reconveyance.
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR Reg. Point No.(iv):
22. While dealing with point Nos.(i) to (iii) supra, I have already come to the conclusion that the Trial Court was justified in coming to the conclusion that the registered document dated 14.06.1965 executed by the original plaintiff in favour of the original 1st defendant was an out and out Sale Deed and not a nominal Mortgage Deed / security transaction as contended by the plaintiff;
I have also come to the conclusion that that the Trial Court was justified in holding that the defendant had not agreed to re-convey the suit schedule immovable property in favour of the plaintiff either in 1965 or under the document dated 03.08.1971; I have also held that that the Trial Court was correct in coming to the conclusion that the suit was barred by limitation and that the plaintiff was not ready and willing to perform his part of the contract in relation to the agreement for re-conveyance.
23. Upon reconsideration, re-evaluation and re-appreciation of the entire material on record, I am of the considered opinion that the impugned judgment and decree passed by the Trial Court cannot be said to suffer from any illegality or infirmity nor is the same opposed to facts or law warranting
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NC: 2026:KHC:24690 RFA No. 671 of 2021 HC-KAR interference by this Court in the present appeal. Accordingly, point No.(iv) is also answered against the appellant.
24. In view of the foregoing, I do not find any merit in the present appeal, which is accordingly dismissed.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE Srl. / SV List No.: 2 Sl No.: 3