Kerala High Court
Krishnan Assari Velayudhan Assari vs Parameswaran Pillai Madhavan Pillai on 15 November, 1988
Equivalent citations: AIR1989KER163, AIR 1989 KERALA 163, (1989) 1 KER LT 63, (1988) 2 KER LJ 805, (1990) 2 CURCC 478
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. An obstructor succeeded in two courts below in his resistance against delivery of a property covered by the decree. The obstructor is none other than the brother of the first judgment-debtor. Other judgment-debtors are the children of the first judgment -debtor. This second appeal is by the decree-holder,
2. The appellant obtained the decree for redemption of two usufructuary mortgages in respect of a land having thirtyeight cents in extent. All the steps so far adopted by the decree-holder to get possession of the mortgaged property did not fructify. The turn in the fight is consequent on the obstruction made when the Amin went to effect delivery of possession of the property. Execution Court upheld the obstructor's claim in regard to thirtyone cents, but rejected the claim in regard to the balance area of seven cents on which a building is situate. Both the obstructor and the decree-holder challenged the said order of the execution Court. It was the obstructor who filed the appeal in the Court below. Then the decree-holder preferred cross-objections in that appeal. The lower appellate Court confirmed the order subject to one modification i.e., the execution Court was directed to refer the claim of the obstructor that he is a kudikidappukaran to the Land Tribunal. Hence this second appeal.
3. The decree for redemption passed by the trial Court against the judgment-debtors was confirmed in appeal. Two among the judgment-debtors raised objections during execution proceedings that the decree is void as against them on the ground that they were wrongly shown as minors in the suit. Those objections were overruled against which a Civil Revision Petition was filed in this Court, but that revision was also dismissed. Then another judgment-debtor filed a suit challenging the decree as having fraudulently obtained in collusion between his mother (first judgment-debtor) and the decree-holder. That strategy also did not succeed. Ultimately, the decree-holder reached the stage when the Court ordered delivery of property. It was then that the respondent herein, who is brother of the first judgment-debtor, obstructed. The obstruction is based on Ext.B1 mortgage deed dated 1-2-1965, purported to have been executed by the first judgment-debtor on her behalf as well as on behalf of her minor children. (The decree was passed by the trial Court on 17-10-1975). An alternate contention was raised by the obstructor that he is a kudikidappukaran in respect of another building situate in the property described in Ext.B1. Even after upholding the obstructor's right over thirtyone cents, the lower appellate Court wanted to pursue the matter further and hence remitted the case to the execution Court directing it to refer the question of kudikidappu to the Land Tribunal.
4. The first contention of the learned counsel for the appellant is that Ext.B1 mortgage deed ought not have been looked into in this case as it was not legally proved. Section 68 of the Evidence Act is pressed into service, which says that "if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution". Section 59 of the Transfer of Property Act says that a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by atleast two witnesses, unless the principal money secured by the mortgage is less than one hundred rupees. The amount purported to be secured by Ext.B1 mortgage deed is one hundred rupees. Admittedly no attestor was called to prove Ext.Bl mortgage deed. It is on the aforesaid premise that the contention was raised regarding the bar against Ext.B1. Such contention raised in the first appellate Court was repelled by the learned Sub Judge relying on the proviso to Section 68 of the Evidence Act.
According to the Sub Judge, "Ext.B1 is not a Will but only a registered mortgage deed and in this case it was challenged not by the person who executed the same, but by a stranger". In other words, the learned Sub Judge is of the view that it is impermissible for a stranger to deny the execution of a document and hence the proviso would apply. The proviso reads thus : "Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied". There is nothing in the proviso to suggest that persons who are not parties to the document are under any disability to deny the execution of a document. What is envisaged is that the execution of a document by the person by whom it is purported to have been executed must be specifically denied. It does not mean that the right to deny the execution is available only to the parties to the document. There is no warrant for eliminating all other persons than the parties to a document from resorting to Section 68. Support can be drawn for this proposition from the following observations of a Division Bench of this Court in Kannan Nambiar v. Narayani Amma, 1984 Ker LT 855. "The requirement (under Section 68 of the Evidence Act) is only that the execution should be. specifically denied by the party against whom the document is sought to be used. Not only the executent but also all the persons who are interested in denying the execution of the document are entitled to invoke the aid of the proviso to Section 68 of the Evidence Act".
5. Even the counsel for the respondent found it difficult to support the reasoning of the lower appellate Court and hence he tried to make out a different reason for supporting the conclusion. According to the counsel, there was no specific denial of the execution of Ext.B1 and hence Section 68 cannot be called in assistance. He made reference to another portion of the observations contained in the decision in Kannan Nambiar's case (cited supra) to Bolster up the contention. That portion reads as follows :
" 'Specific' means with exactness, precision in a definite manner. It is clear, that something more is required to connote specificdenial in juxtaposition to general denial. Specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution". In that case, validity of a gift deed was challenged and the defendant averred that the document cannot be used in evidence as no attesting witness was called to prove it. The party who raised the contention further averred in the written statement that the gift deed executed is not true and valid, nor is it binding on him and that there was no necessity for the donor to execute a gift deed, and that execution of the gift deed was without exercising the free will and volition of the executant. The Division Bench, upon those averments, and also on the evidence found that there was no specific denial of execution of the gift deed. But the position here is different. The appellant in his application for removal of obstruction has stated in clear terms in paragraph six thereof that the document (Ext.B1) is a concocted one, and that it was not executed by the first defendant (first judgment-debtor) and further that the document was created freudulently by defendants two and three. Can a denial be more specific than the manner in which it has been done by the appellant by using the aforesaid words? Learned counsel for the respondent argued that since there is no contention that the other judgment-debtors did not execute the gift deed, it cannot be taken that there is an absolute and ful-fledged denial of its execution. This argument is bassed on the fact that in Ext.B1 the first judgment-debtor was acting as guardian of her minor children, besides her individual capacity. The only signatory in the gift deed is the first judgment-debtor. The person who executed the document is the one who signed it. Though it can be said that those others who were represented in document are also transferors, the document was executed by the person who affixed the signature therein as the executant. So the argument does not merit acceptance. There is specific denial of the execution of the gift deed."
6. Therefore, I uphold the contention that Ext.B1 cannot be used as evidence since it has not been proved as required by law.
7. Even assuming that Ext.B has been proved, the obstructor cannot use Ext.B1 against the decree-holder. Ext.B1, if at all it had come into effect, only amounts to a sub-mortgage created by the mortgagee. There is nothing in evidence to show that the decree-holder had any notice of Ext.B1 until it was winched to surface for resisting delivery of possession. It was argued on behalf of the respondent that the burden is on the mortgagor (decree-holder) to prove that he had no notice of the sub-mortgage. In this case the decree-holder has stated in categoric terms, in his application for removal of obstruction, that he had no information earlier about such a mortgage and that he knew about it only when the obstruction was caused. The respondent has said in his counter, in answer to the aforesaid averment, that the decree-holder had prior knowledge of the mortgage. It is a basic principle on burden of proof that the party who asserts the positive must prove it. This principle is embodied in Section 101 of the Evidence Act with the words "when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". A Division Bench of the Bombay High Court has held in Peerkha Latka v. Bapu Kashiba, AIR 1923 Bom 410 that the burden of proof is on the party who sets up notice. Section 103 of the Evidence Act also provides statutory recognition to the principle that the burden is on that person who wishes the Court to believe in the existence of a particular fact. When a person who says positively that, another had notice of a fact, does not adduce evidence to prove that positive fact, the Court cannot hold that the other person had such notice, unless that other person admits that he had notice.
8. No effort was made by the respondent to prove that the appellant had notice of the sub-mortgage. Even in his testimony as D.W. 1, he did not say anything about it. Hence it has to be concluded that the decree-holder had no notice of Ext.B1 during the pendency of the suit. The principle governing such situation has been delineated by a Full Bench of this Court in Maheswaradha than Nambudiri v. Narayanan Nambudiri, 1970 Ker LT 313 : (AIR 1971 Kerala 3 at p. 7) Raman Nayar, CJ. speaking for the Full Bench has stated thus :
"A sub-mortgage being in the nature of an assignment of the mortgage, the principle underlying the proviso to Sub-section (1) of Section 130 of the Transfer of Property Act (which is only a codification of the pre-existing law) has always been applied to the case of a redemption of a mortgage by the mortgagor without the conjunction of the sub-mortgagee. The express notice contemplated by the proviso is not insisted upon -- the section is, of course, not in terms applicable -- but if the redemption be without notice of the sub-mortgage, then it is valid and effective as against the sub-mortgage, and it is settled law that the mere registration of the sub-mortgage is not notice thereof to the mortgagor since by the redemption, he does not acquire the property transferred under the sub-mortgage or any part thereof -- see Explanation-I of what might be called the definition of "notice" in Section 3 of the Transfer of Property Act".
9. It was lastly contended that the obstructor has Kudikidappu right in respect of the building situated in Ext.B1 plot. According to the learned counsel, kudikidappu right enures to the respondent by virtue of Explanation-IIA to Section 2(25) of the Kerala Land Reforms Act. The said explanation is extracted below :
"Notwithstanding any judgment, decree or order of any Court, a person, who, on the 16th day of Aug., 1968, was in occupationof any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person) and continued to be in such occupation till the 1st day of Jan., 1970, shall be deemed to be a kudikidappukaran :
Provided that no such person shall be deemed to be a kudikidappukaran -
(a) in cases where the dwelling house has not been constructed by such person or by any of his predecessors-in-interest, if-
(i) such dwelling house was constructed at a cost, at the time of construction, exceeding seven hundred and fifty rupees; or
(ii) such dwelling house could have, at the time of construction, yielded a monthly rent exceeding five rupees; or
(b) if he has a building or is in possession of any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, either as owner or as tenant, on which he could erect a building."
If the building has not been constructed by the person who claims kudikidappu right, he must show that the building was constructed at a cost not exceeding rupees seven hundred fifty or that the building could have yielded a monthly rent not exceeding rupees five at the time of construction. Those ingredients were not even mentioned in the claim, but it was contended that the building was constructed by the respondent in the property. The only evidence in support of such a claim is the testimony of the respondent as D.W. 1. He did not say a word in his evidence that any building was constructed by him. Thus the respondent has thoroughly failed to prove that he has any kudikidappu right in the property. This Court has held in Kassim Rawther Moosa v. Meeranchi Mytheen Beavi, (1988) 2 Ker LT 812 that "there is no necessity to make a reference to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act in proceedings under Order 21, Rule 101 of the Code even, if the question of tenancy or kudikidappukaran arises therein". Such questions can be decided by the execution Court. The lower appellate Court has gone wrong in remitting the case to the execution Court for making a reference to the Land Tribunal.
In the result, I allow this appeal and set aside the judgment of the lower appellate Court. The order of the execution Court upholding the claim of the obstructor is also set a side. The application (E.A. 1991/81) filed by the appellant-decree-holder in the execution Court stands allowed. The execution Court is directed to proceed further in accordance with law.