K.G. Purushothaman Nair v. K.G.Komalavallyamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937** ## **RSA.No. 1146 of 2009 (C)** **-------------------------** **(AS.NO. 36/2006 OF SUB COURT, PALA)** **(OS.NO. 23/2003 OF MUNSIF COURT, KANJIRAPPALLY)** **-------------------** ## **APPELLANT/3RD RESPONDENT/3RD DEFENDANT:** **-------------------------------------------------------------------------** **K.G.PURUSHOTHAMAN NAIR, AGED 63 YEARS, KEECHERI HOUSE, THAMPALAKKADU KARA, KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.M.NARENDRA KUMAR** **RESPONDENTS/APPELLANT AND RESPONDENTS 2,4,5,6 & 7/ PLAINTIFF & DEFENDANTS 2 & 4:** **----------------------------------------------------------------------------------------** **1. K.G.KOMALAVALLYAMMA, AGED 65 , W/O.VASUDEVAN NAIR, LAL SADANAM,** **VADAKKUMBHAGOM MURI, CHIRAKKADAVU VILLAGE.** **2. K.G.SREENIVASAN NAIR, AGED 71 YEARS, KEECHERI HOUSE, THAMPALAKKADU KARA,** **KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK.** **3. K.G.RADHAMANIAMMA, AGED 57 YEARS, W/O.GOPALAKRISHNA KURUP, PUTHENMADOM HOUSE,** **NARAKATHARA P.O., KRISHNAPURAM VILLAGE, ALAPPUZHA VILLAGE.** ## ***4. E.BALAMANIAMMA, (DIED),** - **D/O.G.GOPALAKRISHNAN NAIR,VIPANCHIKA, KATTACKAL, VAZHOTTUKONAM, VALLIYOOR KARA, THIRIVANANTHAPURAM. (LEGAL HEIRS ARE IMPLEADED AS ADDL.R7 TO R9)** **5. G.VENUGOPAL, AGED 47 YEARS, S/O.K.G.GOPALAKRISHNAN NAIR, AMBATTUPARAMBIL, MUTTEMBALAM, KANJIKUZHY, KOTTAYAM.** **6. SANKARLAL, S/O.K.G.GOPALAKRISHNAN NAIR, AMBATTUPARAMBIL, MUTTEMBALAM, KANJIKUZHY, KOTTAYAM.** **2/-** **sts** **-2-** **R.S.A.NO.1146/2009** ## ***ADDL.R7 TO R9 ARE IMPLEADED** ## **ADDL.R7: SOMASEKHARAN NAIR, SYLVAM HEIGHTS, ELEVANNON ROAD, COCHIN.** ## ***ADDL.R8: ARUN.S., FLAT 4F, SYLVAM HEIGHTS,** **ELEVANNON ROAD, COCHIN.** ## ***ADDL.R9: AMBILI S. NAIR, FLAT 4F, SYLVAM HEIGHTS, ELEVANNON ROAD, COCHIN.** ***LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 7 TO 9 AS PER THE ORDER DATED 02/03/15 IN IA.NO.457/13.** **R1 BY ADV. SRI.RAJEEV V.KURUP** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2016 , THE COURT ON 23-02-2016 DELIVERED THE FOLLOWING:** **sts** **C.R.** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **R.S.A. No.1146 of 2009** ## **----------------------------------------------Dated 23[rd] February, 2016.** ## **J U D G M E N T** The third defendant in a suit for partition is the appellant. 2. The suit property belonged to one Kesavan Nair. He mortgaged the same to one Gopalan Nair. Ext.B1 is the mortgage deed. While Ext.B1 mortgage was outstanding, Kesavan Nair assigned the property to Parukutty Amma. Parukutty Amma was none other than the wife of Gopalan Nair. The plaintiff and the defendants are the children of Gopalan Nair and Parukutty Amma. According to the plaintiff, Ext.B1 mortgage was not redeemed and as such, the suit property is liable to be partitioned as a property owned by Gopalan Nair. The plaintiff claimed 1/6 share over the suit property on that basis. The defendants 1, 2 and 4 remained ex parte. The third defendant resisted the suit. According to the third defendant, RSA No.1146 of 2009 2 Parukutty Amma redeemed the mortgage on 15.2.1974 and thus, she became the absolute owner of the property. He also contended that later on 23.5.2001, Parukutty Amma bequeathed the suit property to him. As such, according to the third defendant, on the death of Parukutty Amma, he became the absolute owner of the suit property. 3. The trial court found that Ext.B1 mortgage was redeemed by Parukutty Amma as contended by the third defendant and that Parukutty Amma had bequeathed the suit property thereafter to the third defendant. In the light of the said findings, the plaintiff was non-suited. The plaintiff took up the matter in appeal. The appellate court, however, reversed the decision of the trial court and decreed the suit as prayed for holding that the third defendant has not established that Ext.B1 mortgage has been redeemed by Parukutty Amma. The third defendant is aggrieved by the said decision of the appellate court and hence this second appeal. 4. Heard the learned counsel for the appellant as also the learned counsel for the first respondent. RSA No.1146 of 2009 3 5. Ext.B1 is a registered mortgage. Ext.B4 is the document relied on by the third defendant to establish that Ext.B1 mortgage has been redeemed by Parukutty Amma. Ext.B4 is a receipt issued by Gopalan Nair to Parukutty Amma. Ext.B4 is an unregistered document. In Ext.B4, it is recited that Gopalan Nair has received a sum of Rs.2,500/- from Parukutty Amma towards the amounts due under Ext.B1 mortgage. Ext.B4 also recites that the original mortgage deed as also the possession of the mortgaged property have been returned to Parukutty Amma. While the trial court accepted Ext.B4 as evidence to prove the redemption of Ext.B1 mortgage, the appellate court took the view that Ext.B4 receipt being an unregistered document, cannot be accepted as evidence to prove the redemption of Ext.B1 mortgage. The question arising for consideration is, therefore, whether an unregistered receipt in the nature of Ext.B4 can be accepted as evidence to prove the redemption of a registered mortgage. 6. Section 17(1)(b) and (c) of the Registration Act which are the relevant statutory provisions read as follows: RSA No.1146 of 2009 4 “17. **Documents of which registration is compulsory** :- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:- (a) xxx xxx; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and **==> picture [103 x 29] intentionally omitted <==** Going by the provisions contained in Section 17(1)(b) and (c) of the Registration Act, non-testamentary instruments which purport or operate to extinguish any right, title or interest in immovable property of the value of one hundred rupees and upwards are compulsorily registrable. Section 49 of the Registration Act provides that no document required by Section RSA No.1146 of 2009 5 17 of the said Act to be registered shall be received as evidence of any transaction affecting such property unless it has been registered. It is thus evident that Ext.B4 cannot be accepted in evidence to prove the redemption of Ext.B1 mortgage. 7. The learned counsel for the appellant contended that Ext.B4 is only a receipt for payment of money due under the mortgage and therefore, the same is exempted from registration under Section 17(2)(xi) of the Registration Act. Section 17(2)(xi) of the Registration Act reads thus: “17(2) Nothing in clauses (b) and (c) of sub-section (1) applies to-- **==> picture [58 x 25] intentionally omitted <==** - (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or x x x x x x RSA No.1146 of 2009 6 It is evident from the aforesaid provision that a receipt for payment of mortgage money is exempted from registration when it does not purport to extinguish the mortgage. The question therefore, is as to whether Ext.B4 receipt purports to extinguish Ext.B1 mortgage. The essence of redemption is cancellation and return of the mortgage deed or where the mortgagee is in possession, restoration of possession of the mortgaged property to the mortgagor. As such, if the receipt recites that the possession of the property has been given back, the receipt cannot be admitted in evidence to prove redemption, if it is unregistered as it is not a mere receipt, but a document evidencing redemption. [See **Gurdial Singh Kehar Singh v. Kartar Singh** (AIR 1964 Punjab 141), **Kundan Singh v. Fauja Singh** (AIR 1979 P & H 212) and **Koushal Kishore v. Krishnakant Chaturvedi** (2009(4) MP Law Journal 698)]. As far as the present case is concerned, as noted above, Ext.B4 recites that Gopalan Nair has received a sum of Rs.2,500/- from Parukutty Amma towards the amounts due under Ext.B1 mortgage. The said receipt also recites that the original RSA No.1146 of 2009 7 mortgage deed as also the possession of the mortgaged property have been returned to Parukutty Amma. It is therefore, clear that the said document has been created to evidence redemption of Ext.B1 mortgage. I have, therefore, no hesitation to hold that a document in the nature of Ext.B4 cannot be admitted in evidence to prove the redemption of a registered mortgage. The view taken by the appellate court, in the circumstances, is perfectly in order. The second appeal is devoid of merits and the same is, accordingly, dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)