The Additional Subordinate Judge on an interpretation of the document in question held that the document was only an outright sale and number a mortgage by companyditional sale.
The respondents herein being aggrieved by the appeal being allowed and their suit being dismissed, preferred S.A. No.
Pending the suit, the said Munimalaiyan died and his LRs were brought on record as his legal representatives and they companytinued to prosecute the suit.
The appellant herein resisted the suit companytending that the deed dated 20.10.1970 was an outright sale and that since Munimalaiyan was unable to discharge the simple mortgage the deed in question came to be executed and that the sale companysideration under the document was adjusted towards the amounts due under the simple mortgage deed of the year 1961 and that the said document was executed on the advise of the Panchayatdars and that half the property is rocky and unfit for cultivation and that the income therefrom was very meagre and that a right to repurchase had been reserved under the document within a period of three years failing which the document stipulated that the appellant would have absolute rights and that the option to repurchase was number exercised within the stipulated period of three years and that from the date of the document the appellant has been in possession as absolute owner and has been paying kist and that patta has also been transferred in her name and that the appellant had made certain portions of the property cultivable and the value thereof has increased and in order to get the benefit of the increase in value the present suit has been laid wrongly alleging that the document is a mortgage by companyditional sale and that the suit is barred by time and that the provisions of Act 40 of 1978 are number applicable to the facts of the case and that the question of scaling down of the debt does number arise and that companyrt fee paid is incorrect.
The District Munsiff, Hosur who tried the suit held that the document in question which was marked as Exhibit A1/B1 was only a mortgage by companyditional sale and that it is number a sale deed as companytended by the appellant herein and that from the intention of the parties and the document in question, it was clear that only a mortgage by companyditional sale had been executed and that Munimalaiyan was entitled to the benefits under Act 40 of 1978 and that, therefore, only Rs.600/ was due and that the question of mesne profits was relegated to the final decree proceedings.
For securing the due repayment, 3 items of properties belonging to Munimalaiyan was given as security.
In and by the said deed, one of the properties which was given as security for the simple mortgage was sold to the appellant herein with a right reserved to the said Munimalaiyan to repurchase the same within a period of 3 years on payment of Rs.3,000/ .
The appellant issued a reply numberice companytending that the deed dated 20.10.1970 was a deed of sale and number a mortgage by companyditional sale as sought to be companytended by the said Munimalaiyan.
The said Munimalaiyan instituted a suit in O.S. No.
51 and 1982 by the Additional Subordinate Judge, Dharmapuri at Krishnagiri and restoring the order and judgment dated 20.11.1981 passed by the District Munsiff, Hosur in O.S. No.
As on 20.10.1970, the property was valued at Rs.12,500/ .
It was companytended that the deed dated 20.10.1970 was a mortgage by companyditional sale and that pursuant to the sale, the appellant was put in possession of the suit property and that the deed is number a sale deed and that a right to redeem the property within a period of 3 years was reserved and failing which the appellant herein was entitled to have the patta transferred in her own name.
1966 of 1984 on the file of the High Court at Madras.
Aggrieved by the preliminary decree, the appellant preferred an appeal on the file of the Additional Subordinate Judge, Dharmapuri.
The kist for the land was also companytinued to be paid by Palani Moopan and after his death, by his sons.
We have carefully perused the judgment under appeal in the second appeal and also the judgment and decree passed by the Appellate Court and also of the trial Court and perused the document companyditional deed of sale for Rs.3,000/ dated 22.10.1970.
542 of 1978.
542 of 1978 on the file of the District Munsiff, Hosur against the appellant herein praying for a decree for redemption.
It was further companytended that Munimalaiyan was paying the kist for the suit properties and that the appellant had raised various crops and derived sufficient income every year and that the mortgaged debt has to be scaled down as per Section 8 of Act 5 of 1978 and that since the appellant has been in possession for 8 years Rs.2,400/ ought to be deducted and that the appellant herein is entitled only to Rs.600/ as per law and that the said sum of Rs.600/ has been deposited into Court and that, therefore, the property has to be re transferred and possession handed over.
The trial Court thus passed a preliminary decree for redemption.
Lastly, the companysideration for reconveyance was Rs.4,000/ , the same amount as the companysideration for the original transaction.
In this view of the matter, the Additional Subordinate Judge allowed the appeal and thereby set aside the judgment and decree passed by the District Munsiff.
Jagadeesan, J. who heard the second appeal allowed the same and restored the judgment and decree of the trial Court by setting aside the judgment and decree of the Appellate Court.
A legal numberice was issued by the said Munimalaiyan to the appellant herein seeking redemption of the property which was the subject matter of the deed dated 22.10.1970.
On these allegations the appellant herein prayed for the dismissal of the suit.
Lakshmanan, J. This appeal is directed against the final judgment and order dated 06.03.1998 passed by the High Court of Madras in Second Appeal No.
Dr. AR.
On these allegations the said Munimalaiyan prayed for the aforesaid relief.
The plaintiff was entitled to preliminary decree for redemption under O.34, R.7, Civil Procedure Code, for taking accounts and for declaration of the amounts due to the 1st defendant under the document.
The short facts of the case are as follows The defendant is the appellant in this civil appeal.
Munimalaiyan was unable to discharge the simple mortgage and on the intervention of Panchayatdars, a deed was executed by Munimalaiyan in favour of the appellant herein Chennammal .
1966 of 1984 allowing the same and reversing the judgment and order dated 15.11.1983 passed in A.S. No.
