Madras High Court
Karupaathal vs Muthusami on 24 July, 2013
Author: G. Rajasuria
Bench: G. Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.07.2013 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.1030 of 2012 and M.P.No.1 of 2013 1. Karupaathal 2. Ramathal 3. Ponnammal @ Ponna 4. Subbanna Gounder 5. Rajamani .. Appellants vs. 1. Muthusami 2. Chennimalai Gounder .. Respondents This Second Appeal is directed as against the judgment and decree dated 22.02.2012 passed in A.S.No.14 of 2011 by the learned Principal Subordinate Judge, Tiruppur in confirming the judgment and decree passed in O.S.No.212 of 2006 dated 27.01.2011 by the learned District Munsif, Palladam. For Appellants : Mr.S.V.Jayaraman, Senior Counsel for Mr.R.Maheshan For Respondents : Mr.V.P.Sengottuvel JUDGMENT
This Second Appeal is focussed animadverting upon the judgment and decree dated 22.02.2012 passed in A.S.No.14 of 2011 by the learned Principal Subordinate Judge, Tiruppur in confirming the judgment and decree passed in O.S.No.212 of 2006 dated 27.01.2011 by the learned District Munsif, Palladam.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A re'sume' of facts absolutely necessary for the disposal of this Second Appeal, would run thus:
(a) The plaintiffs filed the suit seeking the following reliefs:
"(1) For redemption against the defendants;
(2) To direct the defendants to redeliver possession of the schedule mentioned property;
(3) To direct the defendants to return the plaintiffs the mortgage deed, title deeds relating to the mortgage property and all documents and other connected papers;
(4) To declare that the Assignment mortgage dated 30.04.1955 herein as null and void as not binding on the plaintiffs;
(5) To declare that the sale deed dated 06.02.1973 herein as null and void as not binding on the plaintiffs;
(6) To declare that the will dated 20.11.1998 herein as null and void as not binding on the plaintiffs;
(7) To declare that the sale deed dated 16.09.2004 in favour of second defendant herein as null and void as not binding on the plaintiffs; and (8) For costs.
(extracted as such)
(b) The gist and kernel of the averments in the plaint would run thus:
Originally the property belonged to one Karuppakkal, wife of Marappa Gounder, mother of P1 to P3 and one late Ganapathi Ammal. Karuppakkal, the original owner of the suit property, by virtue of the sale deed dated 30.06.1941, created usufructuary mortgage, vide mortgage deed dated 19.10.1944 in favour of one Masa Gounder and delivered possession of the said property as revealed by Ex.A2. As per the Mortgage Assignment Deed dated 30.04.1955, Ex.A3, the said Masa Gounder assigned the mortgage in favour of one Palani Gounder, son of Kasi Gounder. The terms of the mortgage are that the mortgage amount of Rs.100/- was expected to be paid by the mortgagor to the mortgagee within a period of five years from the date of mortgage and if he fails to do so, then he could pay the amount on any subsequent year during the month of 'chithirai' and redeem the mortgage.
(c) According to the averments in the plaint, the mortgage could be redeemed at any time during the month of 'Chithirai' in any year for that matter. Consequently Karuppakkal died intestate on 28.04.1949 leaving the plaintiffs as her legal heirs. The plaintiffs were under the impression that the mortgagee Masa Gounder was in possession of the suit property and when they wanted to redeem the mortgage, to their shock and surprise they came to know that the second defendant/Chennimalai Gounder was in possession and enjoyment of the suit property. The plaintiffs applied for an encumbrance certificate and made search and found the plaint documents 1 to 5. The said mortgagee assigned the mortgage in favour of Palani Gounder as per the assignment deed dated 30.04.1955, however without informing the plaintiffs about such assignment. Palani Gounder sold the suit property in favour of one Thannasi by virtue of Ex.A4, the sale deed dated 06.02.1973. Subsequently, the deceased Thannasi's son Muthusamy sold the suit property in favour of Chennimalai Gounder. Hence the suit.
(d) Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, D2 filed the written statement, which was adopted by D1, the warp and woof of it would run thus:
The plaintiffs are bound to prove the averments in the plaint. The suit property did not belong to Karuppakkal. However, it was the absolute property of Masa Gounder by virtue of the sale deed dated 28.08.1944. Thereafter, he sold the suit property in favour of Palani Gounder, vide the sale deed dated 30.04.1955. Thereafter, the said Palani Gounder sold the suit property in favour of one Thannasi by virtue of the sale deed dated 06.02.1973. The said Thannasi executed a Will dated 20.11.1998 in favour of D1, bequeathing the suit property. Thereafter, D1 sold the suit property in favour of D2. Even assuming that there was mortgage as alleged in the plaint, there is nothing to indicate as to why the mortgage was not discharged earlier and the plaintiffs claim is barred by limitation.
Accordingly, he would pray for the dismissal of the suit.
(e) Issues were set down for trial.
(f) During trial, the first plaintiff/Karuppakkal examined herself as P.W.1 and Exs.A1 to A10 were marked; and the defendants examined themselves as D.W.1 and D.W.2 and Exs.B1 to B14 were marked.
4. Ultimately the trial Court dismissed the suit, as against which the appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court.
5. Challenging and impugning the judgments and decrees of both the fora below, this Second Appeal has been focussed on various grounds and also the suggesting the following substantial questions of law:
"a. Whether the Courts below went wrong in holding that Art.61(b) would apply when the suit itself is filed for Redemption and Recovery of Possession falling within the ambit and scope of Art.61(a) of the Limitation Act?
b. Whether in the absence of power of sale granted to a Usufructuary mortgagee, an Assignee of the mortgage can exercise a larger interest than what could have been assigned by alienating the mortgaged property causing clog on redemption?
c. In the absence of power vested in the Assignee to transfer the mortgaged property, are the Courts below right in dismissing the suit whereby, depriving the legal heirs of the mortgagor from redeeming the said property?
d. Whether the Courts below went wrong in holding that the suit is barred by Limitation as the accrual of the cause of action arise only on obtaining certified copies of the exhibits A1 to A5 which would constitute the date of knowledge?
e. Whether the mortgagee can usurp a larger right which is not conferred on him and alienate the mortgaged property merely because the mortgagor failed to remit the mortgage money within the period stipulated thereby creating a clog on redemption by exercising a power which is not vested in the mortgagee?"
(extracted as such)
6. After hearing both sides, this Court formulated the following substantial questions of law:
(1) Whether Article 61(a) of the Limitation Act, 1963, contemplating 30 years' limitation period; or whether 12 years' limitation period contemplated under Section 61(b) of Act, from the date of transfer became known to the plaintiffs is applicable in the facts and circumstances of this case and whether the Courts below were justified in holding that the suit was barred by limitation because the plaintiffs did not prove that within 12 years from the date of knowledge the suit was filed?
(2) Whether the plaintiffs are entitled to get the encumbrance certificates filed at the second appellate stage under Order 47 Rule 11 of CPC to prove that the date of knowledge of the plaintiffs was well within 12 years anterior to the filing of the suit?
(3) Whether the trial Court was justified in holding that limitation period is not contemplated for redeeming the mortgage involved in this case in view of the clauses in the mortgage deed-Ex.A2?"
7. Heard both.
8. M.P.No.1 of 2013 was filed under Order 41 Rule 27 of CPC seeking permission of this Court to file the following additional documents:
"Five encumbrance certificates dated 04.06.2004, 08.01.2004, 08.01.2004, 15.06.2004 and 03.02.2004"
9. The learned Senior Counsel for the plaintiffs would pyramid his argument, which could succinctly and precisely be set out thus:
(a) In paragraph no.7 of the plaint, even though the plaintiffs averred that they came to know about the alienations made by the mortagee only after applying for encumbrance certificate and obtaining certified copies of the documents concerned, both the Courts below simply held as though precisely in the plaint there was no reference to the date of knowledge of the plaintiffs about the alienation made by the assignee of the mortgagee.
(b) The trial Court held that the suit for redemption was not barred, as the mortgage deed empowers the mortgagor or his legal heirs to redeem the mortgage at any time. As against such finding, no appeal was filed by the defendants and there was no cross appeal also and as such, that finding has become final.
(c) From the date of knowledge of the alienations, the plaintiffs filed the suit within 12 years, but both the Courts below failed to take note of the same.
10. Per contra, in a bid to make mince meat of the arguments as projected on the side of the plaintiffs, the learned counsel for the defendants, would put forth and set forth his arguments, the warp and woof of the same would run thus:
(a) In the plaint, absolutely there is no averment relating to the date of knowledge on the part of the plaintiffs about Ex.A4, the sale deed dated 06.02.1973 and there is nothing to indicate that within 12 years from the alleged date of their knowledge the suit was filed. As such, both the Courts below concurrently held that the suit was barred by limitation, in view of the fact that Article 61(b) of the Indian Limitation Act contemplates 12 years' period from the date of knowledge of the alienation made by the mortgagee in favour of a third party.
(b) As per Section 30(a) of the Indian Limitation Act, the suit should have been filed within 7 years from the date of commencement of the Indian Limitation Act, so to say, with effect from 01.01.1964. But the suit itself was filed during the year 2006 and as such, on that count also the suit ought to have been dismissed and accordingly, dismissed and the first alienation by Palani Gounder the assignee of the mortgage in favour of Thannasi Gounder took place on 06.02.1973. However, the suit was filed only in the year 2006 long after 12 years and as such, the suit was barred by limitation and the courts below correctly appreciated the facts on record and decided the lis, warranting no interference in the Second Appeal.
(c) The additional documents cannot be entertained at this stage for the reason that even as per their own averments, they were in possession of those documents, but only at the second appellate stage, they simply filed them and absolutely there is no rhyme or reason on their part in retaining such documents all along with them.
(d) Citing various decisions, the learned counsel for the defendants, would pray for the dismissal of the Second Appeal as well as the miscellaneous petition.
11. I would like to fumigate my mind with the following decision cited on the side of the defendants:
(2000) 7 SCC 702 [Dilboo (Smt) (Dead) by Lrs. And others v. Dhanraji (Smt) (Dead) and others; an excerpt from it would run thus:
"20. This suit was governed by the Limitation Act of 1908. Articles 134 and 148 read as follows:
"Description Period of Time of suit limitation from which period begins to run
134. To recover Twelve When the possession of years transfer becomes immovable property known to the conveyed or plaintiff bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration * * *
148. Against a Sixty When the right mortgagee to redeem years to redeem or to or to recover recover possession of immovable possession property mortgaged accrues."
Thus a Suit for redemption of mortgage could be filed within 60 years. But if the mortgagee had created an interest in excess of the right enjoyed by him then to recover possession against the third party the Suit had to be filed within 12 years of the transfer becoming known to the Plaintiff. The rationale in cutting down the period of 60 years to 12 years is clear. The 60 years' period is granted as a mortgagee always remains a mortgagee and thus the rights remain the same. However when an interest in excess of the interest of the mortgagee is created then the third party is not claiming under the mortgagee. The position of such a person could not be worse than that of a rank trespasser who was in open and hostile possession. As the title of the rank trespasser would get perfected by adverse possession on expiry of 12 years so also the title of such transferee would get perfected after 12 years. The period of 12 years has to run from the date of knowledge by the Plaintiff of such transfer. It is always for the party who files the Suit to show that the Suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the Plaintiff would have to aver and then prove that the Suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the Plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the Plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge."
12. The learned counsel for the defendants placing reliance on the same would submit that Ex.A4 = Ex.B1 is a registered document, and as per the cited decision of the Hon'ble Apex Court, the plaintiffs should be taken as the ones who had deemed knowledge about the said sale deed.
13. He would also cite the decision of the Hon'ble Apex Court reported in (2006) 4 SCC 484 [Prabhakaran and others v. M.Azhagiri Pillai (Dead) by Lrs. And others; an excerpt from it would run thus:
"10. A learned Single Judge of the Madras High Court by judgment dated 1.9.1999, allowed the second appeal, and consequently, dismissed the suit, holding as follows :
(i)The concurrent finding of fact recorded by the trial court and first appellate court that Azhagiri Pillai (third defendant), did not acquire title by adverse possession, did not call for interference.
(ii)The assignment of mortgage by the mortgagee under deed dated 12.2.1954 did not amount to acknowledgement for extending limitation for filing a suit for redemption.
(iii)The mortgage was executed on 7.9.1935. The period of limitation for a suit for redemption was 30 years under Article 61(a) of the Limitation Act, 1963, while the period of limitation was 60 years under the corresponding Article 148 of the Limitation Act, 1908. Where the period of limitation under the new Act was shorter, having regard to Section 30 of the new Act, the suit ought to have been filed within 7 years from the date of commencement of the said Act. The new Act came into force on 1.1.1964. Therefore, the last date for filing the suit for redemption was 1.1.1971 and the suit filed on 16.11.1981 was barred by limitation.
(iv)The plaintiffs were not entitled to any relief under the provisions of the Tamil Nadu Debt Relief Act, 1979, as the mortgage was not subsisting on 15.7.1978, when the said Act came into force.
(v)The plaintiffs could not alternatively claim relief under the Tamil Nadu Agriculturist Relief Act, 1938 (Act 4 of 1938) as amended by Act 24 of 1950, as such a case was not pleaded.
13. Article 148 of the Limitation Act, 1908 (referred to as old Act ) provided a limitation of 60 years for a suit against a mortgagee, to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (new Act or Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished . This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 11. Article 148 of the Limitation Act, 1908 (referred to as old Act ) provided a limitation of 60 years for a suit against a mortgagee, to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 ( new Act or Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished . This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner."
14. Placing reliance on the same, the learned counsel would submit that after the commencement of the Limitation Act, within 7 years the suit ought to have been filed but no such suit was filed.
15. He would also cite the decision of the Hon'ble Apex Court reported in (2008) 3 SCC 120 [Basayya I.Mathad v. Rudrayya S.Mathad and others]; an excerpt from it would run thus:
"........
iv) The third infirmity is that though the parties to the proceeding can produce a document as additional evidence even in Appellate Court, undoubtedly, they have to adhere and satisfy the mandates provided under Order XLI Rule 27. For clarity, we hereby reproduce the same.
"27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
12. It is clear that parties to the lis are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in sub-clauses (a) and (aa). Admittedly, such recourse has not been resorted to either by the party concerned or were those principles adhered to by the High Court. Para 3 of his order shows that the learned Judge verified the document produced on his direction without complying the mandate as provided under Rule 27 of Order 41. Hence, we are of the view that the finding of the learned Judge based on a document produced at the time of argument de hors Rule 27 referred above cannot be sustained in the eye of law. In such circumstances, his ultimate conclusion treating the suit property as a family property partible among the members of the family is also liable to be set aside. In fact, sub-clause (2) of Rule 27 mandates that wherever additional evidence is allowed to be produced by an Appellate Court, it shall record the reason for its admission. It is needless to mention that the High Court neither followed those conditions for production of additional evidence nor recorded the reason for basing reliance on the same."
16. Placing reliance on the same, the learned counsel would submit that at this stage, the additional documents cannot be entertained as a matter of course.
17. Both the fora below did not give any finding as to whether the plaintiffs had knowledge about Ex.A4 - the sale deed of the year 1973 even anterior to the 12 years from the date of filing of the suit. However, they dilated on that point, by stating that the relevant documents were not filed to prove the date of knowledge of the plaintiffs about the said sale deed.
18. I would like to refer to the fact that admittedly the legal representatives of the original mortgagee namely the deceased Masa Gounder or even the legal representatives of the deceased Palani Gounder were not added as defendants in the suit. The suit for redemption would lie normally against the mortgagee or the assignee of the mortgagee or their respective legal representatives. But here, the first defendant happens to be the legal representative of the purchaser of the property from the assignee of the mortgage and D2 is the purchaser of the suit property from D1. As such, this aspect ought to have been considered by both the Courts below, but they have not considered this point at all.
19. Over and above that the trial Court went to the extent of holding that for redemption of mortgage in this case, no limitation period at all is required, because the clause in the mortgage deed would contemplate that the mortgage could be redeemed during the month of 'Chithirai' in any year. However, no appeal or cross appeal has been filed by the defendants in respect of such finding. Even then the learned counsel for the defendants would canvass his clients' case to the effect that, after the expiry of the five years period of mortgage, within 30 years period of limitation as contemplated under article 61(a) of the Indian Limitation Act, the suit for redemption should have been filed and the 30 years' period should have been calculated from 1949, so to say, after the expiry of the initial five years' period of mortgage contemplated in the mortgage deed Ex.A1.
20. As has been pointed by me above, in the absence of the legal representatives of the original mortgagee or the legal representatives of the assignee of the mortgage, it is not readily known as to how the suit for redemption was entertained by the trial Court and no specific issue also was framed by the trial Court on that count and certainly this aspect requires reconsideration along with the limitation point for filing the suit for redemption in view of the clause as found set out in Ex.A2.
21. The clauses in the provisions of law should be interpreted keeping in mind the maxims:
1. Verba generalia restringuntur ad habilitatem rei vel personae: General words may be aptly restrained according to the matter or person to which they relate.
2. Verba ita sunt intelligenda ut res magis valeat quam pereat: Words are to be so interpreted as to be effective rather than ineffective.
3. Verba generalia generaliter sunt intelligenda General words are to be generally understood, but such a thorough exercise was not undertaken by the Courts below.
22. The learned counsel for the defendants no doubt placed reliance on the concept 'deemed knowledge' of a registered document as found embodied in the precedent reported in (2000) 7 SCC 702 (cited supra). However, the learned Senior Counsel for the plaintiffs would try to distinguish on facts the present case and point out that the said precedent cannot verbatim be applied in the facts and circumstances of this case and according to him, in all cases it cannot be taken that irrespective of the date of real knowledge of the plaintiff concerning the impugned sale deed for filing a suit invoking article 61(b) of the Act, the deemed knowledge as canvassed by the learned counsel for the defendants should be applied.
23. This a very serious law point which should be considered. The poring over of the judgment of the Hon'ble Apex Court would demonstrate and exemplify that the Hon'ble Apex Court in various paragraphs repeatedly stressed upon the actual date of knowledge of the plaintiff concerned, who files the suit invoking article 61(b) of the Limitation Act and no doubt, the Hon'ble Apex Court also in one place in para no.20 of the judgment observed about the deemed knowledge concerning registered documents. As such, in a case the cumulative effect of the evidence has to be considered and found out as to what was the actual date of knowledge of the plaintiff in filing the suit. It is a common or garden principle of law that a precedent has to be read in full to understand the purport of it and the ratio decidendi embedded in it. The Hon'ble Apex Court in Dilboo case, (2000) 7 SCC 702 (cited supra), in my considered opinion, did not lay down the law to the effect that irrespective of the actual date of knowledge, the date of registration of the impugned sale deed should be taken as the starting point of limitation under Article 61(b) of the Limitation Act. Had it been so, then in Article 61(b) of the Limitation Act, the wordings would have been different to the effect that "From the date of registration of the impugned sale deed." In the factual matrix of this case, what I could find from the judgments of both the Courts below is that they found fault with the plaintiffs that even though the plaintiffs in paragraph no.7 of the plaint stated thus:
"7. The plaintiffs submit that they were under the impression that the mortgagee Masagounder in possession of the property and the plaintiffs wanted to repay the amount of Rs.100/= and to redeem the property mortgaged to Masanagounder. But to their shock and surprise they came to know that the 2nd defendant, a stranger is in possession and enjoyment of the said property. The plaintiffs submit that they applied for an encumbrance certificate in the Sub-registrar's office-made a search with respect to the schedule mentioned property and found out the following entries and obtained certified copy of the same, which are enclosed herewith as the Plaint doc no.1 to 5", they have not chosen to produce the documents along with the plaint.
24. At this juncture, I would point out that the trial Court before even numbering the suit should have simply returned the plaint holding that even though the encumbrance certificates were referred to in the plaint, they were not filed. Had it been done, then this impasse would not have engendered. The plaintiffs did not choose to file the encumbrance certificates earlier. The additional documents filed along with the M.P.No.1 of 2013 under 41 Rule 27 of CPC would reveal that those encumbrance certificates have not been obtained recently, but they were obtained well before the filing of the suit. Obviously those documents are public documents issued by the public authority. There is no denying of the fact that in the decision cited on the side of the defendants, it is found exemplified that as a matter of course, additional documents should not be entertained. Here it is a singularly singular case in which what I could note is that the plaintiffs in commensurate and in consonance with what they averred in para no.7 of the plaint, virtually even before the filing of the suit, applied for encumbrance certificates and scarcely could it be stated that there is no doubt about it. But they merely failed to file them in Court on the assumption that the documents 1 to 5, to wit, the certified copies of the very sale deeds and assignment deed as found set out in the list of documents in the plaint, which they filed in Court, would be sufficient to prove their date of knowledge about the impugned sale deed.
25. The very claim of the plaintiffs that they had knowledge about those deeds only on seeing the encumbrance certificates, should have been taken into account by both the Courts below, but they repeatedly found fault with the plaintiffs for not having filed any such document, and they did not pass any direction in this regard.
26. There is no gainsaying of the fact that normally it may not be the duty of the Court to give direction to the parties to file documents to fill up the lacuna, but when some crucial documents found referred to in the plaint are not filed, then courts would be justified in giving direction to the party to produce the documents.
27. At this juncture, I would like to recollect the legal adage "Every trial is a voyage of discovery in which truth is the quest" as laid down by the Hon'ble Apex Court in the decision reported in (2012) 5 MLJ 618 (SC) [A.Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam rep.by its President etc.]., an excerpt from it would run thus:
"42. On the facts of the present case, following principles emerge:
1. It is the bounden duty of the court to uphold the truth and do justice.
2. Every litigant is expected to state truth before the law Court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the Court should in addition to full restitution impose appropriate costs. The Court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. ........"
28. Their Lordships of the Apex Court in various precedents recognised the power of the court to give directions for the purpose of finding out the truth involved in the case. In this case, had such exercise been undertaken by the fora below, then there would have been no necessity, now for this Court to remand the matter back to the first appellate Court for considering these aspects. Simply because owing to inadvertence on the part of the plaintiffs, the documents, namely the encumbrance certificates referred to in the plaint were not filed, they cannot perpetuately be deprived of the opportunity to place before the Court the relevant facts and it is for the Court to consider as to whether the date of the obtention of the encumbrance certificates would constitute the actual date of knowledge of the impugned sale deed executed by Palani Gounder in favour of Thannasi. As of now, I do not want to express any opinion on the date of knowledge of the plaintiffs of the impugned deed. It is not as though Order 41 Rules 27 and 28 cannot be invoked even in a case of this nature.
29. I would recollect and call up the following maxim:
Actus curiae neminem gravabit : The act of the court harms no one.
In the precedent reported in (2012) 5 MLJ 618 (SC) (cited supra), the Hon'ble Apex Court has repeatedly held that the trial Court as well as the first appellate Court are expected to be pro active in deciding the lis. It is one thing to raise accusative finger as against the parties for not adducing evidence properly but it is yet another thing to give suitable direction by the Court for augmenting justice.
30. The learned counsel for the defendants by drawing the attention of this Court to the various parts of the evidence, would develop his argument to the effect that there is over whelming evidence to show that the plaintiffs and their purchasers had ample knowledge about the enjoyment of the suit property by third parties other than Masa Gounder and Palani Gounder. But they have not taken steps to file the suit for redemption or recovery of possession invoking either article 61(a) or 61(b) of the Limitation Act. No doubt, the courts below adverted to the oral evidence of both sides and held that the plaintiffs had knowledge about the possession of the suit property by third parties other than Masa Gounder and Palani Gounder, but there should have been a specific finding based on evidence about the precise alleged knowledge on the part of the plaintiffs about the sale deed effected by Palani Gounder in favour of Thannasi, even twelve years anterior to the date of filing of the suit.
31. When a specific event namely obtention of encumbrance certificates constitute knowlege of the date of the impugned sale deed, averred in the plaint, there is no rhyme or reason to usher in the concept of negligence on the part of the plaintiffs in not being vigilant and cautious even earlier to such event, whenever a law which is penal or usurping in nature, then that should be interpreted strictly and applied in a fact situation.
32. The observation of both the Courts below that paragraph no.7 of the plaint cannot be taken as sufficient averment, in my opinion, warrants interference. The parties rely upon the Advocates to draft and file the plaint. The plaint is in English. What I could understand in this factual matrix is that the parties are not that much well informed persons. I call up and recollect the maxim: "Ignorantia juris quod quisque scire tenetur, neminem excusat - Ignorance of law which everyone is presumed to know does not afford excuse and it is axiomatic and palpable that these punctilious of Court procedures in drafting plaint is something Greek and Hebrew even to intellectuals other than legal experts. In such a case, para 7 of the plaint cannot be read with a draconian eye and view. By and large, the plaint averments would convey and portray that they had knowledge on a particular occasion then that should be taken as sufficient pleadings. As such, solely on the ground that the plaint is niggard and bereft of the averment relating to date of knowledge, in my opinion is not correct. But I do not hold that whatever they averred in the plaint are true and correct and it is for the parties to prove it. This Court is not oblivious of the maxim:
Judicis est judicare secundum allegata et probata It is the duty of a Judge to decide according to the facts alleged and proved.
33. But the Courts below took a view that inasmuch there was no averment relating to the date of knowledge of the plaint, the plaint itself was bad and such a finding is a far fetched one in my opinion.
34. I would like to extract Section 30(a) of the Indian Limitation Act, thus:
"30. Provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act 1908. Notwithstanding anything contained in this Act,--
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act 1908 (9 of 1908), may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act 1908, whichever period expires earlier:
Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act 1908 (9 of 1908) and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted the period of limitation prescribed therefor under this Act;"
35. Ignoring the portion underlined by me in the proviso extracted supra, the learned counsel for the defendants would try to put forth the case as though in any event de hors other law points involved in this case, the plaintiffs should have filed the suit at the most within 7 years from the date of commencement of the Limitation Act, 1963, which came into vogue with effect from 1st January 1964, but the suit was filed only during the year 2006.
36. No doubt, in the earlier Indian Limitation Act, 1908, 60 years' period of limitation was contemplated for redemption of mortgage, but under the Limitation Act, 1963, as per Article 61(a), 30 years' limitation period only is contemplated for redemption of mortgage. Obviously 30 years' limitation period is shorter than 60 years' limitation period. The mortgages emerged anterior to the commencement of the Limitation Act, 1963 are also covered under Article 61(a) of the Limitation Act, 1963 and a mortgager could file the suit within 30 years, irrespective of the 7 years' period stipulated therein and it cannot be interpreted, as though all the mortgages emerged anterior to commencement of the Limitation Act, 1963, should be redeemed at the most within 7 years from 01.04.1964. The real scope of Section 30(a) of the Limitation Act 1963 is that a shorter period contemplated under the new act dwarfs the earlier longer period but it does not dwarf even that shorter period as contained in the Limitation Act, 1963 by stipulating that within 7 years, the suit should be filed.
37. I can further explain it by an illustration, that as on the date of commencement of the Limitation Act, 1963 with effect from 01.04.1964, if more than 30 years' from the date of mortgage had expired, say for example 35 years, then within 7 years from 01.04.1964 the suit should have been filed for redeeming the mortgage and if the shorter period of 30 years prescribed for redeeming the mortgage under the new Act expired well within 7 years from 01.04.1964 then it should be filed accordingly within such shorter period.
38. Here it is not the case of the plaintiffs that they had 60 years' limitation period for filing the suit; their contention is only to the effect that there was no limitation period at all for redeeming the mortgage in view of the peculiar clauses as found set out in the said mortgage deed.
39. The learned counsel for the defendants would cite the decision of this Court reported in AIR 1972 Madras 185 [R.Dhanalakshmi Ammal v. G.Anthuraj and others] to canvass the point that once the period for redeeming the mortgage got expired, the question of recovering the mortgaged property from third party by invoking Article 61(b) of the Limitation Act, 1963 would not arise. Even as per that view canvassed by the learned counsel for the defendants, in a suit for recovery of possession under Article 61(b) of the Limitation Act, 1963, there should be an issue as to whether the right of redemption got expired by efflux of time. But the trial Court did not frame any issue specifically on that point also and the appellate Court also has not considered the same.
40. Fit case, as it is, Order 41 Rule 33 of CPC could be invoked, even though no appeal has been filed by the defendants challenging the finding as against them relating to limitation point concerning redemption of mortgage to the effect that there was no limitation in view of the said clause in Ex.A2 referred to supra. I am of the view that the said view expressed by the trial Court requires reconsideration because that it involves a serious question of law and that has not been dealt with properly adverting to the following precedents of the Hon'ble Apex Court:
1. AIR 1958 SC 770 [Ganga Dhar v. Shankar Lal and others]
2. AIR 2006 SC 686 [Harbans v. Om Prakash and Ors.]
41. All told, the first appellate Court, on this case being remanded to it, should also consider that aspect along with the other aspects highlighted supra. Both the plaintiffs and the defendants should be given opportunity to put forth their respective evidence in full before the first appellate Court by adducing additional evidence both oral and documentary and whereupon, the Court is expected to render its reasoned judgment.
42. On balance, The substantial questions of law are answered to the effect that the Courts below have not decided the case properly and the first appellate court has also to decide the following additional issues as per law:
(1)Whether the prayer in the plaint for redemption of mortgage is tenable in the absence of having impleaded the legal representatives of Masa Gounder or the legal representatives of Palani Gounder, the assignee of the mortgage?
(2) Whether the clauses in Ex.A2 the mortgage deed could be construed as the ones stipulating five years' period of mortgage or not any period of mortgage, and whether there is anything to hold that there was no period of limitation for redeeming the mortgage in the facts and circumstances of this case?
(3) Whether the finding of the trial Court is in commensurate with the decisions of the Hon'ble Apex Court reported in AIR 1958 SC 770 [Ganga Dhar v. Shankar Lal and others] and in AIR 2006 SC 686 [Harbans v. Om Prakash and Ors.]?
(4) Whether the right of redemption by the plaintiffs got extinguished, and if so whether automatically their right to recover the property from the purchasers of the mortgage property also got barred?
43. The M.P.No.1 of 2013 is ordered allowing the plaintiffs to file the additional documents.
44. All told, the matter is remitted back to the first appellate Court for enabling the plaintiffs as well as the defendants to adduce additional oral and documentary evidence in respect of those additional issues framed supra, untramelled and uninfluenced by any of the observations made by this Court in rendering this judgment.
45. Both parties shall appear before the first appellate Court on 29.08.2013.
46. The first appellate Court shall do well to see that the matter is disposed of within a period of three months from the date of receipt of a copy of this order. Office is directed to send the original documents filed in M.P.No.1 of 2013.
Accordingly, this Second Appeal is disposed of. No costs.
24.07.2013 Index : Yes Internet: Yes NOTE TO OFFICE:
Issue order copy on 31.07.2013 To
1. The Principal Subordinate Judge, Tiruppur.
2. The District Munsif, Palladam.
G.RAJASURIA, J., gms S.A.No.1030 of 2012 24.07.2013