Karnataka High Court
Smt Shanthamma W/O Chikka Narashimaiah vs Nanjappa Since Dead By Lrs on 27 April, 2018
Equivalent citations: 2018 (4) AKR 257, (2018) 4 KANT LJ 830, (2019) 1 CIVLJ 617, (2018) 3 KCCR 2677, (2018) 4 ICC 594
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
REGULAR SECOND APPEAL No.2532/2007 (MON)
BETWEEN:
Smt. Shanthamma
D/o. Late Nanjamma,
Aged about 45 years,
W/o. Chikka Narashimaiah,
Presently residing at
Kerechurahalli, Somanahalli Post,
Uttarahalli Hobli,
Bangalore South Taluk- 560 039. .. Appellant
( By Sri G. Papi Reddy, Advocate)
AND:
1. Nanjappa
(Since dead by LRS)
(a) Akkamma W/o. G. Nanjappa,
Aged about 75 years.
(b) Thippanna S/o. G. Nanjappa,
Aged about 55 years.
(c) Venkatamma W/o. G. Nanjappa,
Aged about 42 years.
RSA.No.2532/2007
2
(d) Muniswamy S/o. G. Nanjappa,
Aged about 40 years.
Melthayalur village,
Tayalur Hobli,
Mulbagal Taluk &
Kolar District- 563 101.
2. Nadubeedi Muniswamy
(Since dead by LRS)
(a) M. Rajanna
S/o. Nadubeedi Muniswamy
Aged about 46 years.
(b) Srinivasappa
S/o. Nadubeedi Muniswamy
Aged about 49 years.
(c) Sathyanarayana
S/o. Nadubeedi Muniswamy,
Aged about 34 years.
Sunnagur Village,
Avani Hobli,
Mulbagal Taluk &
Kolar District-563 101. ... Respondents
(By Sri. R. Nataraj, Advocate for R1(a to c);
R1(d) Service held sufficient;
R2(a to c) are Served)
This Appeal is filed under Section 100 of CPC, against
the judgment and decree dated 29.10.2005, passed in
R.A.No.24/2002, on the file of the Addl. District Judge,
Presiding Officer, Fast Track Court-III. Kolar, allowing the
appeal and setting aside the judgment and decree dated
RSA.No.2532/2007
3
19.12.2001, passed in O.S.No.148/1988, on the file of the
Prl. Civil Judge (Jr.Dn.), & JMFC, Mulbagal.
This Appeal coming having been heard and reserved for
judgment on 16.04.2018, coming on for pronouncement of
judgment, this day the Court delivered the following :
JUDGMENT
The present appellant as plaintiff No.2, joined by the present respondent No.2 as plaintiff No.1, had instituted a suit in O.S.No.148/1988, against the present respondent No.1, in the Court of Prl.Civil Judge (Jr.Dn.) & JMFC, Mulbagal, (henceforth for brevity referred to as "the trial Court") for redemption of mortgage of the suit schedule properties, for possession and mesne profits. The said suit was decreed by the judgment and decree of the trial Court dated 19.12.2001. Being aggrieved by the said judgment and decree, the present respondent No.1/defendant No.1 preferred an appeal in R.A.No.24/2002, against the present appellant and the RSA.No.2532/2007 4 present respondent No.2 in the Fast Track Court-III, at Kolar, (henceforth for brevity referred to as "the First Appellate Court"). The said First Appellate Court by its judgment and decree dated 29.10.2005, allowed the appeal and set aside the judgment and decree passed by the trial Court. It is against the said judgment and decree of the First Appellate Court, the present appellant has filed the present appeal.
2. At the first instance, the original suit was filed by the present respondent No.2 Nadubeedi Muniswamy alone against the present respondent and present appellant arraying as defendant Nos.1 and 2 in the trial Court.
3. It was the summary of the case of the said plaintiff in the trial Court was that, one Smt.Nanjamma, the mother of 2nd defendant- Shantamma, being owner and in possession and enjoyment of the suit schedule RSA.No.2532/2007 5 properties, during her life time, had mortgaged the said properties in favour of the plaintiff-Nadubeedi Muniswamy for a sum of `2,000/-, under registered usufructuary Mortgage Deed dated 12.8.1964 and had delivered the possession of the suit schedule properties to him. Since sub-mortgage was permitted under the said Mortgage Deed, the mortgagee - Nadubeedi Muniswamy, sub-mortgaged the same properties in favour of 1st defendant-Sri Nanjappa, for a sum of `2,000/- and executed a registered Sub-Mortgage Deed on 1.9.1970 and delivered the possession to him.
Further it is alleged in the plaint that the plaintiff approached the defendant No.1 several times with the mortgaged amount of `2,000/- and requested him to receive the said amount and redeem the mortgage of the said properties and deliver the possession of the properties to the plaintiff. Despite the same, defendant RSA.No.2532/2007 6 No.1 did not acced to the request. The plaintiff caused to issue a legal notice on defendant No.1 on 6.4.1988, calling upon him to present before the Sub-Registrar's office, Mulbagal Taluk, Mulbagal, on 23.4.1988 to receive the mortgaged amount of `2,000/- and to execute necessary documents by redeeming the mortgage of the properties. The 1st defendant sent an untenable reply to the same, but did not comply the demand made in the notice. Even though the plaintiff was always ready and willing to perform his part of the obligation for redemption of the mortgage, that defendant did not favourably respond to it. This made the plaintiff to institute a suit against him. Since the original mortgagor-Smt.Nanjamma died, her daughter Smt.Shantamma was arrayed as proforma defendant No.2.
4. Both the defendants appeared and filed their statements separately. The 1st defendant though RSA.No.2532/2007 7 admitted that he was a sub-mortgagee, but, disputed that the plaintiff had any right to seek redemption of mortgage. He contended that it was only the 2nd defendant who has any right to seek redemption of the mortgage. At the same time, he also stated that she also has lost her right to redeem as the same is barred by time. When the 2nd defendant, as a true owner, has lost the right to redeem the mortgage, the plaintiff being a mortgagee under the 2nd defendant also does not have any right. He denied all other plaint averments.
The 2nd defendant in her written statement supported the case of the plaintiff by admitting that suit properties were originally belonged to her mother Smt.Nanjamma and that she had mortgaged the same in favour of the plaintiff, who in turn, had sub-mortgaged the same in favour of the 1st defendant RSA.No.2532/2007 8 and delivered the possession of the properties to him. She also stated that the plaintiff was entitled for decree as prayed.
5. During the pendency of the suit, the defendant No.2 was transposed as plaintiff No.2 at the application of the said defendant No.2 filed under Order I Rule 10 (6) read with Section 151 of Code of Civil Procedure, 1908. After her transposition, the 2nd plaintiff has neither filed any pleading nor sought any reliefs.
6. Based upon the pleadings of the parties, the trial Court framed the following issues:
1) Whether plaintiff proves that he is entitled to redeem suit properties from defendant No.1?
2) Whether plaintiff proves that he is entitled to get possession of the suit properties from defendant No.1?RSA.No.2532/2007 9
3) Whether suit of the plaintiff is well in time?
4) Whether plaintiff proves that he is entitled to get mesne profits from the defendants from the date of filing the suit till he taking the delivery of the possession of the suit property?
5) If so, for how much quantum of mesne
profits plaintiff is entitled?
6) To what relief parties are entitled?
7) What order or decree?
Plaintiffs got themselves examined as PW-1 and PW-2 respectively and got marked documents at Exs.P-1 to P-4. On behalf of the defendant, defendant No.1(b) was examined as DW-1 and no documents were marked as exhibits from their side.RSA.No.2532/2007 10
After hearing both side and considering the material placed before it, the trial Court answered issue Nos.1 to 3 in the affirmative and issue Nos.4 and 5 in the negative and by its judgment and decree dated 19.12.2001, decreed the suit of the plaintiff, holding that legal representatives of plaintiff No.1 are entitled to redeem the mortgage which was created under Mortgage Deed dated 1.9.1970 in favour of the 1st defendant. The defendants were directed to execute the necessary receipt as share and same to be registered before the Sub-Registrar, Mulbagal, after receiving the mortgage amount. The defendants were also directed to deliver the possession of the suit schedule properties in favour of the legal representatives of plaintiff No.1.
7. Aggrieved by the judgment and decree of the trial Court, the legal representatives of defendant, who RSA.No.2532/2007 11 were already on record in the trial Court, filed an appeal before the First Appellate Court in RA.No.24/2002. The respondents therein appeared before the Court and contested the matter.
8. The First Appellate Court framed the following points for its consideration:
1) Whether original plaintiff Muniswamy has got right to sue for redemption?
2) What order?
After hearing both side, the First Appellate Court answered point No.1 in the negative and by its judgment and decree dated 29.10.2005, allowed the appeal and set aside the judgment and decree passed by the trial Court. It is against the said judgment and decree of the First Appellate Court, the 2nd plaintiff before the trial Court has preferred this appeal.
RSA.No.2532/200712
9. This Court while admitting this appeal, framed the following substantial question of law :
" 1. Whether the First Appellate Court is justified in reversing the finding made in O.S.No.148/1988?
2. Whether the First Appellate Court is justified in not taking into consideration Section 91 of the Transfer of Property Act and come to the conclusion that the appellant is not entitled for redemption of mortgage?
3. Whether the First Appellate Court is right in holding that the suit is not maintainable in law?
10. In response to the notice, the respondent No.1 (a to c) are being represented by their Counsel. The service on respondent No.1(d) is held sufficient by the order of this Court dated 15.3.2011. Even Though the respondent Nos.2 (a to c) are served in this matter, they RSA.No.2532/2007 13 remained unrepresented, as such, no argument was addressed from their side.
11. The lower Court records were called for and the same are placed before the Court.
12. Heard arguments of learned Counsel from both side. Perused the materials placed before this Court.
15. For the sake of convenience, the parties would be referred to henceforth with the ranks they were holding before the trial Court respectively.
16. Learned counsel for the appellant in his argument submitted that the condition in the sub-mortgage that original mortgagor can redeem the mortgage from defendant No.1, would not take away the right of plaintiff No.1 from redeeming it. Still in this case, the legal representative of the original mortgagor- Smt.Nanjamma, by transposing herself as plaintiff No.2 RSA.No.2532/2007 14 in the suit, has sought the decree as prayed for, thus, has sought the redemption of the mortgage. Therefore, the finding of the First Appellate Court that the plaintiff had no locus standi to seek redemption was bad in the eye of law. He further submitted that the limitation for instituting the suit for redemption of mortgage would commence from the date of second mortgage, as such, the suit filed for redemption of mortgage was within the time.
Learned counsel for the appellant also relied upon few judgments of Hon'ble Privy Council, Hon'ble Supreme Court and Co-ordinate Benches of this Court, which will be discussed at the relevant stage.
17. Learned counsel for the respondents in his argument submitted that even though the 2nd plaintiff was transposed, still she cannot redeem mortgage under Section 91 of the Transfer of Property Act, 1882. RSA.No.2532/2007 15 He further submitted that suit of the plaintiff was barred by limitation, as such also, the suit could not have been decreed by the trial Court.
Section 91 of the Transfer of Property Act, reads as below :
" 91. Persons who may sue for redemption.- Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely:-
(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;
(b) any surety for the payment of the mortgage debt or any part thereof; or
(c) any creditor of the mortgagor who has in a suit for the administration of his RSA.No.2532/2007 16 estate obtained a decree for sale of the mortgaged property."
A reading of the above Section go to show that basically a mortgagor has got a right to sue for redemption. Besides the mortgagor, any person other than the mortgagee of the interest sought to be redeemed, who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same, can also sue for redemption. Any surety for the payment of the mortgage-debt or any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property can also sue for redemption.
In the instant case, plaintiff No.1 being the original mortgagee under the first Mortgage Deed between the original mortgagor Smt.Nanjamma and himself under the registered Mortgage Deed dated 12.8.1964, has RSA.No.2532/2007 17 sub-mortgaged the properties in favour of the defendant vide second registered Mortgage Deed dated 1.9.1970. It is not in dispute that the mortgaged amount in both the mortgages was `2,000/-. The subject matter of the property of the mortgage was one and the same. Further, the first Mortgage Deed dated 12.8.1964 had expressly provided to sub-mortgage the property by the original mortgagee by recognizing a right of sub- mortgage (Anvadi Bhogya in Kannada language).
18. During the pendency of the suit, the 2nd defendant Smt.Shantamma, who is undisputedly the legal representative of deceased original mortgagor- Smt.Nanjamma, was transposed at her request to the position of plaintiff No.2. She has prayed for decreeing the suit as prayed by the original plaintiff. Now the question that arises is whether the said Smt.Shantamma, who by virtue of the death of original RSA.No.2532/2007 18 mortgagor, has installed in the position of original mortgagor by herself be considered as a plaintiff who has prayed for redemption of mortgage without she filing any fresh plaint after her transposition. In that regard, a judgment relied upon by the learned counsel for the appellant, which is delivered by a Division Bench of this Court in the case of Veerabhadrappa and another -vs- Smt.Gangamma and another, reported in AIR 2003 KAR 348, can be relied upon. In the said case, while discussing the fact of transposition of parties under Order I Rule 10 of the Code of the Civil Procedure, 1908, the Court has observed that, where in a suit, there is transposition of defendant as plaintiff, the written statement should be read as a whole. The necessity of amendment of plaint would be only for convenience sake.
RSA.No.2532/200719
In paragraph-15 of the said judgment, the Court was pleased to observe as below :
" Para-15 - At this stage, it is also
necessary to mention that when a
defendant gets transposed as one of the plaintiff, the written statement filed by such defendant gets transposed and would form part of the plaint. The necessity of amendment of a plaint at that stage is only for convenience sake. In other words, the original plaint and the written statement of the defendant No.2 who had got transposed as a plaintiff will have to be read together. In other words, such a written statement would partake the nature of plaint and the Courts of law administering justice in an adversary system of administration of justice cannot afford to take any other view and should read the said written statement as a plaint. At this stage, it is necessary to refer to a decision of the Apex Court, relied upon by RSA.No.2532/2007 20 the learned counsel for plaintiffs, reported in AIR 1987 1242, wherein the Supreme Court has held that the object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. The Supreme Court has further held that it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleadings is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of RSA.No.2532/2007 21 deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
In the instant case, admittedly the plaintiff No.2 prior to her transposition, when she was defendant No.2, has filed her pleading in the form of written statement, wherein she has fully supported the case of the plaintiff admitting both the mortgages of the year 1964 and 1970 and also about her entitlement to seek redemption. With that, she has prayed for decreeing the suit as prayed by the original plaintiff. That being the case, in the light of the above judgment of Division Bench of this Court in Veerabhadrappa's case (supra), it was not mandatory on the plaintiff No.2 to file a separate or fresh plaint making a specific prayer as against the defendant. It is RSA.No.2532/2007 22 also for the reason that the Sub-mortgage Deed at Ex.P-4 dated 1.9.1970, clearly mentions in it that once the mortgage amount is paid, immediately after reaping the crop, the property has to be given to the possession of original mortgagor- Smt.Nanjamma. Thus, in the Sub-mortgage Deed itself, it has been clearly mentioned that at the redemption of the mortgage, the mortgagee who would be in the possession of the properties, is required to hand over the possession of the mortgaged property to the original mortgagor-Smt.Nanjamma (in the instant case, it is her legal representative Smt.Shantamma, plaintiff No.2). This aspect, the First Appellate Court failed to notice which has led it to come to an opinion that the appellant before it was not entitled for redemption of mortgage.
19. The above view that the original mortgagor can be a co-plaintiff in a suit by virtue of transposition RSA.No.2532/2007 23 also gains support in the light of the decision of the Hon'ble Privy Council in Bhupendra Narayan Sinha bahadur -vs- Rajeswar Prasad, Bhakat and others, reported in AIR 1931 Privy Council 162. In the said judgment, at page-165, their Lordships were pleased to observe as below :
" The proforma defendants asked that a decree should be passed in favour of the appellant. If there was a technical objection to this, the Court clearly had power at any stage of the proceedings to remedy the defect under O.1, R. 10, Civil P.C., by adding the pro-forma defendants as co-plaintiffs with the appellant. Such a course should, in their Lordships' opinion always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings."RSA.No.2532/2007 24
In the instant case, as already observed, the original mortgagor (her legal representative) was transposed from defendant No.2 to plaintiff No.2, who has supported the case of the original plaintiff and prayed for decreeing the suit, thus, her transposition was required and warranted to avoid multiplicity of proceedings.
In another case relied upon by the learned counsel for the appellant i.e., in Sonnakka and another -vs- Dombara Munekka and other defendants, reported in AIR 1959 Mysore 39, a Co-ordiante Bench of the then Mysore High Court with respect to Section 91(a) of the Transfer of Property Act, 1882, and parties right to redeem, was pleased to observe that, it had been uniformly held that even the smallest interest in the mortgaged property was sufficient to entitle the plaintiff to redeem the mortgage. In the instant case, plaintiffs RSA.No.2532/2007 25 have substantial interest in the mortgaged property, as such, their right to redeem cannot be questioned.
20. The other point of argument canvassed in the appeal is regarding limitation aspect. According to the defendant, the suit was barred by limitation. It was the argument of learned counsel for the respondents that, admittedly the first mortgage was entered on 12.8.1964, but, the suit for redemption was filed on 27.9.1988. As per Article 61(b) of the Limitation Act, 1963, the suit for redemption should have been filed within 12 years, as such, the suit was barred by limitation.
Per contra, learned counsel for the appellant in his argument submitted that it is Article 61(a) of the Limitation Act is applicable in the instant case. According to him, the period of limitation is 30 years, that too, from the date of second mortgage which is dated 1.9.1970, as such, the suit is filed well within limitation. In his RSA.No.2532/2007 26 support, he also relied upon judgment of this Court in Yashodaraiah (Deceased) by L.Rs. -vs-
S.B.Payidevaru and others, reported in AIR 2006 KAR 123.
Article 61(a) & (b) of the Limitation Act, 1961, reads as below :
"PART-V SUITS RELATING TO IMMOVABLE PROPERTY
61. By a mortgagor -
(a) to redeem or recover Thirty years When the right possession of to redeem or to immovable property recover possession mortgaged. accrues.
(b) to recover possession Twelve years When the transfer
of immovable becomes known to
property mortgaged the plaintiff.
and afterwards
transferred by the
mortgagee for a
valuable consideration."
In the instant case, the original suit was filed with the prayer for redemption of mortgage in respect of suit schedule property under registered usufructary Mortgage RSA.No.2532/2007 27 Deed dated 1.9.1970, executed in favour of the 1st defendant on receiving the mortgage amount of `2,000/- from the plaintiff. Consequently with the prayer to direct the 1st defendant to execute necessary receipt as share and same be registered before the Sub-
Registrar's office, Mulbagal, and also for delivery of the possession of the suit schedule property by the defendant to the plaintiff and for mesne profits. Thus, the prayer is not confined only for recovery of possession of immovable property mortgaged and also it is not the case of the plaintiff that subsequent to the original mortgage, mortgagee has transferred the property for valuable consideration to some other person. As observed, the plaintiff No.1 as a sub-mortgagee, has sub-mortgaged the property in favour of defendant No.1 which was permitted under the original Mortgage Deed. The relief sought for in the original suit was not for recovery of possession of the mortgaged property, alone RSA.No.2532/2007 28 but, primarily for redemption of the mortgage which was originally created under the Mortgage Deed dated 1.9.1970. Therefore, it is not Article 61(b) of the Limitation Act, 1963, but, it is Article 61(a) of the same Act that applies in the case on hand. As such, the period of limitation to sue for redemption of the mortgage would be 30 years, but, not 12 years as contended by the learned counsel for the respondents.
In Yashodaraiah (deceased) by Lrs. (supra), a Co-ordinate Bench of this Court while dealing with Article 61 of the Limitation Act, 1963, in a suit for redemption of mortgage, was pleased to observe that, where after a mortgage, the mortgagee has assigned mortgage rights in favour of another person, the original mortgagor can sue for redemption within 30 years from the date of assignment date. However, in the instant case, when the original mortgage is on 12.8.1964, the Original Suit RSA.No.2532/2007 29 is filed in the trial Court on 27.9.1988, thus, the same is within 30 years the period of limitation, as such, the argument of the learned counsel for the respondents that the suit was barred by limitation is also not acceptable.
21. From the above analysis, it is clear that even though the suit was originally decreed by the trial Court, however, the First Appellate Court by observing that the original mortgagor after her transposition as a plaintiff, could not maintain the suit, was pleased to reverse the finding of the trial Court. Since the said finding of the First Appellate Court was now found to be erroneous and perverse, the same deserves to be set aside and the judgment and decree passed by the trial Court deserves to be confirmed. Accordingly, answering all the three substantial question of law framed in this appeal in the negative, I proceed to pass the following order : RSA.No.2532/2007 30
ORDER The Regular Second Appeal is allowed with costs.
The judgment and decree dated 29.10.2005, passed by the Fast Track Court-III, Kolar, in R.A.No.24/2002, is set aside. The judgment and decree dated 19.12.2001, passed by the Prl.Civil Judge (Jr.Dn.), & JMFC, Mulbagal, in O.S.No.148/1988, which has decreed the suit of the plaintiff, is confirmed.
Sd/-
JUDGE bk/-