IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1429/2009 BETWEEN:
SRI T NARAYANAPPA S/O THIMMAIAH AGED 58 YEARS R/A AGARA VILLAGE THATHAGUNI P.O KENGERI HOBLI BANGALORE SOUTH TQ.60.
….APPELLANT (BY SRI T SESHAGIRI RAO, ADVOCATE) AND:
SRI R RAMAKRISHNA S/O *B RANGANNA AGED 66 YEARS R/A AGARA VILLAGE THATHAGUNI HOBLI BANGALORE SOUTH TQ -60.
…RESPONDENT (BY SRI H M SOMSHEKARAIAH, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED. 25.8.2009 PASSED IN R.A.No.75/2005 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL FILED * Corrected as per Court order dated 28.05.2019.
AGAINST THE JUDMENT AND DECREE DATED:18.02.2005 PASSED IN O.S.No.643/1995 ON THE FILE OF THE PRINCIPAL II CIVIL JUDGE (JR.DN) BANGALORE RURAL DISTRICT, BANGALORE.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the defendant/appellant is directed against the judgment and decree dated 25.o8.2009 passed by the learned Principal District Judge, Bangalore Rural District, Bangalore, in Regular Appeal No.75/2005, wherein Regular Appeal filed by the defendant/appellant came to be dismissed.
2. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as stood before the Trial Court.
3. The suit for specific performance instituted by the plaintiff in O.S.No.643/1975 before the Principal II Civil Judge (Jr.Dn), Bangalore Rural District, Bangalore, came to be decreed and the defendant was directed to execute the sale deed in respect of the suit property in favour of the plaintiff at the cost of plaintiff within 30 days from the date of the said judgment, Against which, defendant preferred an appeal before the learned Principal District Judge, Bangalore Rural District, Bangalore, in Regular Appeal No.75/2005 which also came to be dismissed on 25.8.2009 and as a consequence of which, the judgment and decree dated 18.02.2005 passed in O.S.No.643/1995 by the Principal Civil Judge (Jr.Dn), Bangalore Rural District, Bangalore, came to be confirmed.
The same is challenged in this appeal by the appellant/defendant.
4. The land to the extent of 01 acre 22 guntas in survey No.161/1 of Agara village, Kengeri Hobli, Bangalore South Taluk, belonged to plaintiff as it was his ancestral property which he sold (conditional sale) to the defendant under the sale deed dated 22.12.1972 for a meager sum of Rs.3,000/- and it came to be registered in the office of the Sub Registrar, Bangalore South Taluk.
5. The defendant, on the same day, executed an agreement for re-conveyance of the schedule property in favour of the plaintiff as per the re- conveyance agreement dated 22.12.1972. Plaintiff has paid full sale consideration to the defendant and the same is acknowledged in full.
6. Defendant has even conceded the payment of full consideration. In pursuance of the agreement dated 22.12.1972 defendant has also executed another agreement on 5.1.1981 agreeing to re-convey the property in favour of the plaintiff as and when called upon by the plaintiff.
7. The defendant further promised to execute the full fledged sale deed after lifting of ban on registration of revenue land (it was submitted ban on transfer of fragment). The plaintiff has been in possession and enjoyment of the schedule property which was delivered by the defendant. As the defendant did not keep up the promise, a notice was got issued by the plaintiff on 12.7.1995 (Ex.P13), calling upon the defendant to execute the registered sale deed. However, defendant having the received notice kept it in cold storage. Defendant tried to dispossess the plaintiff from the suit schedule property on 26.9.1995 after tress passing. The plaintiff however resisted the illegal act. The cause of action to the suit as claimed has occurred on 22.12.1972.
8. Defendant resisted the claim of the plaintiff and denied both sale agreements dated 22.12.1972 and 5.1.1981 and the receipt of sale consideration.
9. On the basis of the pleadings of both the parties, the learned trial Judge framed the issues regarding execution of sale deed and Re-conveyance Agreement, effect of Re-conveyance Agreement dated 5.11.1981. However, issue regarding readiness and willingness is not framed. But the additional issue was framed regarding limitation.
10. The learned trial Judge was accommodated with the oral evidence of PWs.1 and 2 and DWs 1 to 3 and documentary evidence of Exs.P1 to P21 and Ex.D1 to D11.
11. The learned trial Judge after hearing the parties and appreciating the oral and documentary evidence, decreed the suit infavour of the plaintiff. The same was challenged by the defendant in R.A.No.75/2005. The learned First Appellant Judge on the basis of the materials available and the submissions made before him, upheld the judgment and decree passed by the learned trial Judge by confirming the judgment and decree granting the relief of specific performance. The same is challenged by the defendant in this appeal.
12. At the time of decreeing the suit, the learned trial Judge has held that, “ no balance amount of sale consideration need to be paid”. Thus, concluding that the entire sale consideration was paid and ordered for the specific performance.
13. The appeal came to be admitted on 4.8.2010 to consider the following substantial question of law:
Whether both the courts below were justified in declaring that the sale transaction dated 22.12.1972 as a mortgage and plaintiff has got right to repurchase the same on the basis of the reconveyance agreement dated 22.12.1972 which is in contravention of Section 58-C of the Transfer of Property Act, in the light of the law laid down by this Court in the case reported in AIR 1980 KAR 154?
Further, on 29.10.2013 this Court has also framed the following substantial questions of law:
“1) In the absence of the specific plea in the plaint about the readiness and willingness to perform the part of the contract, whether the plaintiff (respondent herein) is entitled to the specific performance?
2) Whether the non-examination of the attesting witness to the Agreements- Exs.P1 and 2 is insufficient to prove the Agreements Exs.P1 and 2?
3) In the absence of the complete signature of the defendant [appellant herein] in the disputed document Ex.P2, whether the report of the Commissioner could be relied upon?
4) When the Reconveyance Deed-Ex.P1 is said to have been executed firstly in 1972 and later in 1981, whether the suit instituted by the respondent herein in the year 1995 is barred by time?”
14. However, on hearing the submissions today, I find it necessary to restrict the following substantial questions of law:
(i) Whether it is mandatory to include provisions as to redemption of mortgage to be embodied in the sale deed in order to attract Section 58(C) of the Transfer of Property Act, 1882?
(ii) Whether the plaintiff is benefited by Fragmentation and Consolidation of Holdings Act or ban on registration revenue lands?
(iii) Whether the postponement of time and execution of subsequent agreement go against the averments of readiness and willingness?
(iv) Whether suit is barred by limitation?
The learned counsel for both the sides are notified .
15. Insofar as claim of the plaintiff is concerned, his prayer in the suit is for specific performance of the Reconveyance agreement dated 22.12.1972 and the one dated 5.11.1981. The case of the plaintiff in substance is, defendant was bound to execute the sale deed in specific performance of the agreement dated 22.12.1972 which was renewed or extended on 5.11.1981. Regard being had to the fact that the entire sale consideration came to be paid already. However, both the agreements have been denied.
16. Learned counsel for appellant Sri.
Sheshagiri Rao K., would submit that, case of the plaintiff can not stand to answer the concept of ‘readiness and willingness’, as right from day one, in the pleadings or documents he is not pleaded his ‘readiness or willingness’. Learned counsel would further submit that the agreement is concocted and the defendant never executed the agreement nor received the sale consideration.
17. The learned counsel for appellant would further submit that question of executing the agreement dated 5.11.1981 does not arise when there was no agreement dated 22.12.1972. More particularly, by looking at the nature of the claim made by the plaintiff, the suit is hopelessly barred by limitation. Learned counsel would further submit that plaint violates the mandate of Form 47 and 48 of the Code of Civil Procedure in addition to Section 16(c) of Specific Reliefs Act, as it is bound to aver a status specifically, the ‘readiness and willingness’ of the plaintiff to seek specific performance. Further he submits that plaintiff specifically calls the deed dated 5.11.1981 - Ex.P1 as a Re-conveyance deed and the sale deed dated 22.2.1972 as the conditional sale deed.
18. Learned counsel for respondent/plaintiff Sri.
H.M.Somashekharaiah would submit that the rights of plaintiff for getting the specific performance to get back the schedule property are in tact and it is in no way disturbed. He would further submit that the only duty or part of promise that is caste on the plaintiff would be payment of sale consideration which the plaintiff has paid in Ex.P2. Thus, it is the assertion of the learned counsel for the plaintiff that when once the payment is made, the concept of ‘readiness and willingness’ is specifically stated and pleaded and cannot go in favour of the defendant.
19. In the back drop of the submissions made by both the learned counsel and on perusing the material records, it is necessary to state that agreement to sell, Re-conveyance and mortgage are the three factors that hours in the circumstances of the case.
20. Sale Agreement dated 22.12.1972 is said to be an agreement, wherein defendant agreed to sell the schedule property for a sale consideration of Rs.3,000/. The substance of the said document are:
Date of execution : 22.12.1972 In favour of : Ramakrishnappa @ Ranganna, plaintiff executed by Kumar T. Narayanappa s/o Thimmaiah.
Subject matter agreed to be sold : Land in survey No.161/1 to the extent of 1 acre 22 guntas. Incidentally, the said property was sold by the plaintiff in favour of the defendant through a registered sale deed on the very same day for Rs.3,000/-. Under this document which is marked as Ex.P1, after mentioning about the execution of sale deed, the defendant who is also the purchaser as on that day of the schedule property executes the said agreement.
Time : Six years is the period agreed by the defendant to execute the registered sale deed of the schedule property in favour of the plaintiff, seller as on that day.
21. It is necessary to mention about the next document i.e. Ex.P2, which is also stated to be sale agreement, wherein, it is stated that Narayanappa executed the agreement with reference to the agreement dated 22.12.1972, where he had purchased scheduled property for Rs.3,000/- and agreed to Re-convey the same to the plaintiff and the period is mentioned as six years. The sale deed was not executed as on the date, because of the ban and it is agreed under the agreement dated 5.11.1981 that the defendant would execute the registered sale deed once the ban was lifted. Under these circumstances, the plaintiff’s first assertion is, “that the deed Ex.P1 is not an out and out sale’. He sold the property to the defendant and on the very same day, defendant executed the Re-conveyance deed and calls it as conditional sale.” In this connection, it is necessary to mention Section 58 and 58(c) of the Transfer of Property Act, which describe, ‘mortgage’ and ‘mortgage by conditional sale’ respectively as under:
“Section 58: “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.-
(a)xxxx (b)xxxx (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 On condition that on such payment being made the buyer shall transfer the property to the seller, The transaction is called 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.]”
22. Under the species ‘mortgage by conditional sale’ wherein the mortgagee ostensibly sells the property to the mortgagor with a condition that he undertakes to repay the mortgage money after a particular period and in case of such payment made by mortgagee sale becomes void and in case of non payment, sale become absolute.
23. In the said circumstances, it is the case of the plaintiff that he paid entire money of Rs.3,000/- under the agreement dated 5.11.1981 and though not averred literally, the claim amounts to that he has got back the ownership and the sale becomes a void factor. However, plaintiff has chosen to seek specific performance of Re-conveyance agreement. Thus, the position of the case has to be analyzed with reference to considering the claim as mortgage on the one hand. Further, the other factors sneaking in the facts and circumstances of the case are that, plaintiff claims that he sold the property to the defendant on 22.12.1972. However, defendant executed Re-conveyance deed to reconvey the property. As it was not performed by the defendant, he is seeking the relief of specific performance.
24. It is necessary to mention that, if the specific performance of the agreement if the relief in the circumstances answers it is the specific performance, the connected factors such as execution of the sale agreement, payment of consideration or part consideration, readiness and willingness and the related factors are to be considered. It was in this connection, the contention of learned counsel Sri. Sheshagiri Rao, is that, there is no ‘readiness and willingness’ and even mortgage of Form 47 and 48 are not forthcoming. The sale agreement executed as Ex.P1 and P2 are denied. But there is no averment to comply with the mandate of Form 47 and 48 and even the plaint should have been rejected at the threshold as it did not comply with the terms of section 16(c) of the Specific Reliefs Act.
25. The next legal factor that has come up for consideration is, the effect of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966(‘Fragmentation Act, for short) that came into force. As per the said Act, a fragmentation was prohibited. The meaning of the term ‘fragmentation’ varies from one nature of the land to other. However, in case of ‘dry land’ to whose category the schedule land falls, is considered as ‘two acres’. So subject to the provisions of the Fragmentation Act, any land which becomes a fragment being less than 2 acres could not have been transferred. Thus, the amendment in respect of ban of fragmentation came into effect from 15.9.1983. Incidentally, the sale agreement Ex.P2 is dated 5.11.1981. The contention of the plaintiff in this connection is, the land, admittedly was a fragment and could not have been purchased through a registered sale deed. However, after lifting of the ban, the defendant agreed to execute the registered sale deed in favour of the plaintiff.
26. At this juncture, it is necessary to make a mention that as per the amendment in the year 1983, the transfer of property forming a fragment was prohibited to the fullest. The parties who entered into an agreement, received consideration or part consideration undertaking to get the registered sale deed after lifting of ban as if they had pre information regarding such amendment or modification.
27. Incidentally, the ban was lifted with effect from 05.02.1991 and even a fragmented agricultural land was available for transfer. However, whether the sale agreement is hit by the provision of Fragmentation Act or Section 23 of the Indian Contract Act, depends on the other two factors.
28. Now that the prayer of the plaintiff is for specific performance, on enquiry, learned counsel for the respondent-plaintiff would rely on the agreement of Re-conveyance (‘Edurunudi’ which means re-
conveyance in local language) as the rules of getting back the property by treating the transaction as conditional sale as contemplated under Section 58(c) of the Transfer of Property Act.
29. Here, definition of the word ‘Mortgage’ as defined under Section 58 of the Transfer of Property Act is necessary to be extracted, which is as under:
“58(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage- money, and the instrument (if any) by which the transfer is effected is called a mortgage- deed.”
30. Out of several kinds of ‘mortgage’, the ‘mortgage by conditional sale’ is defined under Section 58(c) of Transfer of Property Act, which is as under:
“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 On condition that on such payment being made the buyer shall transfer the property to the seller, The transaction is called 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.]”
31. Thus, the ingredients of mandate of law is that;
(1) Mortgagor ostensibly sells the mortgaged property to the mortgagee on a condition that if the mortgagor fails to repay the mortgaged money and redeem it on a certain date, the sale shall become absolute.
(2) Incase of payment being made sale becomes void. In which event, the property goes back to the earlier position of mortgagor being the owner of the schedule property.
32. When once the transaction is a ‘mortgage’ the right available to a mortgagor is ‘redemption’ as reflected in Section 60 of the Transfer of Property Act.
33. This right of redemption is a statutory right that cannot be fettered by any clogs of redemption. It is also considered that, ‘once a mortgage is always a mortgage nothing but a mortgage’. To attract said principle, the transaction first fall under the definition given under Section 58 of the Transfer of Property Act, wherein, the interest in immovable property transferred as a security for repayment of debt or for the performance of contract which give rise to pecuniary obligation.
34. Thus, the ‘Mortgagor’ and ‘Mortgagee’ are nothing but glorified ‘debtor’ and ‘creditor’ with security. If the transaction were to be a conditional sale, if mortgaged money is paid back to the mortgagee, seller is restored to be as owner, but in the circumstances, Section 58(c) does not stop by mentioning the ingredients of transaction marked by conditional sale. Proviso to the said Section is also necessary to be read without which, the said section becomes incomplete. The proviso to the said section reads as under:
“Proviso to Section 58(c) 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.]”
35. Both the terms ‘Sale’ and ‘mortgage’ falls within the definition of term as transfer as defined in Transfer of Property Act and in order to attract the definition of Section 58, it is incumbent or mandatory that property is sold from mortgagor to mortgagee ostensibly wherein all the instances or sale or transfer and mortgage is held to be ostensible owner and the provision of re-convey the property must be contained in the same document. Thus, no transaction shall be admitted to be mortgage by conditional sale unless condition embodied in the document which reflects or perspective to effect the same. In this connection, it is necessary to mention the sequence of transaction and the sale agreement.
(i) 22.12.1972: Sale deed was effected by the plaintiff in favour of the defendant in respect of Survey No.161/1 of Agara village, Kengeri Hobli, Bangalore South Taluk, for a cash consideration of Rs.3,000/-
(ii) On the very same day, defendant is said to have executed the Re-conveyance Agreement in favour of the plaintiff agreeing to re-convey the schedule property in case the amount of Rs.3,000/- is paid back by the plaintiff within a period of six years.
36. Further, the plaintiff claims that he has paid the amount of Rs.3,000/- to complete his part of performance on 5.11.1981 which means, according to him, he has redeemed the mortgage. Incidentally, he calls for specific performance while considering the date of agreement of 1972 and payment of amount on 5.11.1981, postponing the registration of sale deed because of the Fragmentation Act, is that, the right as on 5.1.1981 is very much doubtful right to get sale deed. Thus for the basic failure of separate documents Exs.P1 and P2, the transaction cannot be termed to be one mortgage to grant the right of redemption by treating the transaction as ‘mortgage by conditional sale’ within the meaning of Section 58 (c) read with Section 60 of the Transfer of Property Act, 1882.
37. Further, insofar as the right of Specific Performance is concerned, it is claimed on the very same document, namely, Ex.P1 which is the Re- conveyance agreement executed by the defendant in favour of the plaintiff on 22.12.1972. Incidentally, there is another agreement dated 5.11.1981 wherein plaintiff paid Rs.3,000/- to the defendant in terms with the agreement dated 22.12.1972. However, sale deed is not executed. It is postponed because of ban on registration. In this connection, it is necessary to mention that, ban of registering the sale deeds on fragmented land came to be passed by virtue of amendment to Section 5 of the Fragmentation Act. Under such circumstances, taking a time of almost 09 years and paying the amount that means 03 years above the agreed period of 06 years is not ordinary.
Further, it is necessary to observe that the ban on transfer of fragmented land as per the amendment of the year 1983 came to be lifted on 5.2.1991 wherein the entire Fragmentation Act was revoked and the result was transfer of fragmented land was restored to be permitted.
38. Now, it is necessary to make a cursory glance regarding the point of limitation:
The limitation in respect of the Contract of Sale agreement in respect of the immovable property is 3 years from the due date, provided, purchaser has been ready and willing to perform his part of promise. In case, no due date is mentioned, it is from the date of demand for specific performance and its refusal whether actual or anticipatory refusal.
39. In the circumstances, to begin with, during 1972 there was no ban of transfer of fragmented land and even such was the case after the expiry of six years from 1972 and there was no ban for further period of 3 years also and the lands were freely alienable. However, plaintiff claim that he paid the amount on 5.11.1981. It is necessary to mention that according to the plaintiff the agreement was after lifting the ban. The anticipated ban become a reality and ban of transfer of fragmented land was lifted by the Government on 5.2.1991. Under which circumstances, the cause of action again would start on 6th February 1991 in case such a ban was there. Entering the sale agreement to sell the land and property after lifting the ban is prohibited and its validity is a question that has to be answered with reference to Section 23 of the Contract Act.
40. Even otherwise, date of filing of the suit is 6.11.1995. The mentioning of the word ‘ready and willing’ that cannot solve the question asked by Sections 47 and 48, its attendant circumstances, conduct of the parties, sequence of events and incidents that would tell whether the plaintiff was ready and willing to perform his part of promise. Thus, if the plaintiff had real intention to enforce the sale agreement, the period from 1972 plus 6 years is not an acceptable factor to claim that he was ready and willing. Further, the non performance of the agreement even after the lapse of six years and thereafter five years, does not speak about the readiness and willingness. Mere averment of readiness and willingness is not sufficient. No-dobut, in case of contract relating to transfer of immoveable property time is not essence of the contract. However, subsequent contract or refusal make it essence. In this connection, the property cannot be tied till eternity. Thus, from the above circumstances and accepting the events as claimed by the plaintiff, the date of execution of the sale deed, coupled with the Re-conveyance Agreement- Ex.P1 and the next sale agreement- Ex.P2 it cannot be said that plaintiff has been ever ready and willing to perform his part of contract to seek performance of contract. Moreover, insofar as amount of sale consideration is concerned, the said matter has been sidelined sofar. However, no sale consideration is paid as on the date of Ex.P1 and it is claimed to have been paid in Ex.P2.
41. Learned counsel for the appellant has relied on the following decisions:
(i) AIR 2011 Karnataka 58 in the case of Smt. Parvathamma and others Vs. Smt. Uma and others;
(ii) AIR 1954 Supreme Court 345 (Vol.41 CN.83) in the case of Chunchun Jha Vs. Ebadat Ali and another;.
(iii) 1969(2) Supreme Court Cases 539 in the case of Ouseph Varghese Vs. Joseph Aley and others;
(iv) (2009) 5 Supreme Court Cases 462 in the case of Ahmadsahab Abdul Mulla dead by proposed LRs Vs. Bibijan and others:
(v) (1989) 4 Supreme Court Cases 313 in the case of Abdul Khader Rowther Vs. P.K.Sara Bai and others;
42. On the other-hand, learned counsel for respondent has relied on the following decisions:
(i) 1965(1) Mysore Law Journal 166 in the case of Chayappa Santammappa Vs. Mahamad Hasan and others;
(ii) 1980(2) Karnataka Law Journal. 25, in the case of Ningegowda Vs.Jayamma and others;
(iii) 1981(2) Karnataka Law Journal 211 in the case of Ramakka Vs. K. Muniyappa and another;
(iv) 2012(4) KCCR 3110 in the casek of Krishnoji Rao Vs. Agarbathi Workers House Building Cooperative Society Limited, Bangalore and others.
43. I further focus attention to Ex.P1 (a)(b) and (c) wherein Ex.P1(a) is written in ink and again scored of. The contents are in Kannada. As I am conversant with Kannada Language, I translate the same. It is written as “It is in respect of receipt of the principle and interest.” Again it is written in Kannada as “receipt of Rs.3,700/- by the defendant”.
44. Among other aspects, the point of Limitation is also involved for adjudication. It is the claim of the defendant that the agreement is hopelessly barred by limitation. In this connection, I have already discussed regarding the nature of the transaction and came to the finding to the effect that it did not fall under Mortgage to apply the Rules of time provided for Mortgage and it is not open for the plaintiff to seek benefit of Section 60 of the Transfer of Property Act.
45. It is in respect of filing of the suit, the learned counsel for appellant Sri. Sheshagiri Rao submits that agreement was there and there was no cause of action and the stated one is barred by limitation.
46. In addition to what is discussed above, it is necessary to come into lines of arithmetic. Details of transactions are:
Ex.P-1 dated 22.12.1972 wherein defendant is said to have executed a document in favour of plaintiff on the very date of the execution of sale deed of the same property from plaintiff to defendant.
The time factor that was agreed upon as per Ex.P.1 is, whatever the schedule property which the defendant purchased from plaintiff was agreed to be reconveyed by defendant in favour of plaintiff for a cash consideration of Rs.3,000/-, time limit agreed was six years. That came to an end may be by 22.12.1978. As stated above, there was no activities till 05.11.1981 i.e. for about 2 years 11 months.
Even otherwise, the agreement as per the version of plaintiff is, because of the restriction on registration, defendant agreed to execute the registered sale deed after lifting of ban. But, incidentally, in the agreement it is not mention as due to Fragmentation and Consolidation of Holdings Act. To be clear, wordings mentioned therein is, “Government has stopped registration of revenue lands.” If it is to be presumed that it is as per Fragmentation and Consolidation of Holdings Act, where ban started from 15.9.1983, even if it is taken that it was agreed by the parties under Exhibit P-2 that defendant agreed to execute registered sale deed after the embargo was lifted.
47. Here what becomes relevant is, the date of lifting of the embargo imposed on transfer of fragmented land. The relevant date is ‘05.02.1991’. So that should be considered as the commencement of right to get the registered sale deed of the schedule property. On calculation of this exactly in the lines of plaintiff it is necessary to find out the period of three years if were to commence on 06.02.1991 that gets completed by midnight of 05.02.1994.
48. Even from this angle of calculation, agreement losses its enforceability and gets barred by limitation. Thus, it is disadvantageous to plaintiff in case the sale deed was agreed to be executed after lifting of ban on registration of sale deed in respect of revenue land, which was vacated somewhere earlier to 1983-84 which is still worse. Thus, the agreement becomes unenforceable from all segments even if the dates as submitted by the plaintiff is taken into consideration.
49. Learned trial Judge in O.S.No.643/1995 and the learned appellate Judge in R.A.No.75/2005 failed to focus on the important aspects of law regarding the specific purpose of limitation and in decreeing the suit earlier. Thus, the concept of ‘readiness and willingness’ also not seen by virtue of the fact that the silence of the plaintiff from 22.12.1978 onwards. Insofar as non- examination of attesting witnesses is concerned, it is the objection taken by the defendant in order to prove the agreement. But, it is not compulsory. The question of proving attestors arise in case of document which is compulsorily to be attested. Re-conveyance deed as claimed by the plaintiff is to treat the transaction as mortgage by virtue of non incorporation of the right of re-conveyance in the same transaction as contemplated in proviso to Section 58(c) of Transfer of Property Act, no rights could be claimed in the lines of mortgage. Further the concept of Fragmentation and Consolidation of Holdings do not arise by virtue of the very nature of the transaction and the ban was in respect of transfer of fragmented land that was imposed in the year 1983 by virtue of amendment No.5 to the said Act on 15.09.1983.
50. In the circumstances, to invoke benefit of Section 60 of the Transfer of Property Act, to consider deed as mortgage by conditional sale, the condition of recovery should be contained in the very sale deed, and this did not happen in this case. The transaction is not a mortgage by conditional sale. Further the plaintiff is not entitled for the benefit of the Fragmentation and Consolidation of Holdings Act or the ban on transfer of revenue land. The conduct of plaintiff and the sequence of events suggest that the plaintiff was not ready and willing to perform his part of promise as per the agreement dated 22.12.1972. Further the original suit is barred by limitation.
The substantial questions of law are answered accordingly.
51. In the over all circumstances and context of the case, I find that the Judgment and decree passed in O.S.No.643/95 is erroneous and appellant succeeds in establishing that the Judgment and decree suffered legal efficacy.
52. For the foregoing reasons, appeal is hereby allowed. Judgment and decree dated 25.08.2009 passed in R.A.No.75/2005 on the file of the Principal District Judge, Bengaluru Rural District, Bengaluru, is *set aside and consequently, Judgment and decree passed in O.S.No.643/95 by the Principal II Civil * Corrected as per Court order dated 28.05.2019.
Judge (Jr.Dn), Bengaluru Rural District, Bengaluru, is set aside and suit stands dismissed.
No order as to cost.
Sd/- JUDGE tsn*/SBN