Legal heirs of the first defendant, defendants 2 and 3 v. Mytheen Picha Mohammed Kasim

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 SA.No. 149 of 1995() - -------------------- AS.40/1990 of ADDL.SUB COURT,ATTINGAL OS.464/1986 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... ## APPELLANTS/APPELLANTS/DEFENDANTS: ----------------------------------------------- 1. NARAYANI AMMA MEENAKSHY AMMA, PINARUMOODU VEEDU, TEEPPUKAL MURI, MANICKAL VILLAGE. 2. GANGADHARAN PILLAI DAMODARAN NAIR OF -DO- -DO- 3. G.VELAYUDHAN NAIR, OF -DO- -DO- - BY ADV. SRI.B.KRISHNA MANI SRI.V.PREMCHAND ## RESPONDENT/RESPONDENT/ PLAINTIFF: --------------------------------------------- MYTHEEN PICHA MOHAMMED KASIM, SIYED MANZIL, OZHUKUPARA, TEEPUKAL MURI, MANICKAL VILLAGE. BY ADV. SRI.R.S.KALKURA SRI.G.S.REGHUNATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.454/95 IN SA 149/95 ## DISMISSED 17/3/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. ## **M.SASIDHARAN NAMBIAR,J.** -----------------------------------------S.A .NO.149 OF 1995 -----------------------------------------Dated 17[th] March 2008 ## **J U D G M E N T** Legal heirs of first defendant, defendants 2 ad 3 in O.S.464/1986 on the file of Munsiff court, Nedumangad are the appellants. Respondent is the plaintiff. Respondent instituted the suit for redemption of Ext.A3 mortgage against first appellant who was the sole defendant. When she filed written statement contending that Ext.A3 is a fraudulent document created without her knowledge and she is not a mortgage and plaint schedule property is in the possession of her children pursuant to a partition deed entered in their thavazhy, respondent got the plaint amended for declaration of the title to plaint schedule property and for recovery of possession after redemption of Ext.A3 mortgage. Appellants were impleaded as additional defendants. Case of the respondent was that plaint schedule property having an extent of 19 cents in survey No.2907/4 of Vanickal village originally belonged to his father and father SA 149/95 2 executed Ext.A1 settlement deed dated 10/12/1975 whereunder item No.2 is the plaint schedule property and respondent has title to the plaint schedule property. It was contended that thereafter on 20/12/1975 she mortgaged the plaint schedule property after receiving a mortgage money of Rs.100/- in favour of first defendant under Ext.A3 deed No.2841/1975 and first appellant is in possession of the property as a mortgagee and he is entitled for redemption and recovery of possession on deposit of mortgage money. After defendants 2 and 3 were impleaded it was contended that they did not have any right or title to the property and they are in possession of the property under the first defendant mortgagee and respondent is entitled to a decree for declaration of title and redemption and recovery of possession. First defendant in the original written statement contended that plaint schedule property originally belonged to the sakha of first appellant and as per partition deed of 1104 the properties were divided and subsequently as per another partition deed of 1107 properties were again divided and plaint schedule property was allotted to the share of first defendant and thereafter in 1976 under Ext.B1 partition deed, properties were given to her children SA 149/95 3 the appellants and they are in possession of the property and they are necessary parties and as there is no mortgage respondent is not entitled to the decree sought for. Appellants filed a written statement reiterating the contentions raised by the first defendant. According to them first defendant obtained the property as per registered partition deed of 1117 and thereafter in 1976 under Ext.B1 the properties were divided and 16½ cents was allotted to the share of the appellants and they were in possession of the property and respondent has no manner of right and title to the property and he is not entitled to the decree for redemption or recovery of possession. It was contended that Ext.A3 was created fraudulently to claim the property of the appellants. 2. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 and 2, Exts.A1 to A7, B1 to B5 upheld Ext.A3 mortgage relying on the evidence of PW1, the respondent and PW2, a witness to Ext.A3. Learned Munsiff further found that though appellant claimed right under Ext.A4 partition deed of 1117, it does not show the old survey number 2907/4 or that the property belonged to first defendant and based on Ext.A2, extract of the land tax register it was found that plaint schedule property SA 149/95 4 belongs to the respondent and as the property was mortgaged under Ext.A3, respondent is entitled to a decree for redemption of Ext.A3 mortgage and recovery of possession. The suit was decreed. Appellant challenged the judgment before Sub court, Attingal in A.S.40/1990. Learned Sub Judge without much discussion of the respective cases or the points involved upheld the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating following substantial questions of law. 4. Learned counsel appearing for appellants and respondents were heard. Argument of the learned counsel appearing for appellants is that there is no evidence to prove that Ext.A3 mortgage deed was executed with the knowledge or consent of the first appellant or that first appellant accepted Ext.A3 or has been in possession of the property as a mortgagee and relying on the evidence of Pws.1 and 2 courts below should not have found that appellants are in possession of the plaint schedule property as mortgagee under Ext.A3. It was argued that though respondent claimed title to the plaint schedule property under Ext.A1, father of the respondent obtained SA 149/95 5 the property as per a partition deed of 1104 which was not produced and based on Ext.A1 courts below should not have granted a decree in favour of the respondent. Learned counsel also argued that Ext.A3 does not show that plaint schedule property was given as security and instead it is given for enjoyment. Relying on the decision of the Full Bench of this court in **Velayudhan Vivekanandan v. Ayyappan Sadasivan (1975 KLT (1)** it was argued that Ext.A3 cannot be a mortgage and based on Ext.A3 a decree should not have been granted. 5. Learned counsel appearing for respondents argued that though appellants claimed title to the property based on partition deed of 1104 that partition deed was not produced and even Ext.A4 partition deed was produced by the respondent and not appellant and Ext.A4 does not establish title of first appellant so as to divide the property under Ext.B1 subsequently and finding of courts below that appellants have no title to the property is perfectly correct. It was argued by the evidence of Pws.1 and 2, Ext.A3 mortgage was proved and but for Ext.A3 appellants could not have been in possession of the plaint schedule property and courts below rightly granted the decree and in any case after the amendment of the plaint SA 149/95 6 when the suit is based on title, even if Ext.A3 mortgage was not acted upon, based on title respondent is entitled to decree for recovery of possession. 6. Ext.A3 is a registered mortgage deed executed on 20/12/1975. Executent is the respondent. He is referred as the mortgagor. First appellant is referred as the mortgagee. What is stated in Ext.A3 is that plaint schedule property belong to the father of respondent and it was settled in his name under Ext.A1 settlement deed and receiving Rs.100/- as mortgage money a mortgage is created providing that first appellant is to enjoy the property and pay basic tax and has to surrender possession when the property is redeemed. First appellant in her written statement contended that Ext.A3 is a fraudulent document created by the respondent to claim her property. It was contended that she was not aware of the execution of Ext.A3 mortgage and she is not the mortgagee. Mere execution of Ext.A3 by itself will not establish the mortgagor-mortgagee relationship. When presence of the mortgagee is not necessary to execute a mortgage deed and mortgagor can execute a mortgage deed unilaterally, it is possible to execute a mortgage deed without the knowledge of the alleged mortgagee. When it was specifically SA 149/95 7 contended that the mortgage deed was not executed with the consent or permission or knowledge of the alleged mortgagee, in addition to the execution of mortgage deed plaintiff has to prove that the mortgage was accepted by the mortgagee and the mortgage deed was acted upon. Though PW2 was examined, evidence of PW2 do not establish that Ext.A3 mortgage was accepted by the mortgagee. Ext.A3 does not show that mortgage money was received by the first appellant in the presence of Sub Registrar. It only shows that mortgage money of Rs.100/- was paid by the respondent and received by the alleged mortgagor. There is no evidence apart from the recitals and interested version of PW1, which was denied by first appellant, that Rs.100/- was received as mortgage money. When the question is whether the mortgage deed was executed with the knowledge and consent of the first appellant, the alleged mortgagee and whether mortgage was acted upon, question of original of Ext.A3 assumes importance. Though PW1 deposed that he is not aware of the custody of the original mortgage deed, Ext.A3 contains an endorsement of the Sub Registrar to the effect that the original mortgage deed was taken back by the person who produced it before the Sub Registrar. Ext.A3 shows that it was produced by the SA 149/95 8 respondent mortgagor. But evidence of PW1 was that it was produced for registration by his father. Even if it be so, it could have been taken only by the father of the respondent. At any rate, it cannot be by the first appellant. In cross examination an attempt was made to clarify that aspect showing that when a document is registered, a receipt will be issued to the executent and that will be entrusted with the document writer who will take back the document and hand it over to the concerned party. There is no evidence to prove that it was the document writer who received the original of Ext.A3 from the registrar’s office much less that it was handed over to the first appellant. PW1 specifically deposed that he did not hand over original of Ext.A1 to first appellant. If that be so, on the evidence it cannot be said that Ext.A3 mortgage was executed with the knowledge of first appellant or that it was accepted by the first appellant or that it was acted upon. Unfortunately this aspect was not properly considered by both the courts below. If that be so, based on Ext.A3 a decree for redemption and recovery of possession cannot be granted in favour of the respondent as has been done by the courts below. 7. When first appellant denied the mortgage and her SA 149/95 9 status as a mortgagee, plaint was amended claiming declaration of title to plaint schedule property and for recovery of possession. Though learned counsel appearing for appellants argued that recovery of possession is only claimed on redemption and recovery of possession was not based on title, I cannot agree with the submission. What was sought for after amendment is recovery of possession based on title. If that be so, if respondent has title to the plaint schedule property and appellants have no better title she is entitled to get recovery of possession on the strength of title. 8. Question is whether appellants establish bettered title to plaint schedule property. Title relied on in Ext.A3 is the title obtained under Ext.A1 . When the appellants specifically disputed the title of the respondent as well as his father, it is incumbent upon the respondent not only to prove the title under Ext.A1 but the anterior title deed by which father of the respondent obtained the property. Ext.A1 shows that title to the property was obtained under registered partition deed of 1913/1104. That partition deed was not produced. Similarly, appellants claimed title to the property based on registered partition deed of 1104. What SA 149/95 10 was contended by the appellants was that in that partition deed the property was alloted to the sakha of first appellant and thereafter under Ext.A4 it was divided and 16½ cents was allotted to the share of first appellant which was subsequently divided under Ext.B1 partition deed. Therefore by Ext.A4 alone title of the sakha first appellant cannot be decided, without producing the anterior title deed. Unfortunately, anterior title deeds of both appellants and respondent were not produced. Therefore, based on Ext.A1 or Ext.A4 alone, question of title cannot be decided. Though learned counsel appearing for respondent argued that Ext.A2 shows that 19 cents in survey No.2907/4 belongs to the father of the respondent and he has title, Ext.A2 is not a title deed and based on Ext.A2 it cannot be found that father of respondent has title to the plaint schedule property. It is only an extract of the tax register and it only shows that the tax for 19 cents in survey No.2907/4 was being collected from the father of the respondent. When the title claimed under Ext.A1 is based on a registered partition deed of 1104, without production of that title deed, question of title cannot be decided. In such circumstance, it is necessary to remand the suit to the trial court for fresh disposal SA 149/95 11 in accordance with the law for deciding the question of title. 9. Appeal allowed. Judgment of the courts below are set aside. O.S.464/1986 is remanded to additional Munsiff court, Nedumangad for fresh disposal. Trial court is directed to grant opportunity to the parties to produce title deed and also adduce further evidence in support of the title deed, if they so wish. Learned Munsiff is to decide whether plaint schedule property belongs to the father of the respondent as claimed by the respondent or belongs to sakha of first appellant. Parties are directed to appear before the learned Munsiff on 10/4/2008. Learned Munsiff is directed to dispose the suit expeditiously, at any rate, within eight months from the date of receipt of the records. Sent back the records immediately. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 149/95 12 ============================= M.SASIDHARAN NAMBIAR,J. ## **JUDGMENT** S.A.NO.149 OF 1995 17[th] March 2008 ============================