Palaniammal v. Ramalakshmi

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.07.2018

CORAM:

THE HONOURABLE MR.JUSTICE S.S.SUNDAR S.A.(MD)No.63 of 2013 and M.P.(MD)No.1 of 2013 Palaniammal ... Appellant/Appellant/Defendant -Vs1.Ramalakshmi ... 1st Respondent/1st Respondent/1st Plaintiff 2.M.Kamala 3.M.Dhanapalan 4.M.Kanmani ... 2 to 4 Respondents/Respondents 3 to 5 PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree passed by the learned Subordinate Judge, Srivilliputhur in A.S.No.54 of 2006 dated 22.08.2011 confirming the judgment and decree of learned Principal District Munsif, Srivilliputhur in O.S.No.127 of 2003, dated 17.10.2005.

For Appellant : Mr.M.Ashok Kumar For R1 to R3 : Mr.G.Marimuthu For R4 : No appearance

JUDGMENT

The defendant in the suit in O.S.No.127 of 2003 on the file of the Principal District Munsif Court, Srivilliputhur is the appellant in this second appeal. The suit in O.S.No.127 of 2003 on the file of the Principal District Munsif Court, Srivilliputhur was filed for redemption of a mortgage, dated 05.10.1981. 2.The case of the plaintiff in the plaint in O.S.No.127 of 2003 are as follows:- The suit property originally belonged to one Balakrishnan Asari. The said BalaKrishna Asari died leaving behind his wife, namely, Veerammal and his two daughters, namely, Gomathi and Ramalakshmi/first plaintiff as legal heirs. After the death of Balakrishnan Asari, the suit property was jointly enjoyed by his wife and daughters and they executed a mortgage deed (othi) on 05.10.1981 for a sum of Rs.4,000/- in favour of one Ponnammal. The time for redemption was also specified in the mortgage deed as five years. After some time, the first plaintiff and her mother approached the mortgagee to hand over the

possession on payment of mortgage money. The said Ponnammal/mortgagee refused to receive the amount as the mortgagors have no right to redeem the property within the period mentioned in the document.

3.The first plaintiff and her sister divided suit property in a partition dated 09.12.1988 and the second plaintiff has purchased the share of Gomathi who is the sister of the first plaintiff. Thus, after death of the first plaintiff's mother, the plaintiffs 1 and 2 are entitled to redeem the property as owners.

4.The defendant's mother Ponnammal is the original mortgagee. Since Ponnammal died about 10 years back, the defendant as the sole legal heir of Ponnammal is now the mortgagee in possession of the property. Though the defendant is bound to hand over the possession on payment of the mortgage amount of Rs.4,000/-, she refused to hand over the possession when the plaintiffs approached her after the period of redemption is over. Therefore, it is stated that the plaintiffs were constrained to file the suit. 5.The suit was contested by the defendant only on the ground that earlier there was a mortgage that was executed by the first plaintiff's father by name Balakrishnan Asari in favour of Ponnammal on 25.02.1959 and that the said mortgage was never redeemed.

Hence, it is stated that without redeeming the earlier mortgage, the suit for redemption of subsequent mortgage is impermissible and hence, the suit is liable to be dismissed. 6.In the written statement, the earlier mortgage deed dated 25.02.1959 is not disputed. The ownership of the property is not disputed. It is further stated in the written statement that the defendant's mother has put up construction in a portion of the property with the permission of first plaintiff's father and the plaintiffs refused to redeem the earlier mortgage and therefore, they are not entitled to seek redemption, since the prior mortgage is time bound. The plaintiffs filed a reply statement denying the averments in the written statement. The trial Court decreed the suit for redemption.

However, the trial Court has observed that the superstructure put up by the defendant to an extent of 223 square feet should be excluded from redemption. Hence, the suit was decreed after excluding the superstructure which is an extent of 17 feet X 9 feet and 7X10 square feet. The trial Court categorically found that the earlier (othi) dated 25.02.1959 under Ex.B1 was discharged. Aggrieved by the judgment and decree of the trial Court, the defendant preferred an appeal in A.S.No.

54 of 2006 on the file of the Sub Court, Srivilliputhur and the appellate Court confirmed the judgment and decree of the trial Court after finding that the plaintiffs are entitled to seek redemption as the earlier mortgage executed by the Balakrishnan Asari in favour of Ponnammal in the year 1959 was discharged and the Appellate Court also disbelieved the contention of the appellant.

7.Aggrieved by the concurrent judgment and decree of the appellate Court, the present second appeal has been filed by the defendant by raising the following substantial questions of law:- "A.Whether merely because there is no mention about the earlier mortgage in the subsequent Mortgage deed will it be deemed that the earlier Mortgage has been redeemed? B.Whether the suit is not hit under the Limitation Act when admittedly the suit has been filed in the year 2003 when the original Mortgage is of the year 1959?

C.Whether the mortgagee can be evicted from the super structure in the absence of a specific agreement about the super structure at the time of execution of mortgage deed? D.Whether a partition is valid in the eye of law when the alleged partition is between two coparceners leaving the other coparcener who has equal share in the property? E.Whether the Ex.A2 is admissible in evidence when admittedly all the persons who are having share over the said property has not been parties to the document?" 8.The following facts are not in dispute. The suit property originally belonged to Balakrishnan Asari. After the death of Balakrishnan Asari, the property devolved on his wife and two daughters. The first plaintiff is one of the daughters of Balakrishnann Asari. The second daughter sold her share to the second plaintiff.

The mortgage deed dated 05.10.1981 was executed by Veerammal and her two daughters and the period specified for redemption is five years. The period of redemption come to an end by 05.10.1986. The suit is filed in 2003 and therefore, the suit is not barred by limitation. However, the learned counsel appearing for the appellant contended that the limitation starts from the earlier mortgage.

9.Having regard to the specific finding of the Courts below that the earlier mortgage which was executed in the year 1959 was discharged and the learned counsel appearing for the appellant has not demonstrated that the said finding is perverse and hence, this Court is unable to appreciate the contention put forward by the appellant regarding limitation. The third question of law has already been found in favour of the appellant as the suit for redemption has been decreed excluding the portion, in which, the defendant had put up construction.

10.It is not in dispute that the suit property is now belonging to the plaintiffs in the suit. Though it is stated that necessary and proper parties are not impleaded in the suit, it is not demonstrated before this Court or before the lower Courts that the suit property is owned by somebody else. Even law permits redemption of the whole mortgage by any one of the co-mortgagors. 11.Having regard to the admitted facts that there is no rival claim and the plaintiffs are the owners of the property, this Court

finds no merit in any of the questions of law raised in this appeal. The questions of law framed by the appellant have no substance, having regard to the specific findings of the lower Courts. Since both the Courts have concurrently held that the plaintiffs are entitled to seek for redemption and the findings of the Courts below are based on evidence and supported by reasons, this Court is unable to entertain this second appeal. Hence, this second appeal is dismissed confirming the judgment and decree of the learned Subordinate Judge, Srivilliputhur in A.S.No.54 of 2006, dated 22.08.2011. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar(CS-II) To 1.The Subordinate Judge, Srivilliputtur.

2.The Principal District Munsif, Srivilliputtur. 3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai. (Two Copies) +1cc to M/S.G.M.Law Office, Advocate SR.No. 71418 +1cc to M/S.M.Ashok Kumar, Advocate SR.No. 71787 Judgment made in S.A.(MD)No.63 of 2013 and M.P.(MD)No.1 of 2013 05.07.2018 rmi JM/KAK/SAR 2/13.08.2018/4P/7C