Saradamani Amma @ Oma Amma v. Rajendran, Jayachandran and Radha Devi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932** **RSA.No. 448 of 2010()** **--------------------------------** **AS.35/2006 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.447/2001 of MUSNIFF COURT, ADOOR** **....................** ## **APPELLANTS/2ND & 3RD DEFENDANTS/ADDL.4TH DEFENDANT** **----------------------------------------------------------------------------------------------** **1. RAJENDRAN, S/O. NARAYANA PILLAI, SREEVIHAR, KURAMPALA MURI, KURAMPALA VILLAGE, ADOOR TALUK.** **2. JAYACHANDRAN, S/O. NARAYANA PILLAI, SREEVIHAR, KURAMPALA MURI, KURAMPALA VILLAGE, ADOOR TALUK.** **3. RADHADEVI,** - **SREEVIHAR, KURAMPALA MURI, KURAMPALA VILLAGE, ADOOR TALUK.** **BY ADV. SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH.** ## **RESPONDENT/PLAINTIFF** **-------------------------------------** **SARADAMANI AMMA @ OMANA AMMA, USHAS VEEDU, MAVELIKKARA MURI, MAVELIKKARA VILLAGE & TALUK.** ## **BY ADV. SRI.R.RAJASEKHARAN PILLAI.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING:** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 448 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010. ## **JUDGMENT** The defendants in O.S.447 of 2001 are the appellants. The parties and facts are herein after referred to as they are available before the trial court. 2. The suit was one for declaration of title, possession and for consequential reliefs. The plaintiff claimed that she obtained the plaint schedule property by virtue of Ext.A3 and also by the partition deed of 1973, i.e. Ext.A4. Ever since then, the property has been in her possession and enjoyment. The complaint was that on 25.10.2001, the defendants tried to trespass into the property and they had infact cut down a tree. The plaintiff apprehends further threat from the defendants and hence the suit. 3. The defendants resisted the suit. They admitted the sale deed and the partition deed relied on by the plaintiff. But according to them, possession of the 2 R.S.A.448/2010. property now claimed by the plaintiff was not obtained by her. The total extent of property now is only 23.12 cents and the rest has been lost for a road. According to the defendants, 50 cents of land, which includes the plaint schedule property originally belonged to one Karunakara Kurup. That property was mortgaged to one Krishna Pillai as per Ext.B1 document. The mortgage right was assigned in favour of the first defendant and his father Govinda Kurup as per document No.213/1124. In 1124 M.E. the property was orally partitioned between the first defendant and his father. As per the partition deed, 25 cents on the southern side of the 50 cents was taken by the first defendant and the northern side by his father. Boundaries were put up separating the two properties. While the mortgage was outstanding, the plaintiff purchased the property. She had not redeemed the mortgage. She has no possession over the suit property. It is also pointed out that the right of redemption has been lost by limitation. 3 R.S.A.448/2010. 4. The plaintiff seems to have filed a replication, wherein she has pointed out that mortgage money had been paid and Govinda Kurup and Narayana Kurup had handed over possession of the property and documents relating to the property to the plaintiff. The other contentions in the written statement were also denied. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and the documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants had D.W.1 examined and Exts.B1 to B5 marked. Exts. C1 and C2 are the commission report and mahazar. 6. On an evaluation of the evidence, the trial court found that the mortgage had been redeemed and the plaintiff had obtained possession of the property. It has also found that in the earlier partition deed in the family of the defendants, the suit property did not find a place and R.S.A.448/2010. 4 therefore the court below accepted the case of the plaintiff that she was in possession of the property and granted a decree in her favour. 7. The defendants took up the matter in appeal as A.S. 35 of 2006. The appellate court considered the entire evidence independently and came to the same conclusion as that of the trial court and the appeal was thus dismissed. 8. Learned counsel appearing for the appellants pointed out that the courts below were not justified in accepting the plea of redemption put forward by the plaintiff. There was nothing to show that the mortgage money had been paid and that there was no deed evidencing redemption. Attention was also drawn to the fact that in the plaint, as it originally stood, there was no whisper about the mortgage and after the contention regarding mortgage was taken in the written statement, a replication was filed. It is also contended that going by Section 60 of R.S.A.448/2010. 5 the Transfer of Property Act and Section 17 of the Registration Act unless there is a registered document, there cannot be a redemption of mortgage. 9. I am afraid, none of the contentions are tenable. The mortgage is admitted. But according to the plaintiff, it has been redeemed. The question that arises for consideration is whether it is necessary to execute a deed for redemption of mortgage and get it registered. Considerable reliance was placed on Section 60 of the Transfer of Property Act, which reads as follows: _“_ _**60. Right of mortgagor to redeem** .- At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgagemoney, to require the mortgagee (a) to deliver to the morgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and © at the cost of the mortgagor either to re-transfer the_ R.S.A.448/2010. 6 _mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:_ _Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court._ _The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption._ _Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.”_ R.S.A.448/2010. 7 Reliance was also placed on Section 17 of the Registration Act and it was contended that since the valuation of the property exceeds Rs.100/-, it is necessary to have a registered document evidencing redemption of mortgage. 10. On a reading of Section 60, it is seen that it does not mention as to when the redemption takes place. It enables the mortgagor to take the aid of the court for certain reliefs. The question as to when actually redemption occurs has considered in the decision reported in **Prithinath Singh v. Suraj Ahir** (AIR 1963 SC 1041). In the said decision it was held as follows: _“Further, the definition of usufructuary mortgage itself leads to the conclusion that the authority given to the mortgagee to remain in possession of the mortgaged property ceases when the mortgage money has been paid up. The usufructuary mortgage, by the terms of its definition, authorises the mortgagee to retain possession only until payment of the mortgage money, and to appropriate the rents and profits collected by him in lieu of interest or in payment_ R.S.A.448/2010. 8 _of the mortgage money, or partly in lieu of interest or partly in lieu of payment of the mortgage money. When the mortgage money has been paid up, no question of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise. It is clear therefore that on the payment of the mortgage money by the mortgagor to the mortgagee the mortgage comes to an end and the right of the mortgagee to remain in possession also comes to an end._ _............ ................_ _It is to be noted that these provisions do not state when a mortgage ceases to be a mortgage. They simply describe the right of a mortgagor to redeem. Now, what is this right of and, in what circumstances does it arise? The right arises on the principal money, payment of which is secured by the mortgaged deed, becoming due. The right entitles the mortgagor, on his paying of tendering to the mortgagee the mortgage money to ask him (i) to deliver to him the mortgage deed and other documents relating to the mortgaged property; (ii) to deliver possession to the mortgagor if the mortgagee is in_ R.S.A.448/2010. 9 _possession; and (iii) to re-transfer the mortgaged property in accordance with the desire of the mortgagor. If the mortgagee receives the money and does not perform any of the three acts required of him to be done, the question arises whether this non-compliance with the demands will make the mortgage continue. The provisions of the section do not say so and there appears no good reason why the mortgage should continue. If the mortgagee is not to perform these acts the mortgagor is not to pay the amount. If, however the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts he is bound do to, the mortgagor can enforce his right to get back the mortgage document, the possession of the mortgaged property and the re-conveyance of that property through Court. A new right to get his demands enforced through the Court thus arises as a result of the provisions of S.60 of the Act._ _If the mortgage money has been paid and then the mortgagor goes to Court to enforce his demands, that would not be to enforce his right to redemption which was really his right to make those demands on payment of the mortgage_ R.S.A.448/2010. 10 _money. The right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money. This is also clear from the decree for redemption. O.XXXIV, R.7 C.P.C. provides for the preliminary decree in a redemption suit and the preliminary decree is to order that the account be taken of what was due to the defendant, viz., the mortgagee, at the date of decree for principal and interest on the mortgage and other matters. R.9 provides that if on such accounting, any sum be found due to mortgagor, the decree would direct the mortgagee to pay such amount to the mortgagor. If the mortgage money due has been already paid by the mortgagor and has been accepted by the mortgagee in full discharge of the mortgage deed, no occasion for such accounting arises and therefore any suit to enforce the return of the mortgage deed and to get back the possession of the mortgaged property cannot be a suit for redemption.”_ R.S.A.448/2010. 11 The issue was considered in the decision reported in **Varghee Samuel v. Verkey Abraham** (1975 K.L.T. 372), wherein it was held as follows: _“In the case of a usufructuary mortgage with the payment of the mortgage money by the mortgagor the mortgage comes to an end and that cannot be said to exist thereafter though the mortgagee has to perform certain acts mentioned in S.60 of the Transfer of Property Act._ ” 11. In the light of the above decisions, it is clear that for redemption there need not be a registered document at all. The moment the mortgage money is paid, the redemption takes place. So the above contention has no basis at all. 12. There is nothing in law, which indicates that a registered deed is a must for redemption of the mortgage. It is interesting to note that in the case on hand the mortgage R.S.A.448/2010. 12 deed had been produced by the plaintiff. The lower appellate court has taken aid of Section 114(i) of the Indian Evidence Act, which reads as follows: _“S. 114(i). That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.”_ It was contended on behalf of the appellants that the said provision has application only in case of a bond and has no application to the facts of the case. 13. It is difficult to accept the above contention. There is nothing in the above provision, which shows that it confines to bonds and does not extend to any obligation that is cast on the obliger. It needs to be noticed that it was not solely on the basis of Section 114(i) of the Indian Evidence Act that the lower appellate court has come to the conclusion that the mortgage is redeemed. The documents produced by the plaintiff are sufficient to show that the mortgage money had been paid and property redeemed. R.S.A.448/2010. 13 Both the courts below found that the mortgage deed, which was executed in favour of the first defendant and Govinda Kurup had come into the possession of the plaintiff. 14. The lower appellate court has also noticed the fact that going by the terms of the mortgage deed, the tax was to be paid by the defendants. The lower courts found that there was no evidence of payment of tax by the defendants. But on the other hand, the plaintiff has produced documents to show that tax was paid by her. It is to be noticed that Ext.A6 is the partition deed in the family of the defendants. In the said document, there is no mention about the plaint schedule property. On the other hand, in the partition deed of the year 2001, the plaint schedule property finds a place. The courts below were inclined to take the view that that is deliberately introduced with a view to create documents to claim right over the suit property. R.S.A.448/2010. 14 15. Both the courts below on the basis of the claim came to the conclusion that the plaintiff has title and possession over the suit property and accordingly relief was granted. The findings are based on evidence on record and there is nothing to show that the conclusions drawn by the court below were either perverse or contrary to the evidence on record. There is nothing to show that the courts below have omitted to take into consideration the relevant facts and take note of irrelevant facts. No substantial question of law arises for consideration in this Second Appeal. This appeal is without merits and it is dismissed in limine. **P. BHAVADASAN, JUDGE** sb.