Madras High Court
Dakshayani vs B.Kuppuswamy on 26 August, 2011
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 26.8.2011 Coram The Honble Mr.Justice R.S.RAMANATHAN Second Appeal No.639 of 1998 Dakshayani Appellant vs. B.Kuppuswamy Respondent For appellant : Mr.V.Raghavachari For respondent: Mr.K.Radhakrishnan Prayer:- Second Appeal against the judgment and decree dated 25.11.1997 in A.S.No.99 of 1996 on the file of the Principal District Judge, Villupuram confirming the judgment and decree dated 30.4.1996 passed in O.S.No.357 of 1995 on the file of the District Munsif, Thirukoilur. JUDGMENT
The defendant, who lost in both the courts below, is the appellant.
2. The respondent/plaintiff filed the suit for redemption of mortgage. The case of the respondent/plaintiff was that the suit property belonged to him and on 12.4.1991, he mortgaged the suit property in favour of the appellant and it was agreed that the appellant shall reside in the property in lieu of interest and on repayment of the mortgage amount, the appellant shall vacate and hand over possession of the property and a varthamanam letter was executed on the same day stating the above terms in writing and it is with the appellant and the appellant is residing in the property as per the varthamanam letter. When the respondent/plaintiff offered to repay the mortgage amount of Rs.10,000/=, that was not received and the appellant also refused to vacate and hand over possession and therefore, a notice was sent to the appellant and that was received by the appellant but, she did not send any reply and as the appellant has failed to receive the amount and vacate the premises, the suit was filed for redemption of mortgage and for recovery of possession.
3. The case of the appellant was that the respondent executed a simple mortgage in favour of the appellant and thereafter, the property was let out to the appellant on a monthly rent of Rs.150/= and the appellant also paid Rs.3000/= as advance and he has been regularly paying the rent and there is no agreement between the parties that the appellant shall reside in the property in lieu of interest and no such varthamanam letter was executed by the parties as alleged by the respondent and therefore, the suit for redemption of mortgage and recovery of possession was not maintainable and therefore, the respondent has to pay the mortgage amount with interest and without paying the mortgage amount with interest, he is not entitled to the relief prayed for.
4. Both the courts below decreed the suit as prayed for and hence, the second appeal is filed by the appellant.
5. The following substantial questions of law were framed at the time of admission:-
"1. Whether the courts below are right in placing reliance upon the Vardhamanam (letter) when the same had not been produced and exhibited by the plaintiff.
2. Whether the courts below are right in holding that the suit mortgage is an usufructuary mortgage contrary to Ex.A1, which is a simple mortgage and the same is also contrary to Sections 91 and 92 of the Indian Evidence Act."
6. Mr.V.Raghavachari, learned counsel for the appellant would submit that both the courts below erred in decreeing the suit on the basis of the evidence alleged to have been given by the appellant in O.S.No.794 of 1994 wherein it was alleged that the appellant has admitted his possession in lieu of interest for the mortgage amount and without confronting the appellant with the said evidence, the courts below ought not to have relied upon the admission of the appellant in the earlier suit, when the same was specifically denied by the appellant in the present suit and without producing a copy of the varthamanam letter, the courts below ought not to have held that the appellant is in possession of the property in lieu of interest and the findings of the courts below are against sections 91 and 92 of the Evidence Act and when the parties have specifically alleged that there was written instrument, in the absence of production of such instrument, no oral evidence is permissible and therefore, the judgment and decree of both the courts below are liable to be set aside.
7. On the other hand, Mr.K.Radhakrishnan, learned counsel for the respondent would submit that the lower appellate court has dealt with the provisions of sections 91 and 92 of the Evidence Act and rightly held that as per the judgment rendered in PALAM NOOKKAMMA AND ANOTHER v. SADHI REDDY DHARMIAH AND OTHERS (1953 MLJ 863) oral evidence is permissible regarding the nature of possession of the appellant in the suit property and further the courts below rightly relied upon the admission of the appellant in O.S.No.794 of 1994 wherein the appellant has admitted that he is in possession of the property in lieu of interest and when the appellant is in possession of the property in lieu of interest, he is liable to be evicted from the property on payment of mortgage amount and therefore, there is no need to interfere with the findings of the courts below.
8. The learned counsel for the respondent further submitted that the judgment relied upon by the learned counsel for the appellant reported in SARPUNISA BEEVI v. AMEENA BEEVI AMMAL (1988 (1) LW 517) was rightly considered by the lower appellate court and having regard to the judgment reported in 1953 MLJ 863 which was rendered by three Judges, the lower appellate court has rightly preferred that judgment to that of the judgment reported in 1988 (1) LW 517 and therefore, the second appeal is liable to be dismissed.
9. In this case, the execution of simple mortgage by the respondent in favour of the appellant on 12.4.1991 is admitted. The case of the respondent was that alongwith the execution of simple mortgage, a varthamanam letter was also executed wherein the appellant was allowed to be in possession of the property in lieu of interest and the appellant was also put in possession of the property and he is enjoying the property and he has not paid any interest and the alleged tenancy is also not true and as the appellant is in possession of the property in lieu of interest, he is liable to vacate and hand over possession of the property when the mortgage amount is tendered by the respondent.
10. In this case it is admitted that the varthamanam letter was not marked in evidence though a copy was filed alongwith the plaint and notice was also given to the appellant to produce the original of the varthamanm letter by the respondent. Unfortunately, no attempt was made by the respondent to mark a copy of the varthamanam letter which was filed along with the plaint. Therefore, the question now arises for consideration is whether in the absence of marking such a document, can the court allow any oral evidence about the same and decree the suit.
11. It is contended by Mr.Raghavachari, learned counsel for the appellant that as per sections 91 and 92 of the Evidence Act, when the terms of a contract have been reduced to a form of document, no evidence shall be given in proof of such document except the document itself and as per section 92 of the Evidence Act, when the terms of any document have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to or subtracting from its terms. He, therefore, submitted that according to the respondent, the varthamanam letter was executed by the parties and therefore, no evidence shall be given in proof of such document except the document itself and in the absence of production of such document the court should not have relied upon the oral evidence which is not permissible under section 91 of the Evidence Act. He further submitted that the courts below erred in taking into consideration the deposition of the appellant given in O.S.No.794 of 1994 without confronting the appellant with that statement when he was examined in this case and therefore, the courts below erred in relying upon the alleged admission of the appellant when the same was denied by him in evidence in this case.
12. It is seen from the judgment of the courts below that alongwith this suit O.S.No.794 of 1994 was also tried and that suit was filed by the appellant against the respondent for recovery of Rs.7000/= on the basis of the pro note alleged to have been executed by the respondent in favour of the appellant. It has been held by the courts below that in O.S.No.794 of 1994, the appellant alleged to have admitted that he is in possession of the property in lieu of interest and on payment of the principal amount, he agreed to vacate the property. On the basis of the admission, the courts below decreed the suit. Admittedly, when the appellant was examined as DW1 in the present suit, a question was specifically put to him in cross-examination and he has stated specifically that he has not given any such evidence in O.S.No.794 of 1994 admitting the execution of the varthamanam letter and also his possession of the suit property in lieu of interest for the mortgage. In cross-examination, he has further stated that if the plaintiff pays the principal amount of mortgage as well as interest and the amount payable under O.S.No.794 of 1994, he would vacate the house. Therefore, when the appellant specifically denied in this case that he has not given any evidence in O.S.No.794 of 1994, admitting the varthamanam letter or his possession of the property in lieu of interest for the mortgage, without marking the previous statement of the appellant in O.S.No.794 of 1994 and by confronting him with the said evidence, the courts below ought not to have relied upon the alleged admission by the appellant in O.S.No.794 of 1994. Admittedly, the said evidence given by the appellant in O.S.No.794 of 1994 was not confronted with the appellant when he was examined as DW1 and his evidence in the previous suit was not marked. Therefore, in the absence of such evidence, the courts below erred in taking into consideration the alleged admission of the appellant in the earlier suit. Further, the varthamanam letter was not marked and when it was not admitted that the varthamanam letter was executed by the parties, and in the absence of such varthamanam letter before the court, the court should not have accepted the oral evidence regarding the varthamanam letter and it is hit by section 91 of the Evidence Act. Further, Ex.A1 is admittedly a simple mortgage and by reason of the oral admission given by the respondent, the respondent is attempting to convert the simple mortgage into a usufructuary mortgage and that amounts to giving evidence contradictory to the terms of the written document. In this case, the judgment reported in 1988 (1) LW 517 is relevant. In that case, the usufructuary mortgage was executed and evidence was sought to be let in to the effect that it was only a simple mortgage and not an usufructuary mortgage and that was not allowed to be raised in that case. Further, in the judgment reported in 1953 MLJ 863, this court has held that oral evidence can be let in for the purpose of proving that the parties agreed to discharge the mortgage from the income from that property and according to me, that evidence will not be hit by section 92 of the Evidence Act and what is hit by section 92 is any oral evidence contradicting or varying the terms of the contract. In this case, the respondent wants to give oral evidence regarding the nature of mortgage and according to me, the respondent is not entitled to lead any evidence to that effect. Hence, both the substantial questions of law are answered in favour of the appellant and the courts below ought not have relied upon the content of the varthamanam letter in the absence of marking that letter by the respondent and the courts below erred in holding that the suit mortgage was only a usufructuary mortgage and not a simple mortgage and erred in holding that the the appellant was in possession of the mortgage in lieu of interest which is hit by section 92. I hold that the mortgage is only a simple mortgage.
In the result, the second appeal is partly allowed. The decree is modified and a preliminary decree is passed on the mortgage deed dated 12.4.1991 executed in favour of the appellant/respondent. No costs.
26.8.2011.
Index: Yes.
Internet: Yes.
ssk.
To
1. The Principal District Judge, Villupuram.
2. The District Munsif, Thirukoilur.
R.S.RAMANATHAN, J.
ssk.
P.D. JUDGMENT IN S.A.No.639 of 1998 Delivered on 26.8.2011.