Madras High Court
Chellappan Pillai vs Kesava Pillai (Died) on 23 December, 2022
Author: N.Seshasayee
Bench: N.Seshasayee
SA(MD)Nos.420 and 421 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 17.10.2022
Pronounced on : 23.12.2022
CORAM JUSTICE N.SESHASAYEE
S.A.(MD) Nos.420 and 421 of 2002
SA(MD)No.420 of 2002:
Chellappan Pillai ...
Appellant/Appellant/Plaintiff
Vs
1.Kesava Pillai (Died)
2. Santhamma
3. Shyamiakumari
4. Krishnan Kutti
5. Sasi Kumar
6. Sanal Kumar
7. Visalakshmi Ammal
8.Remadevi Amma
9.Jeyanthi Kumari
10.Soman Nair
11.Bhuvan Chandran ... Respondents/Respondents/Defendants
in suit/Lrs of deceased R1
(R5 died, memo in USR541 dated 4.1.22 is recorded) R5-remained exparte
in lower court
(Respondents 7 to 11 are brought on record as LRs of the deceased first
respondent Vide Court Order dated 20.01.2022 made in CMP(MD)No.3951
of 2019 in SA(MD)No.420 of 2002
1/18
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SA(MD)Nos.420 and 421 of 2002
Prayer:- Second Appeal is filed under Section 100 of Civil Procedure Code
to set aside the judgment and decree dated 21.06.2001 made in A.S.No.115
of 1997 on the file of the Subordinate Judge, Kuzhithurai, confirming the
judgment and decree dated 09.04.1997 passed in O.S.No.416 of 1990 on
the file of the II Additional District Munsif, Kuzhithurai.
For Appellant : Ms.J.Aanandhavalli
For R1 to R4, R6,
R7 to R11 : Mr.K.N.Thambi
for Mr.K.Sree Kumaran Nair
(R1 and R5 died)
SA(MD)No.421 of 2002:
Chellappan Pillai ... Appellant/Appellant/2nd
defendant
Vs
1.Kesava Pillai (Died)
2.Visalakshmi Ammal
3. Kamatchi Amma
4. Jeyanthi Kumari
5. Soman Nair
6. Bhuvana chandran ...
Respondents/Respondents/Plaintiff/ lrs
of the Plaintiff
(Respondents 2 to 6 are brought on record as LRs of the deceased sole
respondent Vide Court Order dated 03.07.2019made in CMP(MD)No.3952
of 2019 in SA(MD)No.421 of 2002)
Prayer:- Second Appeal is filed under Section 100 of Civil Procedure Code
2/18
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SA(MD)Nos.420 and 421 of 2002
to set aside the judgment and decree dated 21.06.2001 made in A.S.No.116
of 1997 on the file of Subordinate Judge, Kuzhithurai, confirming the
judgment and decree dated 09.04.1997 passed in O.S.No.404 of 1982 on
the file of the II Additional District Munsif, Kuzhithurai.
For Appellant : Ms.J.Aanandhavalli
For R3 to R6 : Mr.K.N.Thambi
for Mr.K.Sree Kumaran Nair
R1 : died
COMMON JUDGMENT
1.1 These Second Appeals arise out of two independent suits. They are now introduced:
O.S.No.404 of 1982 was laid by one Kesava Pillai for redemption of a mortgage of 'B' schedule property. This suit was laid against his mother Karthiyayini Pilla and his brother Chellappan Pillai. They are arrayed as the defendants 1 and 2. The subject matter of the suit is described in two schedules. 'A' schedule property is described as a plot of 39.5 cents out of 79 cents in Old Sy. No. 3486 and correlated to Re-sy No. 89 of Pacode Village. 'B' schedule property is described as a plot measuring 5 cents in 'A' · · · schedule property. Redemption is sought as regards the B schedule 3/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 property.
The second defendant in the aforesaid suit for redemption, laid an independent suit in O.S.No.416 of 1990 for bare injunction as concerning the 'A' schedule property in the suit for redemption. This suit was laid against the plaintiff in the redemption suit and another Easwara Pillai, who is his another brother (Easwara Pillai passed away during pendency of the suit and his legal heirs were impleaded as defendants 3 to 7).
1.2. Both the suits were tried jointly and evidence was recorded in O.S.No. 404 of 1982 (suit for redemption). Post trial, the suit for redemption came to be decreed and the one laid for injunction was dismissed. This gave rise to two first appeals in A.S.Nos.115 of 1997 and 116 of 1997. Fortune continued to elude the second defendant before the First Appellate Court as well, as both these First Appeals were dismissed. Hence, these second appeals are filed at the instance of the second defendant. The parties would be referred to as per their rank before the trial court.
2.1 The facts fall within a narrow compass and they may be stated as below: 4/18
https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 · One Kumara Pillai was the original owner of 'A' schedule property and he was married to the first defendant Karthiyayini Pilla. The couple had seven children, of whom this Court is now concerned only with three. They are Kesava Pillai, the plaintiff, Chellappan Pillai, the second defendant in O.S.No.404 of 1982 and one Easwara Pillai, the second defendant in O.S.No.416 of 1990, who is now no more. · On 23.09.1935 (07.02.1111–ME), Vide Ext.A.1 = Ext.B.1 Kumara Pillai created a possessory mortgage/Otti in favour of one Dhaveedhu Nadar. The property mortgaged was the whole of 'A' schedule property. Subsequently, Vide Ext.A.2 = Ext.B.2, dated 12.07.1118 ME (24/12/1943) Dhaveedhu Nadar, the mortgagee, assigned his right over the security in favour of Karthiyayini Pilla, the wife of the mortgagor.
· Some time prior to 1964, the mortgagor passed away. Post his death one of his sons Krishna Pillai (not a party to the present suit) laid a suit for partition in O.S.No.164 of 1963 against his mother and other siblings. In particular, the plaintiff in the suit for redemption (Kesava Pillai) was arrayed as the second defendant. Karthiyayini Pilla was 5/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 arrayed as the 5th defendant. The second defendant/the appellant herein was arrayed as the 4th defendant. Ext.A-1 mortgage indeed was stated to have been disclosed.
· On 22.06.1964, a preliminary decree came to be passed in O.S.164 of 1963 Vide Ext.A.5 judgment, but subjected it to redemption of Ext.A. 1 mortgage. This was followed by a final decree dated 30.11.1964.
The judgment and decree passed therein are marked as Ext.A.5 and Ext.A.3 respectively.
· In O.S.No.164 of 1963, 'A' schedule property herein was scheduled as item No.1. In the final decree, as concerning this item of property, plot No.1 came to be allotted jointly to the plaintiff therein (Krishna Pillai), the second defendant/appellant, Karthiyayini Pillai, the first defendant and another. The plaintiff herein was allotted plot No.4. Based on Ext.A.3 final decree, the plaintiff has laid the suit for redemption of the mortgage over-hanging plot No.4 allotted to him. He also claims that he is entitled to the benefit of Act 4/1938.
2.2 During the pendency of the suit, on 05.07.1984, the first defendant 6/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 Karthiyayini Pilla had died after bequeathing her property to the second defendant. And, as the legal representative of Karthiyayini Pilla, the plaintiff had impleaded only the second defendant and not the other siblings.
3. The second defendant/appellant resisted the suit for redemption. His contentions are:
i) Karthiyayini Pilla had executed Ext.B.4 Will dated 02.07.1979 bequeathing her right over 'B' schedule property. It is a registered Will. The right of redemption was lost to those in whom obligation to redeem Ext.A.1 mortgage devolved by succession by efflux of time.
ii) The suit for redemption is barred by limitation.
4. Both the suits went to trial. As already indicated, evidence was recorded in the suit for redemption. Both the trial court as well as the first appellate Court had held that the suit for redemption is not barred by limitation since they were laid within 60 years from the date of Ext.A.2, which is a document by which the mortgagee under Ext.A.1 assigned his right in favour of the first defendant Karthiyayini Pilla. Turning to the second contention of the second defendant that he has absolute title to the 'A' schedule property based on Ext.B.4-Will is concerned, to prove it the the 7/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 propounder of the Will had examined D.W.2, one of the attesting witnesses to the said document, but both the courts below were not satisfied with the adequacy of proof and held against the genuineness of the Will. What is significant is that notwithstanding the fact that the suit was laid for redemption of 5 cents out of 39 cents (B Schedule property), O.S.416 of 1990 laid by the second defendant for bare injunction to protect his possession as concerning the entire 39 cents ('A' schedule property) was dismissed.
5.1 Hence the second defendant had come forward with the present set of appeals. These appeals are admitted for considering the following substantial question of law:
· Whether the recitals in Ext.B.2 would keep the mortgage alive so as to enable the plaintiff to file a suit for redemption?
· If the suit is barred by limitation would the extension of Tamil Nadu Act 4 of 1938 with effect from 24.01.1973 could confer retrospectively any benefit to the plaintiff in the suit? · Whether the findings of the courts below that the plaintiff has proved that he is entitled to the benefits of T.N. Act 4 of 1938 on facts, can be sustained in law?
8/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 5.2 The following additional substantial question of law is required to be framed, to which the learned counsel appearing for the respondents has also agreed:
Were not the Courts below in error in holding that Ext.B4 may not confer any title to the appellant, because the mother of the parties is only an assignee of the mortgagee's right under Ext.A2?
6. The learned counsel for the appellant raised the following points:
· So far as the finding of the courts below that the present suit is not barred by limitation is concerned, they fixed the terminus quo for computing the period of limitation to Ext.A.2 = Ext.B.2, the deed of assignment executed by the original mortgagee Dhaveedhu Nadar in favour of Karthiyayini Pilla. The fundamental flaw herein is that the limitation had to be reckoned from the date of original mortgage Ext.A.1, and not the date of assignment of mortgage. The assignment of mortgage as between the mortgagee and his assignee has little to do with the right of redemption of the mortgagor as it does not interfere with his right over it.
· So far as the proof of Ext.B.4 goes, it is a registered Will. Post the demise of Karthiyayini Pillai, the plaintiff had filed I.A.No.564 of 9/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 1985 and chosen to implead only the second defendant alone as the legal representative of the Karthiyayini Pillai, when she admittedly had other children. This has to be construed as an implied admission on the part of the plaintiff that Ext.B.4 Will is genuine. Indeed, to prove the Will, the second defendant had examined D.W.2, one of the attestors of the Will, but it was rejected not because D.W.2 did not speak to the due execution of the Will by Karthiyayini Pilla but because the attestor could not provide the details of the properties bequeathed under the Will. This is beyond the scope of enquiry contemplated for proving the genuineness of a Will, and the courts below have misaddressed the issue before it. Reliance was placed on the dictum in Dhananjeyan Vs Dharaniammal & Others [2021(5) CTC 50].
· Indeed, Ext.B4-Will was executed by her after the decree for partition made in O.S.No.163 of 1964. Therefore, it may not be appropriate to state that Karthiyayini Pilla had also derived her share of the mortgagor's right while holding her title as a mortgagee of the entire suit properties.
10/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 · Alternatively, if Ext.B.4-Will is not genuine, it is then obligatory on the part of the plaintiff to implead all those who are interested in the right of redemption in terms of Order 34 Rule 1 C.P.C., and it was not done. Reliance was placed on the dictum in Mohammed Ismail Maraoair and others vs. Doraisamy Mudaliar and others [71 LW 606:(1959) II MLJ 74].
· While Karthiyayini Pilla was holding the entire property as the mortgagee, a suit seeking partial partition of plot No.4 allotted in the final decree to the plaintiff in O.S.No.164 of 1963 is not maintainable in terms of Section 60 of the Transfer of the Property Act. Reliance was placed on the authorities in Thiagasambandham Pillai and another vs. Savithiri Ammal and another [(1999) 2 MLJ 264] and K.Ramachandra Thevar and Murugesan [(2003) 4 LW 377]. · The courts below have also egregiously erred in dismissing the entire suit in O.S.No.416 of 1990 since the plaintiff had confined his right to plot No.4 in Ext.A.3 final decree, and not to the entire property. Therefore, the courts below, at least ought to have granted relief to the entire property except 'B' schedule property when it chose to 11/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 uphold the plaintiff's right of redemption.
7. The learned counsel appearing for the respondents/defendants made the following submissions:
· Admittedly Ext.A-1 is a usufructory mortgage and in terms of Sec.62 of Transfer of Property Act, it is available to the mortgagor till the mortgage money is paid. Reliance was placed on the dictum in Sigh Ram (dead) through Lrs., Vs Sheo Ram & Others [(2014)9 SCC 185] & Harminder Singh (dead) through Lrs. Vs Surjit Kaur (dead) through Lrs. [(2022 (2) MWN (Civil) 239].
· The Courts below had held against the genuineness of Ext.B.4-Will.
This would imply that Karthiyayini Pilla, the mother of the parties herein would be entitled to the entirety of mortgagee's right over the property covered under Ext.A1 and also will be entitled to undivided 1/8 share in the right of redemption of her husband, Kumara Pillai. Therefore, she will be the absolute owner of only to an extent of 1/8 share in the suit property. Hence, she will not be competent to execute a Will for the entire 39.5 cents covered under Ext.A1. 12/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 · If the Will goes, then this 1/8 absolute share of Karthiyayini Pilla would devolve equally on her seven children and this would mean that the plaintiff would also be entitled to 1/7 out of 1/8 share of absolute right of Karthiyayini Pilla plus another 1/7 share in Karthiyayini's right as mortgagee. This would imply that the plaintiff would be entitled to 1/7 out of 7/8 share of Karthiyayini's mortgagee's right.
· When part of the right of the mortgagee has vested in the plaintiff, then the last paragraph to Sec.60 of the Transfer of Property Act will come into play and accordingly, the right of redemption of part of the mortgaged property is permissible.
· So far as O.S.416 of 1990 is concerned when Ext.B4 Will is not genuine, then the second defendant cannot claim any right to which Karthiyayini had. Hence it was justly dismissed. Reliance was placed on the ratio in Anathula Sudhakar Vs P. Buchi Reddy (dead) by Lrs. & Others [2008 (6) CTC 237].
Discussion & Decision:
8.1 This Court first intends to focus on the genuineness of Ext.B4, as it is 13/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 hinged on the maintainability of the suit for redemption in O.S.No. 404/1982. Even though no substantial question of law was raised pertaining to the genuineness of the Will in question, probing it has become necessary for it produces different consequences: if the Will is genuine, then the suit would be maintainable and if it is not, the suit will be bad for non- impleading the other heirs of the first defendant. 8.2 The Will, Ext.B4 was a registered Will and that was executed by the first defendant on 02.07.1979, and she had died in 1985. For proving the Will, the second defendant, the legatee under the Will had examined D.W.2, one of the attestors of the Will. He was examined which is about 13 years since the date of execution of the Will. And D.W.2 is about 69 years old when he deposed. So far as the execution per se is concerned, D.W.2 speaks cogently to the factum of the execution of the Will by the first defendant. However, the Courts below had taken a view that inasmuch as this attestor could not give the details of the properties bequeathed under the Will, found his testimony to be suspicious and unreliable and the attestor of a document is only required to possesses animus attestandi and he is not required to know the contents of the documents he is attesting. Therefore, D.W.2 cannot be considered to be competent to speak bout the contents of the Will. 14/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 This apart, D.W.2 was 69 years old and he deposes to the fact that some 13 years after he attested the document. The Court necessarily have to provide for lapses in memory of the witness in circumstances such as this. As already stated, this Court finds that the testimony of D.W.2 and the factum of execution of Will is trustworthy and necessarily Ext.B4 Will is held genuine.
9. The consequences of holding Ext.B4 Will as genuine will have an immediate ramification on the maintainability of the suit for redemption. Other than the plaintiff and the second defendant, Karthiyayini Pilla had few other children and on the demise of Karthiyayini Pilla, the plaintiff had impleaded only the second defendant, he being the legatee under Ext.B4 Will, and did not implead his other siblings. But, inasmuch as a person in whom the right of the second defendant has vested absolutely in terms of Ext.B4, and he is arrayed as second defendant, necessarily this Court has to hold that all the persons who are interested in the mortgage are before the Court within the meaning of Order XXXIV Rule 1 CPC., and hence, the suit for redemption in O.S.No.404/1982 is maintainable.
10. This takes the matter for testing the maintainability of the suit on 15/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 another ground: seeking partial partition. It is not in dispute that Ext.A3 final decree has been passed in O.S.No.163 of 1964, and in this 'A' schedule property has been divided into plots and the plaintiff was allotted Plot No.4, which measures 5 cents. Indeed, even the preliminary decree for partition was passed only subject to the mortgage debt due payable to the first defendant. That the first defendant happened to be the mother of the plaintiff and the second defendant, would not alter her character as a mortgagee of 'A' schedule property. Under Section 60 of the Transfer of Property Act, 1882, bars partial redemption of mortgage, but it is subject to certain exceptions. The last paragraph of Section 60 of the Transfer of Property Act, reads as below :
Redemption of portion of mortgaged property - Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.' If the facts on record is tested on the plane of the aforesaid provision, it could be seen that part of equity of redemption vested in Kumara Pillai, had devolved on his wife-cum-mortgagee. In other words, the integrity of the 16/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 mortgage is disturbed by the legal consequences flowing out of the death of the mortgagor. Once it is achieved at one level, then it has to enable partial redemption of the plot No.4 allotted to the plaintiff under Ext.A3 final decree passed in O.S.164 of 1963 at another level.
11. To conclude, this Court upholds the decree enabling the plaintiff to redeem the mortgage as concerning plot No:4 in Ext.A3 final decree. Turning to O.S.416 of 1990, in fitness of things, the courts below ought to have decreed the suit barring plot No.4 in Ext.A-3 final decree. This Court does not find any justification whatsoever for denying the relief to portions other than B schedule property in the suit for redemption in O.S.404 of 1982.
12. In the result, this Court dismisses S.A.(MD) No.421 of 2002, and confirms the decree for redemption granted in O.S.404 of 1982. Turning to S.A.(MD) No.420 of 2002, this Court partially allows the appeal, and sets aside the judgement and decree of the courts below and grants a decree of prohibitory injunction restraining the defendants in O.S.416 of 1990 from interfering with the peaceful possession of the plaintiff to all except plot No. 4 in Ext.A3 final decree passed in O.S.164 of 1963. No costs. 17/18 https://www.mhc.tn.gov.in/judis SA(MD)Nos.420 and 421 of 2002 .12.2022 Index : Yes / No Internet : Yes / No Speaking order / Non-speaking order CM/ssb To:
1. The Subordinate Judge, Kuzhithurai
2. The II Additional District Munsif, Kuzhithurai.
3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
N.SESHASAYEE. J., CM/ssb Pre-delivery Judgment in S.A.(MD) Nos.420 and 421 of 2002 23.12.2022 18/18 https://www.mhc.tn.gov.in/judis