K.Ramanjulu vs M.Sundaramma
2023 Latest Caselaw 514 AP

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                   SECOND APPEAL No.21 of 2023

   Between:

   K.Ramanjulu, S/o Dasanna, aged about 36
   years, Occ: Cultivation, D.No.4/114, Masid
   Street, Pedda Tippasamudram village & Mandal,
   Chittoor District.
                                       ... Appellant/Defendant.
               Versus

   M.Sundaramma, W/o late M.Munaswamy,
   Reddy, aged about 73 years, Chandrakantha
   Street, Punganur Town, Chittoor District and two
   others.
                                       ... Respondents/Plaintiffs.

Counsel for the appellant        : Sri S.V.Muni Reddy
Counsel for respondents          : ---

                               JUDGMENT

Defendant, in the suit, filed the above second appeal

aggrieved by the judgment and decree dated 08.09.2022 in

A.S.No.118 of 2016 on the file of II Additional District Judge,

Madanapalle confirming the judgment and decree dated

23.08.2016 in O.S.No.403 of 2014 on the file of Principal Senior

Civil Judge, Madanapalle.

2. For the sake of convenience, the parties to this judgment

are referred to as per their array in the plaint.

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3. Plaintiffs filed suit O.S.No.403 of 2014 for recovery of

money basing on registered simple mortgage dated 07.10.2011

and for passing preliminary decree etc.

4. The averments in the plaint, in brief, are that 1st plaintiff

is wife and plaintiffs 2 and 3 are children of late Munaswamy

Reddy. The defendant, owner of suit schedule property,

borrowed an amount of Rs.2,00,000/- on 07.10.2011 from

deceased Munaswamy Reddy and agreed to pay the same with

interest @24% p.a. Defendant executed a registered simple

mortgage deed dated 07.10.2011 in favour of Munaswamy

Reddy by mortgaging the schedule property. In spite of

demands made by Munaswamy Reddy, defendant failed to

discharge the amount. Munaswamy Reddy died on 13.07.2014

leaving behind him, the plaintiffs as his legal heirs. Plaintiffs got

issued a legal notice dated 11.08.2014 and filed the suit for

recovery of Rs.3,39,066/-.

5. Defendant filed written statement and contended interalia

that he did not mortgage the schedule property with

Munaswamy Reddy on 07.10.2011. Plaint schedule property

neither stood in his name nor in his possession. Plaint schedule

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property is standing in the name of third parties as per the

entries in ROR/1-A and 1-B as well as No.2 adangal of

Rangasamudram village. The deceased Munaswamy Reddy had

no capacity to advance Rs.2,00,000/- and eventually prayed the

Court to dismiss the suit.

6. Basing on the pleadings, trial Court framed the following

issues:

(1) Whether the suit registered simple mortgage deed dated 07.10.2011 is true, valid and binding on the defendant?

(2) Whether the suit is not maintainable for non-filing of succession certificate?

(3) Whether the plaintiff is entitled for suit claim? (4) To what relief?

7. On behalf of plaintiff, 3rd plaintiff examined himself as

P.W.1 and got examined scribe as P.W.2 and attesting witness

as P.W.3. Exs.A-1 and A-2 were marked. On behalf of

defendant, defendant examined himself as D.W.1 however, no

documents were marked.

8. Trial Court on consideration of oral and documentary

evidence, decreed the suit on 23.08.2016 and preliminary

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decree was passed for Rs.3,39,066/- with interest @12% per

annum from the date of suit till the date of decree and @6% per

annum from the date of decree till the date of realization on

Rs.2,00,000/-. Two months time is granted for redemption.

9. Aggrieved by judgment and decree in suit, defendant filed

appeal A.S.No.118 of 2016 on the file of II Additional District

Judge, Madanapalle. Lower appellate Court being final fact

finding Court on consideration of both oral and documentary

and legal aspects and after framing necessary point for

consideration under Order XLI Rule 31 of CPC, dismissed the

appeal by judgment dated 08.09.2022. Aggrieved by the same,

the present second appeal is filed.

10. Heard Sri S.V.Muni Reddy, learned counsel for appellant.

11. Learned counsel for the appellant would submit that the

suit is not maintainable without filing succession certificate. He

would also submit that the plaintiffs failed to prove Ex.A-1. He

would submit that the Courts below failed to appreciate the

evidence in proper perspective.

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12. The following substantial questions of law arise for

consideration in this second appeal:

(1) Whether succession certificate under Sec 214 of Indian Succession Act is necessary to institute the suit filed basing on registered simple mortgage?

(2) Whether the defendant executed registered simple mortgage deed dated 07.10.2011 in favour of deceased M.Munaswamy Reddy?

13. It is apt to extract Section 214 of the Succession Act,

1925, which reads thus:

214. (1) No Court shall - Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased presents:-

(a)Pass a decree against a debtor of a deceased person for payment of this debt to a person claiming on succession to be entitled to the effects of the deceased person or the any part thereof, or

(b) Proceed, upon an application of a person claiming to be so entitled to execute against such a debtor a decree or order for the payment of his debt, Except on the production, by the person so claiming, of- (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii) a certificate granted under Section 31 or Section 32 of the Administrator General's Act, 1913 (III of 1913) and having the debt mentioned therein, or

(iii) a succession certificate granted under Part X and having the debt specified therein, or

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(iv) a certificate granted under the Succession Certificate Act, 1889, (VII of 1889) or

(v) a certificate granted under Bombay Regulation No. VIII of 1827, and if granted after the first day of May, 1889, having the debt specified therein. (2) The word "debt" in sub-section (1) includes any debt except rent, revenue of profits payable in respect of a land used for agricultural purposes.

14. A plain reading of the aforementioned provision, it is clear

that Section 214 (a) provides to decree against debtor of a

deceased qua the debt (b) provides for the cases where the

courts are executing the decrees involving a debt.

15. Whether a decree for enforcement of the mortgagee's right

as against the mortgaged property amounts to debt and it

requires succession certificate under Section 214 of the Indian

Succession Act, 1925?

16. In Venkatalakshmi Vs. The Central Bank1, wherein it

was held that:

"The object of taking out a succession certificate under Section 214 of the Indian Succession Act is to give security to the debtors paying the debts due to the deceased and thus facilitate the collection of debts on succession. The purpose of the Act is not to enable litigant parties to have an opportunity of litigating contested questions of title to property. When a Bank is satisfied that the applicant is entitled to collect the debts it should not prescribe onerous conditions which are in no way necessary for its safety.

(1956) 2 MAD.L.J. 114

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17. In A.Ramaswami Vs. K. Venkamma2, the composite High

Court of Andhra Pradesh held thus:

"7. We do not think that we can accede to this proposition. It is true that the case cited above countenances this proposition but we are not inclined to share the view expressed by the Allahabad High Court in that case. In our considered opinion, the debt contemplated by Section 214 of the Indian Succession Act would not govern a decree for the enforcement of the mortgagee's right as against the mortgaged property, as it is not a decree for debt. This is the view which the Madras High Court had taken in Ammanna v. Gurumurthy MANU/TN/0153/1892 : ILR Mad 64 and Palaniyandi Pillai v. Veerammal ILR Mad

77. These two rulings have stood the test of time for over half a century.

8. In ILR Mad 64 it was ruled by a Bench of the Madras High Court that a succession certificate under Section 4 of Act VII of 1889, which corresponds to Section 214 or the Indian Succession Act 39 of 1925, was not necessary for obtaining a decree for foreclosure or sale by the heirs of the mortgagee, as, in such a case, the suit could not be regarded as one to recover the debt. In ILR ALL 259(FB), the ruling of the Madras High Court cited above was distinguished on the ground that the relief prayed for in that case was foreclosure. We do not think that distinction is really valid. (emphasis is mine)

12. Thus, there is a strong current of authority in favour of the opinion that Section 214 does not govern decrees for enforcement of mortgage rights. It may be different with reference to a personal decree for debt. But, here, the personal remedy is not sought to be enforced. The mere fact that the personal remedy is still available to the mortgagee would not make any difference. It is open to the judgment- debtor to raise such an objection as and when such remedy is sought to be availed of. It follows that the contention urged on behalf of the appellant has to be put aside."

AIR 1963 AP 135

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18. In Gopala Panicker & others Vs. Assanissa & Others 3, it

was observed as follows:

1. Two points have been pressed before me in this second appeal neither of which has been adverted to by- because, obviously, they have not been pressed before-the Courts below. The point taken viz., that the execution of the decree in question could be allowed only on production of a succession certificate, was upheld by both the Courts because, as presented before them, it was a debt which was sought to be enforced and naturally, S. 214(1)(b) of the Succession Act applied since it was the stage of execution.

2. While I have no doubt that the Courts below have stated the correct law they have missed two aspects which have been dealt with before me at the bar. The suit was one for redemption of a mortgage, and it is obvious that neither such a suit nor an execution of a redemption decree, requires production of succession certificate.

19. In Arumugam Pillai Vs. Valura Koundan and Ors4,

Division Bench of Madras High Court observed as follows:-

"2. The only other question is whether the plaintiff is not entitled to the decree he obtained in the Court of First Instance by reason of his not having produced a certificate of heirship. That decree is not for money due under a contract, but is in reality the assessment in money by the District Munsif of the value of the plaintiff's mortgage interest. In strictness the plaintiff was entitled to a decree for the land itself, and it was only by his consent that money was awarded in lieu of the land. The amount cannot, therefore, rightly be treated as a debt within the meaning of the Succession Certificate Act. The failure of the plaintiff to produce a certificate was, therefore, no bar to the decree he got. We accordingly reverse the decree of the Subordinate Judge, and we restore that of the District Munsif with the

1969 SCC OnLine Ker 56

(1901) ILR 24 Mad 22 = MANU/TN/0084/1900

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modification that the fifth defendant is not personally liable, nor any of his property except the mortgaged property, to the decree. The fifth defendant will pay the costs of the plaintiff in this and in the lower Appellate Court."

20. In Aysha Beevi Mariya Ummal Kunju and Ors. Vs.

Abdul Karim Rahuma Beevi and Ors5, learned single judge of

the Kerala High Court observed as follows:-

"8. For passing a preliminary decree or final decree for sale of the property or even execution of the decree thereof for the realisation of the mortgage money in a suit or its execution instituted by the legal representatives of the mortgagees, they shall not be asked to produce a succession certificate as required by Section 214 of the Indian Succession Act, 1925 as the debt defined in that Section does not include a decree for the enforcement of the mortgagee's right as against the mortgaged property."

21. In T.Rama Seshagiri Rao and Ors. Vs.

N.Kamalakumari6, learned single Judge of the composite High

Court observed as follows:

"It is now well settled that, in order to execute a mortgage decree, no succession certificate is necessary, because a mortgage is not a debt within the meaning of S. 214 of the Indian Succession Act, and a suit to enforce a mortgage is not a suit for a debt. A suit to recover money due on a simple mortgage by sale for recovery of a debt, but it is a suit to enforce a charge on immovable property and no succession certificate need be obtained by the heirs of the mortgagee to recover the money. Similarly, an application for execution of a mortgage decree for realisation of the amounts by sale of the mortgaged property is not an application to obtain an order for payment of his debt."

AIR 1972 Ker 64

AIR 1982 AP 107

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22. In Khader Bee and Ors. Vs. Mohammad Vazir and

Ors.7, the learned Single Judge of composite Andhra

Pradesh High Court was concerned with the question

whether Succession Certificate as contemplated under

Section 214 of the Indian Succession Act, 1925 is required

for the purpose of executing a decree obtained in the suit for

partition of immovable properties. The court answered the

question in negative by observing thus:

"The question raised in this revision petition has been considered by this Court in T. Rama Seshagiri Rao and anr. vs N.Kamalakumari : MANU/AP/0191/1982 : AIR 1982 AP

107. This Court while interpreting Section 214 of the Indian Succession Act has held as under:

Where execution petition was filed by the legal representative of the deceased decree holder for execution of the decree for maintenance with charge the legal representative would not be required to obtain a Succession Certificate before executing the decree for maintenance and for execution of a decree for costs.

XXX XXX XXX

A suit to recover money due on a simple mortgage by sale of the mortgaged property is a suit for recovery of debt, but it is a suit to enforce a charge on immovable property and no succession certificate need be obtained by the heirs of the mortgagee to recover the money, therefore, an application for execution of a mortgage decree for realisation of the amounts by sale of the mortgaged property is not an application to obtain an order for payment of debt.

2001 (2) ALT 513

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4. In another case in S.Rajayalakshmi v. Smt. S. Sitamahalakshmi, this Court considered the applicability of Section 214 of the Act. This Court held that the Succession Certificate is necessary, if a debt is sought to be recovered, for the purpose of other items of the decree, Succession Certificate is not necessary. In the present case, execution proceedings have been filed in pursuance of the decree obtained in the suit for partition of immovable properties. Hence, succession certificate is not required as contemplated under Section 214; since it is not a debt within the meaning of subsection (2) of Section 214 of the Indian Succession Act.

23. Thus, a careful perusal of the above authorities this court

concludes that mortgagee's right as against the mortgaged property

doesn't amounts to debt and hence there is no necessity to get

succession certificate to institute the suit for recovery of

amount on the strength of registered simple mortgage.

24. 3rd Plaintiff examined himself as P.W.1 got examined

P.Ws.2 and 3, scribe and attestor of Ex.A-1. P.W.1 deposed

about his father lending amount to defendant under Ex.A-1 and

the defendant's failure to repay the amount in spite of demands.

Ex.A-2 is legal notice issued on behalf of plaintiffs. P.W.2 scribe

and P.W.3 attesting witness deposed about defendant borrowing

Rs.2,00,000/- from deceased Munaswamy Reddy. The evidence

of P.Ws.1 to 3 is consistent regarding borrowal of amount by

defendant from deceased Munaswamy Reddy. In the cross

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examination of P.Ws.1 to 3, nothing contra was elicited to

discredit their evidence. In view of consistent evidence of

P.Ws.1 to 3, it can be presumed that Ex.A-1 is supported by

consideration.

25. In Bharat Barrel and Drum Manufacturing Company

Vs. Amin Chand Payrelal8, the Hon'ble Apex Court held thus:

"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non- existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any

AIR 1999 SC 1008

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defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."

26. In view of expression of the Hon'ble Apex Court in the

above judgment, if the execution of document is admitted, a

presumption would arise that it is supported by consideration.

In the case on hand, the plaintiffs discharged the initial burden

of proving that Ex.A-1 executed by defendant and passing of

consideration. By examining scribe and attestor as P.W.2 and

P.W.3, Ex A-1 was duly proved. Thus, the onus of proof shifts to

defendant to rebut the said presumption. However, defendant

failed to discharge the burden.

27. Defendant in the cross examination deposed that

signature on Ex.A-1 does not belongs to him. He also deposed

that signatures shown to him on vakalat and written statement

also do not belong to him. The defendant while denying

signature on Ex.A-1 also denied his signatures on vakalat and

written statement. Thus, the evidence of D.W.1 would manifest

that defendant went to the extent of denying his signatures on

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vakalat and written statement. Thus, the defendant failed to

rebut the presumption under Section 118 (a) of the Act.

28. The Courts below after careful scrutiny of pleadings and

evidence on record, decreed the suit. This Court while

exercising jurisdiction under Section 100 of the CPC must

confine to the substantial question of law involved in the

appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Court below where

the Courts below have exercised the discretion judicially.

Further the existence of substantial question of law is the sine

qua non for the exercise of jurisdiction. This Court cannot

substitute its own opinion unless the findings of the Court are

manifestly perverse and contrary to the evidence on record.

Moreover, unless the appellant establishes that the Courts

below mis-read the evidence and misconstrued the documents,

the High Court normally will not interfere with the findings of

fact recorded by the Courts below.

29. The findings of the fact recorded by the Courts below are

based on appreciation of evidence. Unless, the appellant

demonstrates that substantial question of law involved in the

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second appeal, interference of this Court in exercise of

jurisdiction under Section 100 of CPC is not warranted. No

question of law much less substantial questions of law arose in

the appeal. Hence, the second appeal is liable to be dismissed,

however, without costs.

30. Accordingly, the second appeal is dismissed at admission

stage. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 31st January, 2023

PVD