Karnataka High Court
Sharath Patil vs Smt. Puttamma on 15 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:6503
RSA No. 2519 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 2519 OF 2018
BETWEEN:
1. SHARATH PATIL
S/O LATE RAJAPPA
AGED ABOUT 26 YEARS.
2. MADHU PATIL
S/O RAJAPPA
AGED ABOUT 19 YEARS.
BOTH ARE RESIDENT OF
NAGATHIBELAGALU VILLAGE
BHADRAVATHI TALUK
SHIMOGGA-DISTRICT - 577 233.
...APPELLANTS
(BY SRI M.R. HIREMATHAD, ADV.)
AND:
Digitally signed 1. SMT. PUTTAMMA
by SUMA B N WIFE OF LATE PARASHURAMAPPA
Location: High AGED ABOUT 62 YEARS.
Court of
Karnataka 2. GANGADHARA
SON OF LATEL PARASHURAMAPPA
AGED ABOUT 43 YEARS.
3. RAMACHANDRA
SON OF LATEL PARASHURAMAPPA
AGED ABOUT 33 YEARS.
4. BASAVARAJAPPA
SON OF LATE PARASHURAMAPPA
(SINCE TYPOGRAPHICAL ERROR
MENTIONER FATHER NAME AS
PARASHURAME IN JUDGMENT
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NC: 2024:KHC:6503
RSA No. 2519 of 2018
OF OS-369/2008)
AGED ABOUT 33 YEARS.
ALL ARE RESIDENTS OF
NAGATHIBELAGALU VILLAGE
BHADRAVATHI TALUK
SHIMOGGA-DISTRICT - 577 233.
5. SMT. SHARADAMMA
W/O HANUMANTHAPPA
(MENTIONED IN JUDGMENT OF
OS 369/2008 HANUMAPPA BUT
BOTH ARE ONE AND SAME)
AGED ABOUT 38 YEARS
RESIDENT OF BHOVI COLONY
KADLEHALLI VILLAGE
KADUR TALUK, CHIKKAMAGALUR
DISTRICT - 577 140.
6. SMT. SAVITHRAMMA
W/O REVANAPPA
AGED ABOUT 45 YEARS
RESIDENT OF NEELAGIRI VILLAGE
KOPPAL-TALUK, DISTRICT- 583 238.
7. SMT. RENUKAMMA
WIFE OF SURESH
RESIDENT OF BHAVIKERE VILLAGE
TARIKERE TALUK, DISTRICT - 577 144.
8. SMT. VISHALA
W/O JAYARAM
AGED ABOUT 35 YEARS
RESIDENT OF SHAHAKALESHPURA
TARIKERE-TALUK, DISTRICT - 573 134.
9. SMT. RADHA
W/O VIJAYAKUMAR
AGED ABOUT 30 YEARS
RESIDENT OF GUDEKERE VILALGE
CHIKKANAYAKANAHALLI-TALUK
THUMAKUR DISTRICT - 572 214.
10. SMT. LAKSHMI RADHA
D/O LATE PARASHURAMAPA
(SINCE TYPOGRAPHICAL ERROR
MENTIONED FATHER NAME AS
-3-
NC: 2024:KHC:6503
RSA No. 2519 of 2018
PRAROSHARAMA IN JUDGMENT
OF RA 15/2015)
AGED ABOUT 23 YEARS
RESIDENT OF NAGATHIBELAGALU
VILALGE, BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT - 577 233.
...RESPONDENTS
THIS RSA FILED U/S.100 OF CPC 1908 PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 17.11.2018 PASSED IN
RA NO 15/2015 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND
JMFC BHADRAVATHI DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 06.03.2015 PASSED IN
OS.NO.369/2008 AND DISMISS THE SUIT OF THE
PLAINTIFFS/RESPONDENTS AND PASS ANY OTHER ORDER OR
JUDGEMENT OR DIRECTION IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is by the legal representatives of the original
defendant aggrieved by the judgment and decree dated
06.03.2015 passed in O.S.No.369/2008 on the file of I Addl.
Civil Judge & JMFC, Bhadravathi (hereinafter referred to as
'Trial Court'), which is confirmed by the judgment and order
dated 17.11.2018 passed in R.A.No.15/2015 on the file of the
Prl. Senior Civil Judge & JMFC, Bhadravathi (hereinafter
referred to as 'First Appellate Court').
2. The above suit is filed by the plaintiffs for the relief of
redemption of mortgage. The case of the plaintiffs is that
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Parashuramappa - husband and father of the plaintiffs,
respectively, during his lifetime had by a registered deed of
mortgage dated 19.08.1992 created a usufructuary mortgage
in respect of the suit schedule property in favour of the original
defendant - B.Rajappa for a sum of Rs.50,000/- on condition
that the said sum of Rs.50,000/- would carry no interest and
that the property, possession of which delivered to the
defendant would be recovered by paying the said sum of
Rs.50,000/- within a period of three years. It is the case of the
plaintiffs that their husband and father, respectively, namely
Parashuramappa passed away leaving behind him, his legal
heirs. Despite the plaintiffs requesting defendant to receive the
sum of Rs.50,000/- and to re-deliver the property by
redeeming the mortgage, defendant did not come forward,
constraining the plaintiffs to issue a notice dated 02.07.2008
calling upon the defendant to redeem the mortgage by
receiving the loan amount of Rs.50,000/-. Since there was no
response by the defendant, the plaintiffs filed the above suit for
redemption.
3. Defendant appeared, filed written statement admitting
the transaction of mortgage with deceased Parashuramappa
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and also admitting deceased Parashuramappa to be the owner
of the suit property. It is contended that since the deceased
Parashuramappa was in need of further amount, he had agreed
to sell the suit schedule property for a total consideration of
Rs.1,80,000/-. Accordingly, an agreement of sale dated
04.09.1992 was entered into between Parashuramappa and the
defendant. Defendant had paid additional sum of Rs.70,000/-
to Parashuramappa. Thus, he had in aggregate paid a sum of
Rs.1,20,000/-. That when the defendant was ready and willing
to pay the balance sale consideration and was ready to obtain
the execution and registration of the sale deed, deceased
Parashuramappa had denied and protracted the matter on one
pretext or the other. Even the plaintiffs refused to comply with
the request and demand made by the defendant and the
present suit was, therefore, not maintainable.
4. Considering the pleadings, the Trial Court framed issues
and recorded the evidence. On appreciation of the pleadings
and the evidence, the Trial Court decreed the suit as prayed
for. In the meanwhile, original defendant B.Rajappa is stated to
have passed away. Consequently, his wife and children filed
appeal in RA.No.15/2015 before the First Appellate Court. On
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re-appreciation of the evidence, the First Appellate Court
dismissed the appeal confirming the judgement and decree
passed by the Trial Court. Aggrieved by the same, the
appellants are before this Court.
5. Learned Counsel for the appellant reiterating the grounds
urged in the Memorandum of Appeal, submitted that the Trial
Court and the First Appellate Court seriously erred in not
considering the fact that the suit for redemption of mortgage
has been filed after a lapse of three years, whereas the deed of
mortgage had specifically contained a provision in terms of
which, the said mortgage ought to have been redeemed within
three years. It is further submitted that since deceased
Parashuramappa and deceased defendant had entered into an
agreement dated 04.09.1992 subsequent to the deed of
mortgage and when the original defendant had even paid
Rs.70,000/-, the mortgage never subsisted, instead it had
merged with the agreement of sale. It is submitted that the
Trial Court and the First Appellate Court failed to consider this
change in circumstance of the matter while decreeing the suit.
It is submitted that therefore substantial question of law arises
for consideration and the appeal is liable to be dismissed.
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6. Heard the learned Counsel for the appellant and perused
the records.
7. It is not in dispute that a usufructuary mortgage was
created in respect of the suit schedule property by deceased
Parashuramappa in favour of deceased original defendant by
executing a registered deed of mortgage dated 19.08.1992, in
terms of which, deceased Parashuramappa had delivered the
schedule property to the original defendant against the loan of
Rs.50,000/- which was to be repaid without interest within a
period of three years. In the meanwhile, Parashuramappa is
stated to have passed away. Subsequent thereof, plaintiffs
being his wife and children have requested the defendant to
receive the loan amount and redeem the mortgage. They had
also issued a notice as noted above, which has not been
favourably responded by the defendant. Instead defendant has
set up the plea that subsequent to the execution of the
aforesaid deed of mortgage dated 19.08.1992, deceased
Parashuramappa had entered into an agreement of sale dated
04.09.1992 agreeing to sell the schedule property in favour of
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the defendant for a total consideration of Rs.1,80,000/-, of
which, defendant had paid a sum of Rs.70,000/-.
8. The Trial Court and the First Appellate Court on
consideration of the facts and the law applicable in the matter,
have come to the conclusion that when there is a registered
deed of mortgage which is subsisting, and in terms of Section
62 of the Transfer of the Property Act, 1882, and Article 61 of
the Limitation Act, 1963, right to redeem such mortgage would
not extinguish even after three years, have come to the
conclusion that without redemption/revocation of the said
mortgage deed, there was no justification in defendant
contending that he had entered into an agreement of sale with
the Parashuramappa and that the said mortgage had merged
into the agreement of sale. Based on these reasoning, the Trial
Court declined to accept the plea of the defendant that the suit
was barred by time and that the mortgage had merged with the
agreement of sale, and consequently decreed the suit which
was confirmed by the First Appellate Court.
9. Defendant does not dispute the mortgage having been
created by the registered deed by deceased Parshuramappa.
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That being so, as taken note of by the Trial Court, during the
subsistence of such mortgage deed which is a registered
document, an unregistered document in the nature of
agreement of sale on 04.09.1992 cannot be considered as
creating any right, title or interest in favour of the defendant.
Further, the defendant has neither sought for any counter claim
nor has taken any action against the plaintiffs pursuant to the
said agreement of sale.
10. No fault can be found with the reasons and conclusions
arrived by the Trial Court and the First Appellate Court. No
substantial question of law arises for consideration in this
appeal. Accordingly, the appeal is dismissed.
Sd/-
JUDGE
KK
