Bhavani Amma Gowri Amma v. Kuttan Parameswaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934** ## **SA.No. 695 of 1997 ( )** **---------------------AS.45/1989 of PRINCIPAL SUB COURT,ALAPPUZHA OS.465/1973 of PRINCIPAL MUNSIFF,ALAPPUZHA** **APPELLANT/3RD DEFENDANT: ------------** **BHAVANI AMMA GOWRI AMMA, SREE PADMASADANAM FROM AIKKARA VEETTIL 9ACHAMATHU) KATTOOR MURI MARARIKULAM SOUTH VILLAGE** **BY ADV. SRI.P.R.VENKETESH** **RESPONDENTS/ RESPONDENTS 1 TO 12/PLAINTIFF & DEFENDANTS 1,2,4TO 12: -----------------------------------------------------------------** - ***1. KUTTAN PARAMESWARAN, THAKADY VELIYIL,** - **FROM AMBALAKKATTU KATTOOR MURI,** - **MARARIKULAM SOUTH VILLAGE (DIED LRS IMPLEADED VIDE ORDER DT 7.11.2005 IN I.A NOS. 364, 365 134 OF 2004)** **2. PARVATHY AMMA BHAVANI AMMA, AIKKARA VEETTIL(ACHAMATHU) KATTOOR MURI, MARARIKULAM SOUTH VILLAGE** - ****3. SANKARA KURUP VISWANATHA KURUP OF DO... DO (DIED)** **4. BHAVANI AMMA JANAMMA, AIKKARA VEETTIL, ACHAMATHU, DO..DO** **5. T.V. NARAYANAN, THOVEETTIL, MANNANCHERRY MURI,** **ARYAD NORTH VILLAGE** **6. K. ABDUL RAHIMAN, VELLAKKAZHATTU VEETTIL, DO...DO** - ****7. T.N. SOMASEKHARA KURUP, KANAKKASSERIL, KATTOOR MURI,** - **MARARIKULAM SOUTH VILLAGE (DIED)** **8. S. SIVARAMAN NAIR, PULICKALCHIRA VEETTIL, KATTOOR MURI, MARARIKULAM SOUTH VILLAGE** - ****9 M.N. PARAMESWARA KURUP, VIRUTHIPPARAMBATH VEETTIL, KATTOOR MURI, MARARIKULAM SOUTH VILLAGE (DIED)** **10. S. RAJAPPAN, MUTHUCHIRAYIL VEETTIL, MANNANCHERRY MURI,** **ARYAD NORTH VILLAGE** ## **SA.No. 695 of 1997 ( ) :2:** - ****11. T.N. SREEDHARAKURUP, KANAKKASSERIL VEETTIL,** - **KATTOOR MURI, MARARIKULAM SOUTH VILLAGE (DIED)** - ****12. K. PARAMESWARAN PILLAI, AYALATTU VEETTIL,** - **KATTOOR MURI, MARARIKULAM SOTH VILLAGE (DIED)** - **(ADDL.R13 TO R15 IMPLEADED VIDE ORDER DT.7.11.2005)** **13. KAMALAKSHI, W/O. LATE KUTTAN PARAESWARAN, THAKADY VELIYIL, AMBALAKKATTIL KATTOOR MURI, MARARIKULAM SOUTH VILLAGE** **14. SANTHOSHKUMAR, S/O. LATE KUTTAN PARAESWARAN,** **THAKADY VELIYIL, AMBALAKKATTIL KATTOOR MURI, MARARIKULAM SOUTH VILLAGE** **15. SURESH BABU, LATE KUTTAN PARAESWARAN,** **THAKADY VELIYIL, AMBALAKKATTIL KATTOOR MURI, MARARIKULAM SOUTH VILLAGE** **(** RESPONDENTS 3,7,9. 11 AND 12 ARE DEAD AND THAT NO ONE NEED BE IMPLEADED AS THEIR LEGAL REPRESENTATIVES IS RECORDED AT THE RISK OF THE PETITIONER AS PER ORDER DT. 19.9.2011 IN I.A. NO.2125/2011)** **ADDL.R13 TO 15 BY ADV. SRI.N.K.SUBRAMANIAN ADDL.R13 TO 15 BY ADV. SRI.S.ANANTHAKRISHNAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. VINOD CHANDRAN, J** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - S.A No. 695 of 1997** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 9[th] day of October, 2012** ## **J U D G M E N T** Though there is an array of respondents, essentially the dispute is between the appellant who was the 3[rd] defendant before the trial Court and deceased Kuttan Parameswaran who was the plaintiff. Kuttan Parameswaran having survived up to this Court, passed away while this Second appeal was pending and hence his legal heirs have been impleaded as Respondents 13 to 15. All the other respondents are assignees/occupants of the various rooms and their legal heirs, who had not chosen to enter appearance in this second appeal. This dispute centers around the construction of Ext.A3 and Ext.B1 documents, executed respectively on 29.5.1960 and 13.7.1965, by the legal heir of one Kandan Narayanan, in favour of the plaintiff. The following substantial questions of law have been raised in the above second appeal: - i. When admittedly the exact description of the property as claimed by the plaintiff is contained SA 695 of 1997 : 2 : in the correction deed, are not the courts bound to proceed on the basis of the description contained in the correction deed? - ii.Can it be said in the light of Exts.A2, A3 and B1 and the description of the property in the plaint that the plaintiff has obtained equity of redemption over the suit property? - iii.What is the mode of assessment of value of improvements to be adopted? 2. Kandan Narayanan, predecessor of the plaintiff by a deed of mortgage dated 23.2.1119 M.E mortgaged 14 cents of immovable property with a building wherein 9 rooms were situated to the parents of the appellant/3[rd] defendant. The 3[rd] defendant contended that her parents had obtained the said property by a mortgage of 1117 ME which was the continuation of a mortgage of 1081 M.E. It was her contention before the trial court that by a mortgage of 1081 M.E the properties came into the possession of the Kurukkasseril family by virtue of the mortgage executed in their favour by the owner of the property, namely, Mani Kutty. By virtue of a partition in Kurukkasseril family the said property devolved upon one Sarangadharan, who, by the SA 695 of 1997 : 3 : mortgage of 1117 M.E gave possession of the said properties to the parents of the 3[rd] defendant. 3. Kuttan Parameswaran, the plaintiff, however, claimed that the mortgage in favour of the 3[rd] defendant's predecessors-in-interest was by one Kandan Narayanan in the year 1119 M.E. Kandan Narayanan, in fact, had filed a suit numbered as O.S 1247 of 1118 M.E against Sarangadharan and the parents of the 3[rd] defendant for recovery of possession of the said 14 cents. The suit was compromised and subsequent to the decree as per the terms of the compromise, Kandan Narayanan executed the mortgage of 1119 M.E in favour of the parents of the 3[rd] defendant. Along with the said 14 cents of property Kandan Narayanan was also in possession of another 24 cents lying contiguous to the 14 cents. On the death of Kandan Narayanan the properties devolved on his surviving legal heirs, his mother and a brother, the latter of whom too predeceased the mother. The mother of Kandan Narayanan was the executant of Ext.A3 and B1. 4. By Ext.A3 the entire 38 cents was conveyed to Kuttan Parameswaran, however, since 14 cents of property along with 9 shop rooms was subsisting on a mortgage, what was conveyed was the equity of redemption with respect to the SA 695 of 1997 : 4 : said properties. The 24 cents which was in the possession and ownership of Kandan Narayanan, was absolutely conveyed as per the said deed. Since there was a mistake in the schedule, the same was corrected by a subsequent deed Ext.B1 dated 3.7.1965. The plaintiff, Kuttan Parameswaran, assignee from the legal heir of Kandan Narayanan filed the above suit for redemption of mortgage against the 3[rd] defendant, her mother and her siblings. The 3[rd] defendant appeared before Court and claimed absolute rights under her parents. None of the others appeared even before the trial court. The 14 cents of property with 9 shop rooms was sought to be redeemed and the same was scheduled in the plaint. 5. Before the trial court, initially, the 3[rd] defendant took up a contention that she is entitled to deemed tenancy under Section 4A of the Kerala Land Reforms Act, 1963(hereinafter referred to as 'the KLR Act'). The issue, hence, was referred to the Land Tribunal, who found in favour of the 3[rd] defendant. Based on the said findings of the Land Tribunal, the suit was dismissed and First Appeal too proved futile. Plaintiff filed Second Appeal before this Court. This Court after elaborately considering the claim of the 3[rd] defendant relating back to the mortgage of 1081 M.E rejected the claim of deemed tenancy SA 695 of 1997 : 5 : by judgment dated 3.12.1985 in S.A 226 of 1981 and remanded the matter for trial. 6. The suit after trial was decreed. In first appeal, the 3[rd] defendant sought to amend the written statement with a fresh plea under Section 106 of the KLR Act. The first appellate Court allowed the amendment and also remanded the suit to the trial court, for the purpose of fresh reference to the Land Tribunal. The plaintiff, then filed a Civil Revision Petition before this Court against the amendment being allowed by the lower appellate court and also appealed against the remand order. In the CRP this court found that the fresh claim under Section 106 again relates back to the mortgage of 1081 M.E, and the same having been found against, in the Second Appeal, the claim no longer survives. CRP 1082 of 1995 was allowed by order dated 21.11.1996. The order of the first appellate court allowing the amendment sought for by the 3[rd] defendant was reversed. The order of remand to the trial court for reference to the Land Tribunal was also consequentially reversed in the CMA. The matter, then, was considered by the first appellate court and the judgment and decree of the trial court was affirmed. The judgment of the trial court as affirmed by the first appellate SA 695 of 1997 : 6 : court is impugned herein. 7. I have heard the learned counsel for the appellant/3[rd] defendant Sri. Venkatesh and the learned counsel for the respondents/legal heirs of the plaintiffs Sri. N. Subramanian. 8. The learned counsel for the appellant would contend that the plaintiff cannot claim any equity of redemption with respect to the plaint schedule property since the claim of the 3[rd] defendant is not under Kandan Narayanan but is under the mortgage of 1081 ME. Alternatively, he would also contend that if at all the 3[rd] defendant or more specifically, her parents are found to be mortgagees under Kandan Narayanan, then also, the plaintiff has no equity of redemption by virtue of Ext.A3 as corrected by Ext.B1. Pointedly, it is argued that while Ext.A3 showed in its schedule, the 14 cents of property, by Ext.B1 correction deed, the said schedule was substituted and the 14 cents were excluded while including the 24 cents. The conveyance obtained by the plaintiff is only with respect to the 24 cents and the 14 cents having been specifically excluded vide the correction deed, there can be no claim for equity of redemption. 9. The learned counsel for the respondents/legal heirs of the plaintiff, per contra, would contend that Ext.A3 intended SA 695 of 1997 : 7 : passing of the equity of redemption with respect to 14 cents of property to the plaintiff and also the conveyance of the 24 cents in the physical possession of the legal heir of Kandan Narayanan. However, the schedule by a mistake showed the 14 cents of property as being conveyed and that was sought to be rectified by substituting the schedule of Ext.A3 with the schedule of Ext.B1. Ext.A3 read along with B1 would show that the plaintiff had acquired the equity of redemption from the legal representatives of Kandan Narayanan. Ext.B3 in fact, is irrelevant in so far as the equity of redemption was concerned since, it dealt with the conveyance of the 24 cents of property. That was the reason why the correction deed was not produced by the plaintiff. 10. It is too late in the day for the 3[rd] defendant to advance the contention with respect to the mortgage of 1081 M.E. That was the contention taken up at the initial stage before the trial court to canvass the claim of Section 4A under the KLR Act. Section 4 A provided for a deemed tenancy of an immovable property subsisting as a mortgage or a lease for 50 years continuously and remaining as such on the notified date being 1.1.1970. The claim of the 3[rd] defendant was that her parents were continuing under the mortgage of 1081 M.E by a SA 695 of 1997 : 8 : fresh mortgage executed in 1117 M.E. This was the specific claim which was considered in the second appeal. 11. The learned Single Judge of this Court found that there was a mortgage of 1081 M.E and subsequently another executed in 1117 M.E to the parents of 3[rd] defendant. But the said mortgage was found to have come to an end in 1119 M.E. The parents of the 3[rd] defendant had, as per the terms of a compromise entered into in a suit filed by Kandan Narayanan, taken possession of the said properties by virtue of a mortgage executed on 22.3.1117 M.E by the said Kandan Narayanan. This Court found that the earlier mortgage was clearly extinguished. In the second appeal 3[rd] defendant relied on a Division Bench decision of this Court reported in **1980 KLT 280 Parameswaran v. Krishnan** , wherein a mortgage of 1084 M.E was continued uninterruptedly and a fresh mortgage on advancing of further sum was executed in 1098 M.E. The Division Bench found that the mortgagee is to be considered as holding the property for the purposes of the KLR Act, under the earlier mortgage of 1084 M.E. This decision was distinguished in so far as the earlier mortgage in favour of the parents of the 3[rd] defendant stood completely extinguished on 1119 M.E. This Court also relied on a SA 695 of 1997 : 9 : Supreme Court decision reported in **Prithi Nath Singh v. Suraj Ahir (AIR 1963 SC 1041)** to hold that primarily the charge on the property is with respect to the money advanced and the claim on such property arises only if a default is committed. If the money claim is settled then there can be no right on the property. 12. The mortgage of 1117 M.E from one Sarangadharan though the continuation of a mortgage of 1081 M.E; stood completely extinguished on the comprise being entered into in the suit filed against the said Sarangadharan and the mortgagees, parents of the 3[rd] defendant. The execution of mortgage in 1119 M.E extinguished the earlier debt and no amount was due as on 1.1.1970 under the earlier mortgage, to confer the status of a statutory tenant as on 1.1.1970. There was no claim for money subsisting on the earlier mortgage as per the recitals of the deed dated 23.2.1119 M.E. Ext.A2 would clearly show that the transaction entered into was a fresh mortgage. Since on 1.1.1970, the notified date, the 3[rd] defendant or her predecessors-in-interest was not in possession continuously for a period of 50 years under the mortgage of 1119 M.E, the claim under Section 4A was rejected. Though the possession as a mortgagee from 1119 SA 695 of 1997 : 10 : M.E was perfectly legal and valid, that does not create a right under the KLR Act. In the first appellate court again the claim under Section 106 based on the very same earlier mortgage was raised. Strangely that was allowed by the first appellate court. This Court again considered the matter in the revision and held the same to be covered by the judgment in the second appeal. It no longer lies in the mouth of the 3[rd] defendant to contend that she claims under the mortgage of 1081 M.E. This question was dealt with first by this Court, since the impugned orders does not deal with this issue. The proceedings described above would indicate, that though it arose for consideration earlier it had been dealt with and finally concluded by this Court itself, the orders of which are available in the records. The claim for a remand on this aspect cannot be countenanced in view of the earlier binding judgments of this Court; inter-parties. 13. The trial court raised the issues based on Ext.A2 mortgage by Kandan Narayanan in favour of the predecessorsin-interest of the 3[rd] defendant and Exts.A3 and B1 being assignments in favour of the plaintiff as also the conflicting claims of mesne profits and improvements respectively made by the plaintiffs and defendants. The issue of the construction SA 695 of 1997 : 11 : of the deeds was raised as issue No.2 and 3. The contention of the 3[rd] defendant that the 14 cents of property which subsisted in mortgage was excluded by Ext.B1 was specifically considered along with the construction of Ext.A3. Ext.A3 dealt with a total extent of 38 cents which was in the ownership of Kandan Narayanan. The Court found that it is clear from a reading of document A3 that the 14 cents outstanding in mortgage was assigned to the plaintiff, subject to the mortgage. To put it differently what was assigned was the equity of redemption that devolved upon the mother of Kandan Narayanan on his death. Noticing that there is some discrepancy in the schedule the trial court clearly found that by Ext.B1 the 24 cents which was omitted in the earlier document was included. It also found that on a conjoint reading of Exts.A3 and B1, there can be no inference that the plaint schedule property was intended to be excluded. The consideration with respect to Exts.A3 and B1 being an amount of Rs.300 was in respect of the38 cents of property and Rs.20 was specifically reserved with the assignee for redeeming the mortgage outstanding on the suit property. The court below also noticed that the predecessors-in-interest of 3[rd] defendant had surrendered one room out of the 9 rooms to the mother SA 695 of 1997 : 12 : and then surviving brother of Kandan Narayanan. That was by Ext.A1 agreement of 13.6.1959, after the death of Kandan Narayanan. The plaintiff, admittedly, was in possession of that room when the suit was filed. The mother of Kandan Narayanan, being the only surviving legal heir, the court below found the assignment as per Exts.A3 and B1 to be proper and being comprised of the conveyance of 24 cents of property as also the equity of redemption with respect to 14 cents of property with building thereon. The question of improvements and mesne profits were considered on the basis of the Commission report and this Court exercising the jurisdiction under Section 100 of the Code of Civil Procedure would not be going into the said computation made by the trial court. In appeal, the findings of the trial court were confirmed. As noticed above, what is relevant to resolve the dispute in the instant case is the construction of Exts.A3 and B1. As noticed above, the 3[rd] defendant cannot, at this stage, claim any mortgage or possession of the properties under any transaction prior to 1119 M.E. The 3[rd] defendant is in possession of the properties as a mortgagee under Ext.A2, under Kandan Narayanan. The only dispute is whether the legal heir of Kandan Narayanan assigned the equity of SA 695 of 1997 : 13 : redemption to the plaintiff. This Court hence, is not called upon to consider any of the other documents produced in the suit. Ext.A3 is the document, recitals of which, would clearly indicate the intention of the executant to assign entire 38 cents of property to the plaintiff. However, since 14 cents out of the total 38 cents was subsisting in a mortgage, Rs.20 out of the total consideration of Rs.300/- was reserved with the assignee for the purpose of redeeming the mortgage. 14. The equity of redemption with respect to 14 cents of properties and the rooms thereon and the remaining 24 cents in the possession and ownership of the executant were dealt with separately, in Ext.A2. The mortgage of 1081 M.E, the subsequent suit OS 1247/1118 M.E as also the present mortgage of 1119 M.E was specifically referred to. The 14 cents of property along with the building was shown as being in the possession of the predecessors-in-interest of the 3[rd] defendant and subsisting on a mortgage. The balance 24 cents was specifically referred as being in the possession of the executant of Ext.A1. As noticed above, Rs.20/- out of the total consideration was reserved for the purpose of redemption of mortgage and the plaintiff was assigned the absolute right to redeem the same and obtain possession of the properties and SA 695 of 1997 : 14 : enjoy the same. After such recitals the 24 cents in the possession of the executant was sought to be conveyed. The said 24 cents of property described in the schedule was said to be without any encumbrance and was said to be described in the schedule. However, in the description of the property in the schedule of Ext.A2 the total of 38 cents of property was referred out of which the 14 cents with the shop rooms was indicated as being included in the schedule. That obviously, was a mistake. What was conveyed as described in the schedule was the 24 cents. The recitals with respect to the 14 cents and 24 cents are as follows in Ext.A3:- **“** മ�ല വ�വര�ച 1119ല� 717-ആ� നമര ഒറ�യ�ധ�രപ�ക�ര� ല�മ�ണത�ലന ല �ട"ത$ മ�ല വ�വര�ച �ത�ന��"ല&ന$ സ�� ഒഴ�ഞ" വ�ങ�ല �ള"നത�ന" മവണ� വക വച" �റ" ര-�� ഇര"�ത"� ന�ള�ത" ലര� � �റ" ര-�� �"പത"� ഉളലപലട അര4� ര-�� �"ന-റ"� മ�ല വ�വര�ച പ�ക�ര� �റ� മ6�ധ7ലപട$ �ട�കവ&$ത"വ�ല �ത�ന��"ല&ന" സ�� ട� ര�ജ� വ7വസ അന"&ര�ച"� ഇര"�ത�ന��" ല&ന$ സ�� ന�ള�ത" കകവശലപട "ത�യ"� തന�ര� "നത�ന�ല �ത�ന��"ല&ന$ സ�� ഒഴ�പ�ച "� മ�ല നമര ഒറ�യ�ധ�രത�ല� വ7വസ അന"&ര�ച"� നടന$ അന"ഭവ�ച" ലക�ള"നത�ന" &മത�ച "� **(emphasis supplied)** SA 695 of 1997 : 15 : �ട�കവ&$ത" ഞ�ന യ�ലത�ര "വ�ധ��യ 6�ദ7തയ�� "� മക�രട" ജ�$ത� ജ��7� �"ത��യ &ര �ര തടങ�"കള��"� ഉളലപട"കമയ� ഉളലപട "ത"കമയ� ല�യ$ത�ട�ല�ന$ &ത7ല�ന"റപ" �റഞ$ വ�ശB&�പ�ച "� **(emphasis supplied)** മ�ല നമര ഒറ�യ�ധ�ര� മക�രട�ല ഹ�ജ�ര� �യ�ര� "നത�ന�ല ഇലത�ന�ച" തര�ലതയ "� എഴ"ത�തന�ര� "ന" **''** Hence the equity of redemption(as per the first portion emphasis supplied) was conveyed and then the scheduled property which is encumbrance free(as per the second portion. Emphasis supplied). In the schedule what had to be included was 24 cents, but A3 included the 14 cents. By Ext.B1 the schedule in Ext.A3 was substituted. The substituted schedule referred to the 24 cents. Ext.B1 does not touch the assignment of the equity of redemption. As per the recitals Ext.B1 re-affirms it. 15. An obvious mistake was corrected by Ext.B1. A reading of Ext.B1 also would indicate that the earlier document dealt with assignment of the equity of redemption with respect to 14 cents and conveyance of 24 cents. It notices that by mistake the schedule incorporated 14 cents and that schedule was sought to be substituted by the one in Ext.B1. SA 695 of 1997 : 16 : On a reading of Ext.A3 and B1 together the schedule in Ext.A3 has to be ignored and it is to be considered as substituted by the schedule in Ext.B1. Then, what would come to fore, is the conclusion that, what was sought to be conveyed physically in which the executant retained physical possession was the 24 cents and also the equity of redemption with respect to 14 cents. The 24 cents was intended to be included in the schedule of Ext.A3 since that was free from encumbrance and in the possession of the executant. The 14 cents was not in the executants possession since it was outstanding on a mortgage. Equity of redemption was the right available to the executant and for assignment of such right, a schedule was thought to be not necessary. The absence of a schedule does not invalidate a document, if the recitals are clear and unambiguous. 16. The learned counsel for the appellant would contend that this Court exercising jurisdiction under Section 100 cannot enter into re-appreciation of evidence and come to the same conclusion as the trial court and the first appellate court on its own reasons. This Court exercising the jurisdiction under Section 100 would be primarily concerned with whether the conclusion of the lower courts are on a proper appreciation of the evidence. Whether any material evidence SA 695 of 1997 : 17 : was not considered would definitely confer power on this Court to unsettle the decisions rendered by the trial court. Looking at the order of the court below it cannot at all be gain said that there is such non consideration of relevant evidence. One other appealing consideration would be consideration of irrelevant material, which if eschewed, would lead to a totally different conclusion. That too, does not arise in the present case. The conclusion arrived at by the courts below on the findings entered into in the respective orders as also the construction of the documents Exts.A3 and B1 cannot at all be termed erroneous or perverse. No irrelevant material has been considered or relied upon by the Lower Courts. 17. The question of law raised with respect to the description of the property subsisting under a mortgage in the possession of the 3[rd] defendant being available in Exts.A3 and B1, is one arising on the facts and circumstances and on the construction of the document. The construction of the document attempted by the courts below cannot be said to be erroneous or perverse. By virtue of Ext.A2, A3 and B1 the only conclusion possible is that the 3[rd] defendant is in possession by virtue of Ext.A2 mortgage and the plaintiff on a correct construction of Exts.A3 and B1 is entitled to the equity SA 695 of 1997 : 18 : of redemption, of that property in the possession of 3[rd] defendant under Ext.A2. The question regarding value of improvements also does not arise for consideration since the same is based on the factual findings with reference to the commission reports filed before the court below. The judgments of the court below, hence, does not give rise to any substantial question of law. The Second Appeal, hence, is rejected with costs throughout. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge