(1) Second Appeal No. 982/59 arises out of a suit brought by Satina Hochappa for a declaration that the document executed on September 3, 1945, in favour of Tulojappa which was marked in this litigation as Exhibit P-9 recorded only a mortgage by conditional sale and not a sale-deed. Sanna Hochappa having been found to be an agriculturist as defined by the Mysore Agriculturists' Relief Act, the Court of first instance allowed oral evidence to be preduced in support of that contention. P.W. 5 the scribe or Exhibit P-9 and P.W. 6 its attestor, gave evidence in support of the case set up by Sanna Honechappa which was to the effect that he it was who constructed the house now existing on the site was also believed by book the Courts. The recorded a finding that Exhibit P-9 therefore was nothing more than mortgage by conditional sale and that Sanna Hochappa was entitled to the declaration which he rayed for.
(2) Tukoappa who is aggrieved by this declaration made by the Courts below is the appellant in this second appeal and on his behalf Mr. Ramadas has urged that the finding recorded v by the Courts below is open to serious criticism since they did not find in the first instance that there was relationship of debtor and creditor between Sanna Hochappa and Tukojappa which according to Mr. Ramdas was and indispensable indispensable to be established before the Courts below could have pronounced that Exhitbit P-9 recorded a mortgage by conditional sale and not a sale-deed. The contention urged by Mr. Ramdas is that unless there was some antecedent transaction between the parties which resulted in the relationship of a debtor and creditor between them, section 58 - Corporation of the Transfer of Property Act (forbids the transaction recorded in Exhibit P-9 being regarded as a mortgage by conditional Sale.
(3) It is clear that this contention is entirely without substance and assumes that in order that there should be a mortgage by conditional sale there should be an antecedent transaction between the two parties who create a mortgage by conditional sale and that antecedent transaction should behave resulted in the first instance, in the relationship of debtor and creditor between them. If this argument is to be accepted it means, that not two parties can bring about a mortgage by conditional sale , if they have not met before and had not entered into a transaction bringing about relationship order debtor of debtor and creditor.
(4) It is no doubt true that in this case although Sanna Hochappa contended that he was having transactions with Tukojappa on former occasions as a result of which he had became indebted to Tukojappa that part of his case was not established by any satisfactory evidence. At any rate, the Courts bellows did not record any finding that any such transactions did take place between those two persons. What the Courts below found was that the very transaction recorded in Exhibit P-9 was the transaction which made Sannna Hochappa a debtor of Tukojappa because, that very transaction was am mortgage by constitutional sale. This finding was what the Courts below though inevitable from the evidence of the scribe P.W. 5 and the attestor P.W. 6 both of whom gave evidence that the transaction to which Exhibit P-9 related was only a (original in regional language omitted, - Ed) which has been translated in the plaint reduced by Sanna Huchappa as a 'mortgage'.
(5) What appears to me in this case was a matter which clinched the entire issue is the evidence given by witnesses who were considered as trustworthy by the Courts below that after September 3, 1945. A house was constructed on the site which was the subject-matter of the document executed on that date and that construction was put up by Sanna Huchappa. If the power appellate Court, thought that fact gave strong support to the case of Sanna Huchappa that he did not sell the property to Tukojappa but only mortgaged 11, it cannot be said tht view taken by the Courts below was to any extent unreasonable or unjustified. No one who has sold a property to another, builds a house on it all his own expense. If he does so and states that he had not sold the property but had only mortgaged it, the fact that he constructed the house in that was is strong evidence in support of his contention in my opinion, the finding of the Courts below that Exhibit P-9 recorded a mortgage by conditional sale is one which is not liable to be disturbed in this appeal.
(6) But , Mr. Ramdas urged that even so, the Courts below should have directed Sanna Huchappa to deposit the Amount of the mortgage debt secured under Exhibit P-9. It is clear that in these proceedings the Courts below could not have while such direction.
(7) This second appeal also falls and is dismissed; but, since Sanna Huchappa has not appeared even in this appeal, there will be no order as to costs.
(8) Appeal dismissed.