Annapurnamma W/O Siddareddy vs Mogalamma W/O Manikappa
2024 Latest Caselaw 3595 Kant

Karnataka High Court

Annapurnamma W/O Siddareddy vs Mogalamma W/O Manikappa on 7 February, 2024

Author: Rajendra Badamikar

Bench: Rajendra Badamikar

                            1            RSA.No.7164/2012



           IN THE HIGH COURT OF KARNATAKA

                  KALABURAGI BENCH

      DATED THIS THE 7TH DAY OF FEBRUARY, 2024

                         BEFORE

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

      REGULAR SECOND APPEAL NO.7164 OF 2012

BETWEEN

 1. ANNAPURNAMMA W/O SIDDAREDDY
    AGE: 65 YEARS, OCC: AGRICULTURE
    & HOUSEHOLD,

 2. RAMREDDY S/O SIDDAREDDY
    (SINCE DECEASED) BY HIS LRS,

    2(A). NARASAMMA W/O RAMREDDY
          AGE: 45 YEARS, OCC: AGRICULTURE,

    2(B). YELLAREDDY S/O RAMREDDY
          AGE: 21 YEARS, OCC: AGRICULTURE,

  3. DATTATRAYAREDDY S/O SIDDAREDDY
      AGED 43 YEARS, OCC: AGRICULTURE,

  4. KRISHNAREDDY S/O SIDDAREDDY
     AGED 40 YEARD, OCC: AGRICULTURE,

    ALL R/O VILLAGE PATPALLI, TQ. CHINCHOLI,
    DIST. GULBARGA-585307.

                                             ...APPELLANTS
(BY SRI SHIVANAND PATIL, ADVOCATE)
                                     2              RSA.No.7164/2012



AND

1. MOGALAMMA W/O MANIKAPPA
 AGED 75 YEARS, OCC: HOUSEHOLD,

2. MALLAMMA W/O VIJAYKUMAR
   AGED 50 YEARS, OCC: AGRICULTURE,
   BOTH R/O VILLAGE PATAPALLI,
   TQ. CHINCHOLI, DIST. GULBARGA-585307.
                                                   ...RESPONDENTS

(BY SRI A. M. BIRADAR, ADVOCATE)

     THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO CALL
FOR AND EXAMINE THE RECORDS IN O.S.NO.137/2006 OF THE
PRINCIPAL   CIVIL  JUDGE    JMFC   AT   CHINCHOLI   AND
R.A.NO.34/2011 OF THE SENIOR CIVIL JUDGE CHINCHOLI, AND
ALLOW THE APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND DECREE DATED 18.02.2012 IN R.A.NO.34/2011
AND THE JUDGMENT AND DECREE DATED 07.07.2011 IN
O.S.NO.137/2006 AND IN THE RESULT DISMISS THE SUIT OF
THE PLAINTIFFS.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.01.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                             JUDGEMENT

This appeal is filed by the appellants/defendants

challenging the judgment and decree passed in

O.S.No.137/2006 on the file of the learned Principal Civil

Judge and JMFC, Chincholi dated 07.07.2011 and confirmed

by the learned Senior Civil Judge, Chincholi in

R.A.No.34/2011 vide judgment dated 18.02.2012.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the Trial Court.

3. The brief factual matrix leading to the case are as

under:

The plaintiffs filed a suit against the defendants for

declaration of their ownership over the suit property with

consequential relief of injunction. It is the contention of the

plaintiffs that the suit property is measuring 4 acres in

Survey No.27, which is specifically described in the schedule.

That one Siddareddy was the owner and possessor of the

land bearing Survey No.27 totally measuring 31 acres 28

guntas. Out of the same, the suit property measuring 4

acres is mortgaged by Siddareddy to one Manikappa. That

said Siddareddy died about two years back leaving behind

the defendants as his legal heirs. That Siddareddy had

mortgaged the property for his legal necessity for a sum of

Rs.4,000/- in favour of Manikappa and put the said

Manikappa in actual possession of the suit property. That

the mortgage period was for four years from 09.05.1969 to

08.05.1973. It is the further contention of the plaintiffs that

as per the condition of the mortgage, Siddareddy was

required to redeem the mortgage after completion of the

period by paying full mortgage amount failing which it is

required to be treated as a sale. As per the terms of the

mortgage, Manikappa was in possession and enjoyment over

the suit property and his name was mutated in the revenue

records. He died on 03.01.2005 leaving behind the plaintiffs

as his legal heirs. It is asserted that after his death, the

plaintiffs have acquired right, title and interest over the suit

property and they are in possession and the defendants have

lost their right of redemption and that the limitation for

redemption was over. That the defendants are trying to

dispossess the plaintiffs from the suit property and hence,

the plaintiffs claim to have filed the suit.

4. Defendant Nos.1 to 4 have appeared through their

counsel and filed their written statement admitting the

mortgage deed executed by Siddareddy for a sum of

Rs.4,000/-. However, it is the contention of the defendants

that after completion of the mortgage period, Siddareddy has

paid Rs.4,000/- to Manikappa in the presence of Ramshetty

and Jaganath on 01.05.1979 and on the same day

Manikappa had handed over the vacant possession of the

suit property to Siddareddy and since then Siddareddy was in

possession of the suit property. It is asserted that neither

the plaintiffs nor Manikappa have any right, title or interest

over the suit property. It is further asserted that Manikappa

being a honest man had executed an agreement on

16.07.2004 in the presence of the aforesaid witnesses

acknowledging receipt of Rs.4,000/- and handing over

possession of the suit property. It is asserted that

Siddareddy had redeemed the mortgage on 01.05.1979 itself

and as such, there is no question of losing the right of

redemption and hence, the defendants have sought for

dismissal of the suit.

5. On the basis of these pleadings, the Trial Court

framed the following issues:

1. Whether the plaintiffs prove that, they are owners in possession of the suit property?

2. Whether the plaintiffs further prove that the defendants are tried to dispossess the plaintiffs from the suit property?

3. Whether the defendants prove that on 01-05-

1979 late Manikappa had received Rs.4,000/- form the late Amatha reddy and handed over the possession of the suit property and executed consent deed?

4. Whether the plaintiffs are entitled for permanent injunction?

5. Whether the suit is under valued and Court Fee paid is insufficient?

6. Whether the Court has got jurisdiction to try this suit?

7. Whether the plaintiffs are entitled for reliefs as sought?

8. Whether the defendants are entitled for compensatory cost of Rs.5,000/- from the plaintiff?

9. What order of decree?

6. Plaintiff No.2 was examined as PW.1 and placed

reliance on Exs.P1 to P5. Defendant No.1 herself got

examined as DW.1 and four witnesses were examined as

DWs.2 to 5 and Exs.D1 to D12 were relied.

7. After hearing the arguments and after

appreciating the oral and documentary evidence, the learned

Civil Judge has answered issues Nos.1, 2, 4, 6 and 7 in the

affirmative while issue Nos.3, 5 and 8 were answered in the

negative and accordingly, decreed the suit of the plaintiffs.

8. Being aggrieved by this judgment and decree, the

defendants have filed an appeal in R.A.No.34/2011 on the

file of the learned Senior Civil Judge, Chincholi. The learned

Senior Civil Judge after re-appreciating the oral and

documentary evidence has dismissed the appeal by

confirming the judgment and decree passed by the Trial

Court. Against these concurrent findings, the defendants are

before this Court by way of this second appeal.

9. This Court by order dated 20.09.2019 has framed

the following substantial questions of law:

1. Whether the plaintiffs have become absolute owner of the schedule property through the Mortgage Deed 17.05.1969, which is not redeemed?

2. Whether the mortgagee becomes the absolute owner of the mortgaged property without there being a foreclosure?

3. Whether the right of redemption of mortgage is fettered by passage of time?

4. Whether the defendants prove that mortgage is is redeemed?

10. Heard the arguments advanced by the learned

counsel for the appellants/defendants and the learned

counsel for the respondents/plaintiffs. Perused the records.

11. The learned counsel for the appellants would

contend that there is no dispute that Siddareddy was the

owner as well as mortgage in favour of Manikappa and

execution of the mortgage deed on 09.05.1969 for

Rs.4,000/-. It is his contention that the mortgage is a

usufructuary mortgage. He would contend that since it is a

usufructuary mortgage, there is no limitation fixed and

merely on the ground that the mortgage was not redeemed

in 30 days, the claim of the plaintiffs cannot be entertained.

Further, he asserts that on 01.05.1979 a sum of Rs.4,000/-

was paid to Manikappa and he acknowledged the same by

executing Ex.D12. He would contend that in the year 1979

itself, the name of Manikappa came to be deleted by entering

the name of Siddareddy and the plaintiffs have failed to

prove their possession. He would contend that the negative

burden is casted on the defendants and under Section 123 of

the Transfer of Property Act, 1882 (for short 'T. P. Act') there

is a strong presumption in favour of the defendants. He

would contend that Exs.D4 to D11 establish that the suit

property is in the name of the defendants from the year

1979, but, the same was not considered by the Trial Court.

He would also invite the attention of the Court to Article 62

of the Limitation Act, 1963 and contended that there is no

limitation for usufructuary mortgage and Article 61 of the

Limitation Act is not applicable as once a mortgage always it

is a mortgage and title never passes. He would contend that

only right of foreclosure for recovery of mortgage money was

available to the plaintiffs. He would further assert that the

plaintiffs have not produced the original mortgage deed and

certified copy is produced without foundation. He would

contend that there is no mutation entry and the land revenue

receipts are not produced by the plaintiffs and no

independent witnesses were examined and Ex.D12

establishes the receipt of the amount by mortgagee. Hence,

he would contend that the suit for declaration is not

maintainable and the plaintiffs could have filed only suit for

foreclosure, but, now they are claiming title and hence, he

would contend that none of these aspects were properly

appreciated by the Trial Court as well as the First Appellate

Court. Hence, he would seek for allowing the appeal by

setting aside the impugned judgments of both the Courts

below by dismissing the suit.

12. Per contra, the learned counsel for the

respondents would contend that there is no dispute of the

fact that Siddareddy was the owner and he mortgaged the

suit property in favour of Manikappa. He would also contend

that the mortgage was for a period of four years from

17.05.1969 and admitted mortgage amount was Rs.4,000/-.

According to him, on 08.09.1973, the mortgage period was

over and Ex.P2 is a registered mortgage deed. It is his

specific contention that this is not a usufructuary mortgage

but it is a mortgage with conditional sale falling under

Section 58(c) of the T. P. Act. He would also contend that

the evidence of DWs.1 to 3 is inconsistent and the signature

on Ex.P5 having compared with admitted signature of

Manikappa does not tally with the signature on Ex.D12. He

would also contend that no suit for redemption of mortgage

is filed and no counter claim is also made. According to him,

there is no evidence regarding payment of mortgage amount

and possession of the defendants and they have also not

produced any land revenue receipts to prove their possession

as asserted by them. He would contend that when the

mortgage is not redeemed within the specified period, as per

the condition of the mortgage deed, it is a mortgage by

conditional sale and Manikappa has acquired title over the

suit property and now after the death of Manikappa, the

plaintiffs have became the owners and possessors of the suit

property. Hence, both the Courts below have properly

appreciated the oral and documentary evidence in detail and

no illegality or infirmity is found in this regard. Hence, he

would seek for dismissal of the appeal.

13. Having heard the arguments and perusing the

records, the undisputed facts are that the suit property

measuring 4 acres is a part of Survey No.27, which was

owned by Siddareddy. It is further admitted fact that

Siddareddy had mortgaged the suit property in favour of

Manikappa on 17.05.1969 by executing a registered

mortgage deed. The plaintiffs are legal representatives of

Manikappa while the defendants are legal representatives of

Siddareddy. It is also an admitted fact that the mortgage

amount was Rs.4,000/-. The main contention of the

defendants is that the mortgage is a usufructuary mortgage.

In this regard, it is necessary to consider the mortgage deed

produced at Ex.P2. Regarding recitals of the mortgage,

there is no dispute between the parties. Further, this

mortgage is also evidenced by Ex.P1 - mutation entry. On

perusal of this mortgage deed, it is evident that the

mortgage was for a period of four years from 09.05.1969 to

08.05.1973. The recitals of the mortgage also clearly

disclose that prior to execution of the deed for Rs.1,700/-

was paid and subsequently Rs.2,300/- was paid at the time

of the execution of the deed before the Sub Registrar and

possession was handed over. It is relevant to note here that

there is a specific condition in the mortgage deed that if

immediately after the mortgage period is over, if it is not

redeemed by paying the mortgaged amount within a

stipulated period, the mortgage is required to be treated as

sale deed.

14. Section 58 of the T. P. Act defines the mortgage.

As per Section 58 of the T. P. Act., a mortgage is the transfer

of an interest in specific immovable property for the purpose

of securing the payment of money advanced or to be

advanced by way of loan, an existing or future debt, or the

performance of an engagement which may give rise to a

pecuniary liability. Section 58 (c) of the T. P. Act defines

conditional sale as under:

"Section 58(c): Mortgage by conditional sale: where the mortgager ostensibly sells the mortgage property-

on condition that on default of payment of the mortgage on a certain date, the sale shall become absolute, or

on condition that on such payment being made, the sale shall become void, or on condition that on such payment being made, the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgage, a mortgage by conditional sale:

Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale."

15. All along the contention of the defendants is that

the mortgage is a usufructuary mortgage and falls under

Section 58(d) of the T. P. Act. As per Section 58(d) of the T.

P. Act, the mortgagee is entitled to retain the mortgaged

property till the repayment of mortgage money and receive

the rents and profits accruing from the property. But, the

mortgage by conditional sale is different wherein if there is a

condition that on default of payment of mortgage amount on

certain dates, the sale shall become absolute. Admittedly, in

the instant case, though it is a mortgage, there is a condition

that within a stipulated period immediately after completion

of the mortgage period, it is required to be redeemed by

paying the mortgage amount and on failure to do so, it is

required to be treated as sale deed. This condition is not

disputed by the defendants. When it is a mortgage of

conditional sale, the contention of learned counsel for the

appellants that it is a usufructuary mortgage cannot be

accepted.

16. The main contention of the defendants is that

Siddareddy has paid the mortgaged amount to Manikappa on

01.05.1979 and subsequently on 16.07.2004 he executed an

agreement in this regard. At the outset, Ex.D12 -

agreement is relied by the defendants and to prove the

same, DWs.2 and 3 were examined. Defendant No.1 who is

examined as DW.1 has deposed in her evidence that after

completion of the period Siddareddy had paid mortgage

amount to Manikappa and got redeemed the same and the

mortgage deed was handed over to Siddareddy, which is now

misplaced. But quite contrary to the same, in her cross-

examination, DW.1 further states that the amount was not

paid to Manikappa by Siddareddy and it was paid by

Ramreddy i.e., defendant No.2, who was no more.

Admittedly, Ramreddy is the son of Siddareddy and it is the

specific assertion of the defendants that the amount was paid

by Siddareddy but DW.1 claimed that the amount was repaid

by his son Ramreddy. DW.2 claims that husband of

defendant No.1 Siddareddy had repaid the mortgage amount

of Rs.4,000/-, which is contrary to the statement of DW.1.

17. The defendants further placed reliance on Ex.D12,

which is alleged to be an agreement executed by Manikappa

acknowledging the receipt of the mortgage amount and

handed over the possession of the mortgaged property.

DW.3 claims that at the time of execution of Ex.D12,

Siddareddy was alive, but, interestingly Siddareddy was not

a signatory to Ex.D12 - agreement. Further, the evidence of

DWs.2 and 3 disclose that Manikappa, Ramshetty and

Jaganath have given instructions and that itself disclose that

it is not Manikappa who has given instructions but witnesses

have taken interest. But, quite contrary to the same, DW.2

in his cross examination asserted that stamp paper was

brought by defendant No.1 which was again a contrary

stand. Against these admissions, DW.5 admitted that

plaintiff No.1 was the owner and possessor of the suit

property. The admissions given by the witnesses cannot be

termed as stray admission. Even on perusal of Exs.D12 the

signature of Manikappa was not got marked. Further,

admitted signature of Manikappa is available on Ex.P5, which

is the sale deed executed by one Nagappa in favour of

Manikappa pertaining to different property. If the signature

on Ex.P5 is compared with the alleged signature of

Manikappa on Ex.D12, it is evident that they are not one and

the same. Hence, it was for the defendants to establish that

Ex.D12 was executed by Manikappa by receiving the

mortgage amount resulting in redemption of the mortgage.

But, that is not forthcoming in the instant case.

18. Apart from that, Ex.D12 is an unregistered

document. Admittedly, the mortgage is a compulsorily

registrable document and redemption of the mortgage

extinguishes the interest of the mortgagee in the mortgaged

property by recreating interest of mortgagor in the said

property. Hence, under Section 17(1) (b) of the Registration

Act, it is a compulsory registrable document as it creates

right in favour of Siddareddy by extinguishing right in favour

of Manikappa. But, admittedly Ex.D12 is unregistered

document. A transfer by way of unregistered document

cannot be recorded as proper redemption.

19. Apart from that mere acknowledgement of some

portion of the mortgage amount does not require

registration. However, if endorsement is pertaining to

extinguishing the mortgage itself in the form redemption as

it recreates interest of mortgagor in the property, it

mandates registration under Section 17(1)(b) of the

Registration Act. This is again supported by Clause XI of

Section 17(1) of the Registration Act. But, no attempt has

been made by the defendants to get registered Ex.D12 and

even the signature on Ex.D12 alleged to be that of

Manikappa is not proved. The evidence of the defendants is

inconsistent regarding repayment made by either Siddareddy

or defendant No.2.

20. Though the defendants have disputed the

possession off the plaintiffs, but, if the defendants failed to

prove the redemption as asserted, then the burden shifts on

the defendants to prove the dispossession, but, that is not

forthcoming. The learned counsel for the appellants would

contend that there is no limitation for redemption of the

mortgage but as per Article 61(A) of the Limitation Act to

redeem or recover the possession of the property, limitation

is 30 years. Admittedly, the mortgage was not redeemed

within 30 years as the mortgage was in the year 1969 and

the stipulated period was expired in the year 1973 and the

allegations of execution of the agreement as per Ex.D12 in

the year 2004 and though there is an allegation of payment

of the mortgage amount in the year 1979, no evidence is

forthcoming in this regard. Hence, the right if any in favour

of the defendants for redemption of the mortgage is already

extinguished and further in view of the condition in the

mortgage deed itself, it cannot be termed as a usufructuary

mortgage but it is a mortgage by conditional sale. The other

contention raised by the defendants is non production of the

original mortgage deed by the plaintiffs and their contention

that it was handed over by Manikappa to Siddareddy and it

was lost. But, that aspect is also not proved and when the

mortgage itself is admitted and when the defendants are

asserting redemption in the year 1979 itself, the burden

shifts on them to substantiate the said condition, but they

failed to prove this aspect.

21. The learned counsel for the appellants placed has

reliance on a decision of the Hon'ble Apex Court reported in

(2014) 9 SCC 185 in the case of Singh Ram (Dead)

Through Legal Representatives vs. Sheo Ram and

Others. The said case is pertaining to usufructuary

mortgage, but, in the instant case, it is not a case of

usufructuary mortgage and it is the case of mortgage by

conditional sale as per clause of the mortgage itself. Hence,

the principles enunciated in the above cited decision cannot

be made applicable to the facts and circumstances of the

case in hand.

22. The learned counsel for the appellants further

places reliance on a decision reported in AIR 2008

RAJASTHAN 128 in the case of Bhikkilal and Ors. Vs.

Smt.Shanti Devi and Ors. and argued that the document

is not compulsorily registrable under Section 17(1)(b) of the

Registration Act, which is a simple agreement to reconvey

the property. But in the instant case, it is redemption of

mortgage after payment of mortgage amount. Ex.D12

though is styled as an agreement, it creates right in favour of

Siddareddy in view of redemption of mortgage by

extinguishing the right of mortgagee and hence, it is a

compulsorily registrable document and the said principles do

not come to the aid of the appellants in any way.

23. The learned counsel for the respondents/plaintiffs

on this point has placed reliance on the decision of the

Hon'ble Apex Court reported in (2019) 8 SCC 401 in the

case of Dharmaji Shankar Shinde and Others vs.

Rajaram Shripad Joshi (Dead) through legal

representatives and Others and invited the attention of

the Court to paragraph Nos.9.1 and 9.2, wherein, certain

questions were framed and were answered in paragraph

Nos.25 to 28. In the said decision, the Hon'ble Apex Court

has observed that once a conditions of mortgage deed are

unambiguous, it is required to be treated as mortgage by

conditional sale. The said principles are directly applicable to

the case in hand as in the instant case, the condition of

mortgage deed Ex.P2 establishes that there is a condition

that if the mortgage amount is not paid within the stipulated

period, the mortgage is deemed to be a sale deed. Hence,

the said principles are directly applicable to the facts and

circumstances of the case in hand.

24. Both the Courts below have appreciated the oral

and documentary evidence in a proper perspective and have

rightly decreed the suit of the plaintiffs by dismissing the

appeal filed by the defendants. No illegality or perversity is

found in the judgment and decree passed by both the Courts

below. Under such circumstances, the substantial question

of law Nos.1 to 3 framed by this Court are answered in the

affirmative while substantial question of law No.4 is

answered in the negative. As such, the appeal being devoid

of any merits, does not survive for consideration and needs

to be dismissed. Hence, I proceed to pass the following:

ORDER

The appeal stands dismissed.

There is no order as to costs.

Sd/-

JUDGE SRT