Ramakaimal Prabhakara Kaimal v. Gouriamma Bhageerathiamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 26TH DAY OF MAY 2017/5TH JYAISHTA, 1939** **SA.No.518 of 1996 ( )** **----------------------(AGAINST THE JUDGMENT IN AS 17/1990 of PRL.SUB COURT, KOTTAYAM, DATED 19-01-1995) & (AGAINST THE JUDGMENT IN OS 338/1986 of MUNSIFF COURT, VAIKOM, DATED 26-07-1990)** **APPELLANT/ 1[st] DEFENDANT:** **-----------------------** **RAMAKAIMAL PRABHAKARA KAIMAL, S/O. RAMAKAIMAL, TEACHER, RESIDING AT AMBADIYIL, NJEEZHOOR KARA, NJEEZHOOR VILLAGE.** **BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL** **RESPONDENT(S):** **--------------** **1. GOURIAMMA BHAGEERATHIAMMA, RESIDING AT KALERICAKAL HOUSE, NJEEZHOOR KARA, NJEEZHOOR VILLAGE.** **2. GOURIAMMA JANAKIAMMA, RESIDING AT SREEKRISHNAVILASAM, NJEEZHOOR MURI, NJEEZHOOR VILLAGE.** **3. BHAVANIAMMA, D/O.GOURIAMMA, RESIDING AT VADAKKEMATTATHIL, KADAPUR KARA, KANAKKARI VILLAGE.** **4. C.R.SUKUMARA KAIMAL, S/O.BHARATHIAMMA, RESIDING AT KALANILAYAM HOUSE, NJEEZHOOR VILLAGE.** **5. DIVAKARA KAIMAL, S/O.BHARATHIAMMA, RESIDING AT KALANILAYAM HOUSE, NJEEZHOOR VILLAGE.** **6. SUBHADRAKUTTYAMMA, D/O.PARAMESWARA KAIMAL, RESIDING AT KRISHNAVILASAM, NJEEZHOOR VILLAGE AND KARA.** **7. SAVITHRIKUTTYAMMA, D/O.PARAMESWARA KAIMAL, RESIDING AT KRISHNAVILASAM, NJEEZHOOR VILLAGE AND KARA.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2017, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **K.RAMAKRISHNAN,J.** ------------------------------------------------------S.A. No.518 of 1996 -------------------------------------------------------------Dated this the 26[th] day of May, 2017 ## **JUDGMENT** First defendant in O.S.No.338/1986 on the file of the Munsiff Court, Vaikam is the appellant herein. The suit was filed by the first respondent herein for redemption of mortgage and partition of the plaint schedule property and allotment of her share. The case of the plaintiff was that, 95 cents of property including the plaint schedule property originally belongs to Kalarickal Family and as per partition in the Kalarickal Family effected in the year 1089 ME and 1102 ME, the plaint schedule property along with other items was allotted to the sakha of deceased Ramakaimal, the father of the plaintiff and defendants. 95 cents of property was lying as 'nilam'. 95 cents including the plaint schedule property was mortgaged by Ramakaimal in favour of his son-in-law Narayana Kaimal for a sum of Rs.490/- in the year 1119, reserving the right to pay the mortgage debt within a period of 8 years. Said Narayana Kaimal assigned his mortgage right in 1120 in favour of his wife Janakiamma, who is the 4[th] defendant in the suit. Subsequently Janakiamma assigned the said right in favour of the first defendant in 1975. When the first defendant came to know about the purchase of the property by Chandramathiamma in 1972, he filed O.S.62/76 before Munsiff Court, Vaikam for a declaration of his _**S.A. No.518 of 1996**_ 2 mortgage right and that suit was decreed and hence the present suit is not barred by limitation. The jenmom right in respect of 95 cents was partitioned in 1121 ME and A-schedule was allotted to the share of deceased Ramakaimal. A-schedule includes the present plaint schedule property. Remaining 31½ cents was allotted to the sakha of Janakiamma. After the death of Janakiamma, her legal representatives assigned the jenmom right in favour of Parameswara Kaimal in 1962. Subsequently Parameswara Kaimal assigned the right in favour of Chandramathiamma in 1972. Chandramathiamma filed O.P.9/1976 to redeem her share and that was allowed. After the redemption of the share of Chandramathiamma, the remaining extent is shown as plaint schedule property. Plaintiff has got 1/6[th] share in the plaint schedule property, so she is entitled to get redemption and partition of the same. Hence the suit was filed for redemption of the mortgage right in respect of the plaintiff and also for partition and allotment of her 1/6[th] share. 2. The first defendant filed written statement contending that the suit is not maintainable, the suit is barred for partial partition. They admitted the derivation of title. It is also mentioned that at the time of assignment in his favour by document No.5176/75, his father 3 ## _**S.A. No.518 of 1996**_ intended to give the property for himself and so his sister also assigned the same. He admitted that there was a petition O.P.9/1976 filed by Chandramathiamma and that was allowed permitting her to redeem her share. The remaining property is in his possession and enjoyment as absolute owner and it is not liable to be redeemed. It is further contended that, if it is found that the mortgage is liable to be redeemed, he is entitled to get value of improvements. So he prayed for dismissal of the suit. 3. Defendants 2 and 4 filed written statement admitting the claim of the plaintiff and also expressing their willingness to pay the proportionate mortgage amount and they requested for separate allotment of their shares. 4. Others remains absent. 5. The plaintiff was examined as PW1. Exts.A1 and A2 were marked on her side. First defendant was examined as DW1 and two witnesses were examined as DWs 2 and 3. After considering the evidence on record, the trial court passed a preliminary decree for partition and separate allotment of 1/6[th] share of the plaintiff over the plaint schedule property and directed to deposit the share of the plaintiff, namely Rs.54.45 being the mortgage amount payable by her _**S.A. No.518 of 1996**_ 4 and on deposit of the above said amount, it was directed to partition the plaint schedule property into six equal shares and allotment of one such share to the plaintiff. After deposit of the redemption price, plaintiff will apply for passing a final decree within two months. Dissatisfied with the same, the first defendant filed A.S.255/90 before the District Court, Kottayam which was made over to Principal Sub Court, Kottayam for disposal where it was renumbered as A.S.17/1990. During the pendency of the appeal, the second respondent in the appeal died and his legal heirs were impleaded as additional respondents 6 and 7 as per order in I.A.No.4291/1992. Subsequently the additional respondents 8 and 9 were also impleaded as per order in I.A.No.1959/1993. After hearing both sides, the appellate court concurred with the finding of the court below and dismissed the appeal. Aggrieved by the same, the present second appeal has been preferred. 6. In the appeal memorandum, substantial question of law has been raised. _i. Whether finding of the suit is not barred by limitation is sustainable?_ _ii. Whether Exts.A1 and A2 satisfy the requirements of Section 19 of the Limitation Act and served as acknowledgment to extent the period of limitation?_ _**S.A. No.518 of 1996**_ 5 _iii. Whether the courts below were justified in granting a decree for redemption without the plaintiffs producing in court the mortgage deed which is sought to be redeemed?_ _iv. Is the court below justified in taking a term of 8 years is provided in the mortgage deed also in adding the said period of limitation without production of the document?_ _v. Are the courts below justified in holding that first defendant is in possession under the mortgage in the light of the evidence available in the case that the property has been conveyed to him with an intention that he should enjoy it absolutely?_ _vi. Whether the courts below have justified in negativing the plaint for value of improvements?_ 7. Heard Sri.P.G.Parameswara Panicker, senior counsel appearing for the appellant and Sri.Gopikrishnan Nambiar, counsel appearing for respondents 1, 4, 6 and 7. 8. Learned senior counsel appearing for the appellant submitted that, without producing the mortgage deed, the court below was not justified in taking the period of 8 years for payment of the amount provided in the mortgage deed and also calculating the period of limitation. Without producing the original mortgage deed, it will not be possible to ascertain as to when the mortgage deed was executed and what is the period of limitation for redeeming the mortgage. Further the court below was also not justified in taking Exts.A1 and A2 as admission provided under Section 19 of the Limitation Act to extend the period of limitation. The court below also was not justified in _**S.A. No.518 of 1996**_ 6 denying the value of improvements claimed. So according to the learned counsel, the courts below were not justified in decreeing the suit. Further the evidence will go to show that, when Rama Kaimal assigned the mortgage right, there was an intention to give the property to the first defendant to enjoy the same as his absolute property. It is irredeemable mortgage and he is entitled to get absolute right over the same and as such the courts below were not justified in decreeing the suit. 9. On the other hand, the learned counsel appearing for the respondents submitted that, there is an admission regarding the mortgage. Once the mortgage is admitted by the appellant in all the proceedings and he claims to be a mortgagee by virtue of getting a declaration in Ext.A2 suit and also suffering an order as per Ext.A1, he is estopped from contending that the suit is barred by limitation and he is the absolute owner of the property. Further no evidence was adduced on the side of the appellant to prove that he had effected improvements for getting value of improvements as claimed. According to him, this is concurrent finding and there is no question of law involved and no interference is called for. 10. On considering the submissions made, following the 7 ## _**S.A. No.518 of 1996**_ ## substantial question of law arise for consideration. _i. Whether the courts below were justified in holding that the suit is not barred by limitation?_ _ii. Whether the courts below were justified in decreeing the suit without production of the original mortgage deed by the parties?_ _iii. Whether the courts below were justified in denying the value of improvements to the appellant?_ 11. On going through the pleadings and also the admission of parties, there is no dispute regarding the fact that the property originally belonged to Rama Kaimal, which he obtained as per partition having an extent of 95 cents and it was mortgaged in favour of one Narayana Kaimal, who is none other than the son-in-law of said Rama Kaimal for an amount of Rs.490/- in the year 1119 and it is also not in dispute that said Narayana Kaimal assigned his right in favour of Janakiamma who is the fourth defendant herein, who later assigned that right in favour of the first defendant in 1975. It is also seen from the records that one Chandramathiamma got assignment from Parameswara Kaimal who is one of the legal heirs of Janakiamma. When first defendant came to know about the same, he filed Ext.A2 suit as O.S.62/1976 before the Munsiff Court, Vaikam, for declaration of his mortgage right showing all the parties and also the said Chandramathiamma and that suit was decreed stating that he is the _**S.A. No.518 of 1996**_ 8 mortgagee in respect of 95 cents of land on the basis of the mortgage executed by Rama Kaimal, the predecessor of the plaintiffs and defendants. It is also not in dispute that the said Chandramathiamma filed O.P.9/1976 before the Munsiff Court, Vaikam for redemption of her 1/3[rd] right in the mortgage and possession and that was ordered as per Ext.A1. In both Exts.A1 and A2, first defendant contended that he is a mortgagee as he obtained the mortgage right by way of assignment deeds. So he is admitting the fact of existence of mortgage liability in the year 1976 and the mortgage right in respect of Chandramathiamma was permitted to be redeemed and she got her 1/3[rd] right out of 95 cents evidenced by Ext.A1. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the first appellant cannot claim any exclusive right over the property as he himself was admitted the existence of mortgage in respect of the property even in the year 1976. 12. Further the lower appellate court had relied on the decision in _**Kunjan Govindan v. Bhagavathi Lakshmi**_ (1958 KLT 328), for the preposition that when the integrity of mortgage is broken by the mortgagee acquiring a share in the equity of redemption, the plaintiff who owns only a share is entitled to redeem only his share and no 9 ## _**S.A. No.518 of 1996**_ more. Since the first defendant had obtained the mortgage right, who is also one of the co-owner and by virtue of purchase, the integrity of the mortgage has been broken, then other co-owners can only get equity of redemption in respect of their share alone. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the plaintiff is perfectly justified in asking for redemption of 2/3[rd] right in the mortgage as 1/3[rd] mortgage right has already been redeemed and possession has been given in respect of that portion as per Ext.A1. 13. Further in all these proceedings, since the mortgage has been admitted, non-production of the original mortgage deed is not fatal as there is no necessity to prove the recitals in the document as well. Further the first defendant is claiming right on the basis of assignee of a mortgagee. So under such circumstances, he will be in possession of that document and if he wants to prove that suit is barred by limitation, the burden is on him to produce that document and prove that the suit is filed out of time, that has not been done. Further, once there is existence of mortgage, even in the year 1976, is admitted, then the period of limitation can be extended by virtue of Section 19 of the Limitation Act and that benefit must be given to the _**S.A. No.518 of 1996**_ 10 mortgagor to file the suit within the extended time provided from that day onwards. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the suit is not barred by limitation and it is perfectly within time and rightly decreed the suit permitting the plaintiff to redeem the mortgage of her share and directed to deposit the amount and on deposit directing the plaint schedule property to be divided into six equal shares and allotment of such share to the plaintiff. 14. As regards the value of improvements is concerned, though the appellant had taken out a commission, the commissioner could not execute the work as he did not co-operate. Further it will be seen from Ext.A1 judgment that in O.P.9/1976, though he claimed value of improvements, it was specifically found that he is not entitled to get value of improvements and that was rejected. In this case also, there was no evidence adduced on the side of the first defendant to prove that he had effected valuable improvements and courts below were perfectly justified in rejecting that claim. In view of the discussions made above, this court is of the view that the courts below were perfectly justified in coming to the conclusion that the suit is not barred by limitation and non-production 11 ## _**S.A. No.518 of 1996**_ of the original mortgage deed is not fatal in view of the admissions made by the first defendant regarding the existence of mortgage and suffering of orders in respect of that mortgage in previous proceedings and the courts below were also perfectly justified in decreeing the suit as prayed for by the plaintiff, rejecting the claim for value of improvements as well. This court do not find any merit in the appeal and the same is hereby dismissed. In the result, Second Appeal fails and the same is hereby dismissed. Considering the circumstances of the case, the parties are directed to bear their respective costs in the appeal. _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// _P.A. to Judge_ ss