Madras High Court
M.Palanisamy vs M.Govindhan on 20 April, 2021
Author: M.Sundar
Bench: M.Sundar
S.A.No.326 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
S.A.No.326 of 2021
&
C.M.P.No.6329 of 2021
in
S.A.No.326 of 2021
1.M.Palanisamy
2.P.Ramesh
3.P.Ayyappan
4. P.Karuppian (Major) ... Appellant
Vs.
M.Govindhan ... Respondents
(Fourth Appellant P.Karuppian declared as major and discharge his
guardian M.Palanisamy vide order of court dated 24.02.2021 made in
C.M.P.No.2495 and 2496 of 2021 in S.A.SR.No.81611 of 2020.
Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree dated 12.03.2020 and made
in A.S.No.45 of 2019 on the file of the Principal Subordinate Court,
1/15
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S.A.No.326 of 2021
Ariyalur confirming the judgment and decree dated 26.06.2019 and made in
O.S.No.318 of 2008 on the file of Additional Principal District Munsif
Court, Ariyalur.
For Appellant : Mr.T.Gowthaman
JUDGMENT
This judgment and order will dispose of captioned second appeal i.e., S.A.No.326 of 2021 and Civil Miscellaneous Petition therein, namely C.M.P.No.6329 of 2021.
2. The litigation out of which captioned second appeal arises commenced well over a decade ago. It commenced more than 12 years ago, to be precise, on 13.10.2008 when one Palanisamy presented a plaint against his father-in-law Govindhan in the 'Additional Principal District Munsif's Court, Ariyalur' (hereinafter 'trial Court' for the sake of brevity) and this plaint was taken on file as O.S.No.318 of 2008. Suit was laid inter- alia with prayers for preliminary decree for redemption and an alternate prayer for re-conveyance. Entire suit is pivoted on a document styled 'Conditional Sale Deed' being a registered document dated 08.07.2002, certified copy of which was marked as Ex.A1 and original was marked as Ex.B1.
2/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021
3. There is disputation between the parties regarding quantum of borrowal. While plaintiff's (son-in-law) pleading is that he borrowed Rs.17,000/- (Rupees Seventeen Thousand only) and executed the conditional sale deed, defendant's (father-in-law) pleading is that the lending is Rs.50,000/- (Rupees Fifty Thousand only). It may not be necessary to dilate further on this controversy as the entire lis turns on whether aforementioned document styled 'Conditional sale deed' (Ex.A1/Ex.B1) will qualify as a mortgage by conditional sale within the meaning of Section 58 (c) of 'The Transfer of Property Act, 1882 (4 of 1882)', {hereinafter be referred to as 'TP Act' for the sake of brevity and convenience} is the neat question on which this matter now turns.
4. Aforementioned Palanisamy, who had arrayed himself as first plaintiff (his three sons as Plaintiffs 2 to 4), examined himself as PW1 and one Saminathan, who was a witness qua Ex.A1/Ex.B1 was examined as PW2. As already mentioned supra, the document styled 'Conditional sale deed' itself was marked as Ex.A1/Ex.B1 (certified copy / original respectively) and the lawyer's notice issued by the plaintiff being lawyer's notice dated 29.05.2007 was marked as Ex.A2 along with the postal 3/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 acknowledgement card which has been marked as Ex.A3. On the side of defendant, first plaintiff's father-in-law examined himself as DW1 and the conditional sale deed (original) was marked as Ex.B1 and the revenue records, namely Patta, A-Register and Land Tax receipts (5 receipts) were marked as Exs.B2, B3 and B4 respectively (it is obviously Ex.B4 series).
5. After full contest, trial Court dismissed the suit in and by judgment and decree dated 26.06.2019 holding that Ex.A1/Ex.B1 does not qualify as a mortgage by conditional sale within the meaning of Section 58 (c) of TP Act. The trial Court framed five issues, but the pivotal issue is issue No.1, which reads as follows:
'1.thjp Twpa[s;sJnghy; gpujpthjpahdtu;
U:/17.000-? f;F epge;jid tpw;gidapd;goahd mlkhd fld; gj;jpuk; U:/17.000-? f;F vGjpf;bfhLj;Js;shuh>' 6/ Aforementioned issue No.1 has been answered by trial Court in Paragraphs 9 to 20 of its judgment and most relevant portion of the judgment are contained in Paragraphs 10, 18 and 19 read as follows:
'10)nkw;go 8/7/2002 njjpapl;l MtzkhdJ
thjpfs; jug;gpy; jhf;fy; bra;ag;gl;L mJ
th.rh.M?Mf FwpaPL bra;ag;gl;Ls;sJ/ mJ
KjyhtJ gf;fj;jpy; 7?tJ tupapy; fzpoc&d;
4/15
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S.A.No.326 of 2021
rhrdg;gj;jpuk; vd;W vGjg;gl;Ls;sJ/ mnjnghy
2?tJ gf;fj;jpy;
''moapy; fz;l vdf;F brhe;jkhd epyj;ij ehd;
ehsJ njjpapy; cd;dplk; fzpoc&d; rhrdk; bra;J
jUtjha; xg;gf
[ ;bfhz;L epr;faj;j fpiuak; U:/17.000-?
,e;j U:gha; gjpndG MapuKk; moapy; fz;l rhl;rpfs; Kd;dpiyapy; bgw;Wf;bfhz;Ltpl;lgoahy; moapy; fz;l brh;ij ehd; 5 tUc&k; bfL fle;J ru;t$pj;J tUlk;
g';Fdp khjk; 30?k; njjpf;Fs; fpiuaJf;F 17.000-? (gjpndG Ma[uj;ija[k;) cd;dplk; bfhLj;Jtpl;L vd; brytpy; fpiua gj;jpuk; vGjpf; bfhz;L kD rhrdk;
vGjpf; bfhs;fpnwd;/' '18) thjpahdtu; jdJ jug;gpy; jhf;fy; bra;Js;s 2018 (3) MWN (Civil)446 vd;w tHf;fpy; khz;gik cr;rePjpkd;wj;jhy;
Transfer of Property Act, 1882 (4 of 1882), Section 58(c) – Document – Sale with condition of Repurchase or Mortgage with conditional sale – Suit for Redemption of Mortgage – Stand of Respondent that document relied upon by Plaintiff was a sale with a condition to Repurchase and not a Mortgage by conditional sale – Held, possession handed over to Respondents upon payment of Rs.3,000/- recital in document that property was to be enjoyed in lieu of any Interest payable on amount – Transfer of Interest with vesting of absolute rights in Purchaser, establishing that document was only a sale with condition of repurchase – Dismissal of suit, upheld – Appeal dismissed.
5/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 vd;W Twg;gl;Ls;s tHpghl;LjyhdJ ,e;j tHf;fpd; bghUz;ikfSf;F bghUe;Jtjhf ,Ue;J ; lk; tifapy; cs;sJ/' thjpfspd; tHf;fpw;F tY nru;fF
'19) gpujpthjp jug;gpy; jhf;fy; bra;ag;gl;Ls;s 2011(2) MLJ 490 SC vd;w tHf;fpy; Twg;gl;Ls;s For a transaction to constitute mortgage by conditional sale, it is necessary that the condition is embodied in the document that purports to effect the sale.
vd;W Twg;gl;Ls;s tHpfhl;LjyhdJ ,e;j
tHf;fpd; bghUz;ikfSf;F bghUe;Jtjhf
,y;iy/ '
(underlining made by this Court to
highlight and for ease of reference)
7. The unsuccessful plaintiff carried the matter in appeal by way of a regular first appeal under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity) to 'Principal Subordinate Judge's Court, Ariyalur' (hereinafter 'First Appellate Court' for the sake of convenience). After full contest, first Appellate Court dismissed the first appeal in and by judgment and decree dated 12.03.2020. To be noted, trial Court had framed an issue (Issue No.2) regarding limitation and held that the suit is not barred by limitation, but the first Appellate Court has held that the suit has been 6/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 barred by limitation as it has not been filed within 5 years as Ex.A1/Ex.B1 is dated 08.07.2002 time frame qua a covenant therein for reversal is five years, but the suit was filed only on 13.10.2008. It is also to be noticed that first plaintiff has issued a notice dated 29.05.2007, which has been marked as Ex.A2. As already mentioned supra, learned counsel pointed out that this notice (Ex.A2) is within five years, but it is not necessary to dilate on this limitation aspect as Issue No.1 in trial court, which is pivotal to the lis, is Point for Determination No.1 in first Appellate Court and the same is captured in Paragraph 7 of the first Appellate Court judgment, which reads as follows:
'1.th/rh/M?1 Mtzk; mlkhdg;gj;jpuk; my;y mJ fpuag;gj;jpuk; vd tprhuiz ePjpkd;wk; tpil fz;lJ rhpjhdh>'
8. This first point for determination has been answered by the first Appellate Court in Paragraphs 9, 10 & 11 of its judgment.
9. Before, I advert to the most relevant paragraph in the first Appellate Court judgment, it is deemed appropriate to mention that trial Court placed reliance on the judgment of Hon'ble Supreme Court in 7/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 Subhash Malhari Muneshwar and another Vs.Arvinde Anandrao Kadam and another reported in 2018(3) MWN (Civil)446 for the principles governing test qua when a document of sale with a condition to re-purchase will qualify as mortgage by conditional sale. This principle has been very succinctly set out by the first Appellate Court in Paragraph 11, which reads as follows.
' 11....... 2018 (3) MWN (Civil) 446 vd;w tHf;fpy; cr;rePjpkd;wj;jhy; tH';fg;gl;l Kd;jhP ;g;gi [ uapd;go th/rh/M1?y; tl;of;F <lhf brhj;ij mDgtk; bra;J tuntz;Lbkd;w thrfk; ,y;yhj gl;rj;jpy; mJ mlkhdkhf vLj;Jf;bfhs;sf;TlhJ vdt[k;.
fpuakhfj;jhd; vLj;Jf; bfhs;s ntz;Lbkd bjhptpf;fg;gl;Ls;sJ/ (underlining made by this Court to highlight and for ease of reference) To be noted, corresponding paragraph in trial Court judgment is paragraph 18, which reads as follows:
'18/ thjpahdtu; jdJ jug;gpy; jhf;fy; bra;Js;s 2018 (3) MWN (Civil) 446 vd;w tHf;fpy; khz;gik cr;rePjpkd;wj;jhy;
Transfer of Property Act, 1882 (4 of 1882), Section 58(c) – Document – Sale with condition of Repurchase or Mortgage with conditional sale – Suit for Redemption of Mortgage – Stand of Respondent 8/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 that document relied upon by Plaintiff was a sale with a condition to Repurchase and not a Mortgage by conditional sale – Held, possession handed over to Respondents upon payment of Rs.3,000/- recital in document that property was to be enjoyed in lieu of any Interest payable on amount – Transfer of Interest with vesting of absolute rights in Purchaser, establishing that document was only a sale with condition of repurchase – Dismissal of suit, upheld – Appeal dismissed.
vd;W Twg;gl;Ls;s tHpfhl;LjyhdJ ,e;j
tHf;fpd; bghUz;ikfSf;F bghUe;Jtjhf ,Ue;J
; lk; tifapy; cs;sJ/'
thjpfspd; tHf;fpw;F tY nru;fF
10/ In the light of the narrative thus far, this Court is of the considered view that there is no error in the manner in which trial Court and first Appellate Court have dealt with and interpreted Ex.A1/B1 and come to the conclusion that it does not qualify as a document of mortgage by conditional sale particularly owing to the absence of a covenant / recital that the property is to be possessed and enjoyed in lieu of interest, much less is this Court able to persuade itself that there is any error giving rise to substantial question/s of law in the captioned second appeal. In the light of Kanailal principle [Kanailal and Others Vs. Ram Chandra Singh and Others reported in (2018) 13 SCC 715] and Kirpa Ram case [Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC Online SC 935], 9/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 this Court is of the considered view that lone point for consideration in captioned second appeal is 'whether there is any error in the concurrent findings returned by trial Court / first appellate Court regarding Ex.A1/B1 dated 08.07.2002 that this document styled conditional sale does not qualify as a deed of mortgage by conditional sale within the meaning of Section 58(c) of TP Act leading to arising of substantial question/s of law in the captioned second appeal?'. To be noted, Kanailal principle is to the effect that rigour of Order XLI Rule 31 CPC will stand telescoped into a Section 100 CPC legal drill also. Kirpa Ram principle is to the effect that a second appeal can be dismissed by the second appeal Court at the admission stage without formulating substantial question/s of law, if none arise/s.
11. In the light of the narrative thus far and in the light of the concurrent factual findings returned by trial Court and first Appellate Court that Ex.A1/B1 dated 08.07.2002 does not qualify as a document of mortgage by conditional sale, this Court has no difficulty in coming to the conclusion that there is no error in the approach of both the Courts much less error leading to a substantial question of law. In this regard, this Court reminded itself that the expression 'substantial question of law' has been 10/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 elucidatively explained in a long line of authorities. First of these is, celebrated Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1951 Madras 969 (FB)], which was affirmed by a Hon'ble Constitution Bench of Supreme Court in Sir Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC 1314]. This aspect has been neatly and nicely captured in Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari (Deceased) by Lrs reported in (2001) 3 SCC 179]. Relevant paragraph in Santosh Hazari case is paragraph 12 and the same reads as follows:
' 12. The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be 11/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co.
Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :
“[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.” 12/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”
12. It is made clear that this Court has applied the aforementioned elucidation / description qua what the expression 'substantial question of law' means in testing whether such a question arises in the case on hand in the light of both the Courts having dealt with the core issue succinctly and correctly more so by applying the principle laid down by Hon'ble Supreme Court in Raj Kishore (Dead) by Lrs. Vs. Prem Singh and others reported in 13/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 2011 (2) MLJ 490 SC, to answer the point for determination and the answer is in the negative. As a inevitable sequittur captioned second appeal is dismissed at the admission stage holding that no substantial question/s of law arises. Consequently captioned CMP is also dismissed. Owing to relationship between the parties and nature of the submissions made before this Court, there shall be no order as to costs.
20.04.2021 Speaking order: Yes/No Index: Yes/No gpa To
1. The Principal Subordinate Court, Ariyalur
2. The Additional Principal District Munsif Court Ariyalur 14/15 https://www.mhc.tn.gov.in/judis/ S.A.No.326 of 2021 M.SUNDAR.J., gpa S.A.No.326 of 2021 & C.M.P.No.6329 of 2021 in S.A.No.326 of 2021 20.04.2021 15/15 https://www.mhc.tn.gov.in/judis/