Andhra Pradesh High Court - Amravati
A.Archana vs D.Uma Maheshwar Reddy on 3 September, 2019
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
C.R.P.No.3795 of 2018
ORDER:
This revision petition is directed against the order of the Court of the learned V Additional District Judge-cum-Family Court, Titupati, in I.A.No.201 of 2018 in O.S.No.181 of 2013.
2. The petitioner, as plaintiff, filed the suit against respondent basing on three deeds of mortgage for different amounts, in all for Rs.48,40,000/-. 'A' and 'B' schedule properties in the plaint are covered by registered mortgage deeds dated 14.10.2010 and 13.04.2011 respectively. Whereas, 'C' schedule property shown in the plaint, is alleged to have been covered by an unregistered mortgage deed.
3. It is stated that the respondent, as defendant, admitted all these transactions in the written statement and had set up a plea of discharge.
4. In the course of trial when the petitioner wanted to exhibit the unregistered mortgage deed dated 27.09.2011, an objection was taken by the trial Court that it is not admissible for want of registration, though required stamp duty and penalty was paid thereon. According to the petitioner, on the directions of the Court below itself such exercise was undertaken.
5. The above petition was filed by the petitioner to permit her to exhibit this unregistered mortgage deed at the trial on her behalf referring to her case set out in the plaint and also the fact that the respondent did not dispute the nature of this transaction as well as its execution. It is the contention of the petitioner that she is enforcing the personal covenant in the unregistered mortgage deed whereby the respondent had agreed to repay the amount due under the above mortgage and thus, it is her case 2 MVR,J C.R.P.No.3795 of 2018 that she is relying on the original cause of action relating to exchange of loan consideration between her and the respondent.
6. However, considering the objection raised on behalf of the respondents that the above document is an unregistered document, the trial Judge observed in the order impugned, that the above document since requires registration under Section 17 of the Registration Act, cannot be marked. Thus observing, the petition filed for such purpose by the petitioner was dismissed.
7. Sri P.S.P. Suresh Kumar, learned counsel for the petitioner referring to all the above circumstances, contended that despite the fact that the trial Court observed that the ruling relied on by the petitioner of the composite High Court of Andhra Pradesh at Hyderabad in C.R.P.No.5972 of 2002 dated 23.01.2004 is 'true and binding', did not follow the principle explained therein and thus, it is contended that in the facts and circumstances, when the petitioner is only enforcing the personal covenant in the document sought to be exhibited, dismissal of the petition was uncalled for. Even otherwise, it is contended that in the circumstances when the document is sought to be used for collateral purpose, the trial Court could not have refused to introduce it in evidence. Thus contending, it is sought to allow the revision petition.
8. In spite of service of notice, none appeared for the respondent in this revision petition.
9. Now, the point for determination is - whether the order under revision refusing to permit exhibiting of unregistered mortgage deed dated 27.09.2011, is proper?
10. The petitioner specifically stated in her affidavit filed in the trial Court in I.A.No.201 of 2018 that she was enforcing the personal covenant 3 MVR,J C.R.P.No.3795 of 2018 in the unregistered mortgage deed in respect of 'C' schedule property whereby the respondent had agreed to repay the amount whenever they demand. However, the learned trial Judge considered the above recital as the main purpose and object of the document in question and not being an instance of collateral purpose. The petitioner has brought to the notice of this Court the observations of erstwhile composite High Court of Andhra Pradesh at Hyderabad in Umde Bhojram v. Wadla Gangadhar1, in this context and it was the ruling cited by the petitioner before the trial Court. It is further contended for the petitioner that the observations in respect of an unregistered mortgage deed being admissible in evidence, in terms of proviso to Section 49 of the Registration Act, 1908, could be considered by permitting to exhibit the same as a part of evidence. After reviewing the law, basing on the rulings of various High Courts including the High Court at Hyderabad, with reference to the application of Section 17(1)(c) as well as Section 49 of Registration Act, it was observed in paragraph-27 as under:
"As per the above decisions of various High courts, including this Court, an unregistered mortgage deed can be admitted in evidence for collateral purpose of recovery of money covered by an unregistered mortgage deed without touching upon the right regarding the property when there is a personal covenant to repay the debt, which is severable from other parts of the document."
11. It was also observed in paragraphs 30 to 32 in given facts of the case, as under:
"30. In the light of the principle laid down by the majority of the Courts I am also of the view that an unregistered simple mortgage deed disclosing any 1 2004 (2) ALT 367 4 MVR,J C.R.P.No.3795 of 2018 covenant undertaking to discharge the liability personally by the mortgagor without reference to the mortgaged property is admissible in evidence to prove the suit debt.
In the case on hand, the relevant portion of the unregistered simple mortgage deed dated 10.10.1996 reads as follows:
By this deed I agree that I will repay the entire amount prior to Ugadi 1997 and will get back my land and this document. If in case of my failure to repay the amount, the period of agreement will be extended for one more year automatically. Till the amount is repaid, I or my legal heirs or successors will not claim any right in possession, if any. Such claim if made will be null and void and its entire responsibility will be mine.
The lower court after going through the said document observed that there is no covenant undertaking to discharge the liability personally without reference to the mortgage property and from the above recital it cannot be said that the executants agreed to pay the money personally. The lower court erred in not taking into consideration the above underlined portions of the unregistered simple mortgage deed regarding the personal under raking given by the executants. Since the suit is for recovery of money covered by the claim, it can be marked for collateral purpose for the recovery of money. The order of the lower court is therefore liable to be set aside."
12. In the light of the above ruling which has considered the law in this respect, the observations of the trial Court cannot stand and necessarily they have to be set aside.
13. In the result, the civil revision petition is allowed setting aside the order of the Court of learned V Additional District Judge-cum-Family Court, Tirupati, dated 13.06.2018. Learned trial Judge is directed to permit the petitioner to exhibit unregistered mortgage deed dated 27.08.2011, for collateral purpose on her behalf in the course of trial. However, liberty is given to the respondent to raise all such objections in respect of this document in the final arguments in the suit, with reference 5 MVR,J C.R.P.No.3795 of 2018 to its admissible nature as is legally open, which shall be taken into consideration by the learned trial Judge subject to hearing both the parties in this context. There shall be no order as to costs.
14. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ M. VENKATA RAMANA, J.
3rd September, 2019 Js.
6 MVR,J C.R.P.No.3795 of 2018 HONOURABLE SRI JUSTICE M. VENKATA RAMANA C.R.P.No.3795 of 2018 3rd September, 2019 Js.