Cherot Udayabhanu v. Thirathinnil Padanayil Moideen Koya

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 SA.No. 228 of 2000(B) --------------------OS.686/1994 of ADDL.M.C.,KOZHIKODE-I AS.118/1997 of II ADDL.SUB COURT,KOZHIKODE .................... ## APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------------- CHEROT UDAYABHANU S/O.PADMANABHAN, AGED 43 YEARS KATCHERY AMSOM, KURUMBRAKATTSSERY DESOM KOZHIKODE TALUK BY ADV. SRI.O.RAMACHANDRAN NAMBIAR C.R SARADAMANI ## RESPONDENT/RESPONDENT/DEFENDANT ------------------------------------------------------------- THIRATHINNIL PADANAYIL MOIDEEN KOYA AGED 45 YEARS, S/O.BEERAN KUTTY KALATHINKUNNU AMSOM & DESOM KOZHIKODE TALUK ADV. SRI.K.A.SALIL NARAYANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------SA No.228 of 2000 ------------------------------------Dated this the 27[th] day of July 2011 ## Judgment The plaintiff, who was non-suited by the courts below, is the appellant. 2. The suit was one for redemption of mortgage. According to the plaintiff, the defendant was inducted into possession on the basis of Ext.A1 mortgage deed and after the period of mortgage, redemption was sought. 3. The defendant resisted the suit pointing out that the document by which he was inducted into possession is, in fact, a lease deed and not a mortgage deed. He, being an illiterate person, had signed on a document brought by the plaintiff and he was given the impression that he was taking the premises on a lease arrangement. This was his short contention in the written statement. SA 228/00 2 4. On the basis of the above pleadings necessary issues were raised by the trial court. The evidence consists of the testimony of documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant examined himself as DW1. 5. The trial court, on an evaluation of the evidence, came to the conclusion that Ext.A1 is a disguised lease and accordingly held that the defendant is a tenant under the plaintiff and the defendant can be evicted only by taking recourse to the provisions of Act 2 of 1965. 6. The plaintiff challenged the decree dismissing the suit before the Sub Court, Kozhikode. The lower appellate court found that the document on the basis of which the suit was laid, was not proved and there was nothing to show that the defendant was holding a document on which reliance was placed by the plaintiff. Accordingly, the appeal was also dismissed. Hence the second appeal. SA 228/00 3 7. Notice is seen issued on the following questions of law raised in the second appeal : - 1.Whether on the facts and circumstances of the case, the finding of court below that Ext.A1 is not admissible in evidence is sustainable ? - 2.Whether on the facts and circumstances of the case, the finding that Ext.A1 is a lease deed and not a mortgage deed is sustainable ? - 3.Whether defendant can vary or add the contents of Ext.A1 by adducing oral evidence ? - 4.Whether the finding that the plaintiff is not entitled to redeem and recover possession of property is sustainable ? - 5.Whether the judgment and decree o the court below is sustainable ? 8. The learned counsel appearing for the appellant pointed out that both the courts below have erred in law in holding that the transaction in dispute is a lease. It is contended that the document involved in the suit has SA 228/00 4 the characteristics of both usufructuary mortgage and simple mortgage and it is, in fact, an anomalous mortgage. The terms of the deed are clear to the effect that a mortgage was created and the defendant was put in possession as mortgagee. The learned counsel relied on the decision in _**Hathika v. Padmanabhan**_ (1994(1) KLT 345) in support of his contention that a similar document has been construed in the said decision and it has been held that the transaction is a mortgage. Reliance was also placed on the decision in _**Rayankutty v. Saidalavi**_ (2001 (2) KLT SN 19) wherein it is held as follows : “Another argument advanced by th appellants is that the amount of mortgage shown in the mortgage deed is disproportionate to the value of property. Regarding the value of property, there is no reliable evidence on record. Moreover, it is seen from Ext.B1 that the value of 8 items is only Rs.100/-. Therefore, the SA 228/00 5 argument that the consideration is disproportionate to the value of property also has no merit. Even if it is assumed that the mortgage amount is disproportionate to the value of property, that will not make the transaction a lease. This court in the decision reported in kunhiparan v. Venkiteswara Naicken (1967 KLT 646 FB) held that the real test is whether the transfer was intended by the parties for the enjoyment of the property by the transferees or whether it was intended solely to secure the amount advanced by him.” The learned counsel also relied on the decision in _**Raman**_ _**Pillai v. Gowri Pillai**_ (AIR 1954 TC 7) wherein it was held as follows : “A mortgage need not necessarily be for the purpose of securing payment of money advanced as a loan. It may be for securing 'performance of an engagement which may give SA 228/00 6 rise to a pecuniary liability'. When the mortgagor authorises the to remain in possession of the property until payment of the mortgage money, the transaction amounts to a usufructuary mortgage.” 9. The learned counsel pointed out that on a fair reading of Ext.A1 document, it can be easily seen that it could not be construed as a lease deed and it can only be treated as an anomalous mortgage. None of the decisions which are relied on by the trial court to come to the conclusion that the transaction is a lease, is consistent with the terms of a mortgage deed. The learned counsel drew attention of this court to the fact that an identical instrument had come up for consideration in the decision in Hathika v. Padmanabhan (supra). It was, therefore, contended that the courts below were not justified in non-suiting the plaintiff. 10. The learned counsel for the respondent, on the other hand, pointed out that it is significant to notice SA 228/00 7 that in the written statement, the defendant had specifically denied the execution of Ext.A1 document. He pointed out that he was under the bona fide belief that he was holding the property under a lease arrangement and it was without knowing the contents of the document that he had put his signature on Ext.A1 which was brought by the plaintiff. He also contended that he was paying a monthly rent of Rs.125/- and he is a tenant of the building. The defendant had adduced evidence in support of his case. The learned counsel pointed out that in spite of his specific contentions in the written statement, the plaintiff chose not to go into the Box and also did not produce the certified copy of the document relied on by him. What is produced is a xerox copy of the alleged mortgage deed. Even assuming that the admissibility of the document cannot be now questioned, according to the learned counsel, the document is not proved in accordance with law and therefore, the lower appellate court was perfectly justified in holding against the plaintiff. SA 228/00 8 11. It is true that in the decision reported in _**Hathika v. Padmanabhan**_ (supra) an identical document had come up for consideration. After referring to the various decisions on the point and also the law involved, this court had occasion to hold that the document is an anomalous mortgage and it cannot be treated as a lease deed. However, it needs to be noticed that the defendant in the case on hand had specifically disputed the execution of Ext.A1. He had given evidence also in that regard. For reasons best known to the plaintiff, he chose not to enter the Box and depose to his case. The result is that the evidence adduced by the defendants stand unchallenged. It is true that the document having been admitted, its admissibility cannot be questioned. Admissibility and proof of document are two different things. The appellant would say that the execution of the document is admitted and therefore, it cannot be challenged. But, as rightly noticed by the lower appellate court, there is no proof of the transaction as claimed by the plaintiff. SA 228/00 9 12. It was under these circumstances that the lower appellate court was constrained to take the view that the defendant in the suit can be treated as only a tenant under the plaintiff and the plaintiff can obtain eviction of the defendant only by invoking the provisions of Act 2 of 1965. The plaintiff offered no explanation for not producing the original or even a certified copy of Ext.A1. He only produced a xerox copy of the document. Since the contents were disputed, the burden was on the plaintiff to prove his case. Even assuming that the trial court has fallen into error in construing the deed, the reasons given by the lower appellate court for non-suiting the plaintiff cannot be faulted. 13. Faced with this situation, the learned counsel for the appellant pointed out that the matter may be remanded to the trial court in order to enable him to adduce further evidence in support of his case. 14. One has to notice that the suit is of the year 1994 and 17 years have elapsed. Moreover, it is not as if SA 228/00 10 the plaintiff was taken by surprise. In the written statement, the defendant had specifically contended that he is not a mortgagee and that he was holding the property under a lease arrangement. He has categorically stated that he was paying an amount of Rs.125/- per month as rent for the building and that the transaction is not a mortgage. In spite of this definite contention, the plaintiff has chosen to remain away from the Box and so, it could not be said that he was deprived of an opportunity to prove his case. Further, another significant aspect is that the original of the mortgage deed is not seen produced. Even assuming that it was with the mortgagee, nothing prevented the plaintiff from obtaining a certified copy of the same and producing the same before court. Whatever that be, now that the document has been admitted in evidence, this aspect may not assume much significance. However, as rightly noticed by the lower appellate court, the document is not proved and it is felt that at this distance of time, the remand of the matter to fill up a lacuna will be causing considerable injury SA 228/00 11 to the defendant. Moreover, the plaintiff has got an efficacious remedy by taking recourse to the provisions of Act 2 of 1965 to seek eviction of the defendant. The findings of the courts below are based on appreciation of evidence in the case and are pure questions of fact. No substantial questions arise for consideration in the second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. No order as to costs. ## **P.Bhavadasan, Judge** sta SA 228/00 12