Karnataka High Court
Smt Mallamma vs Smt Siddamma on 30 October, 2024
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RFA No. 898 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 898 OF 2007
BETWEEN:
1. SMT. MALLAMMA,
W/O. LATE MURIGAPPA,
AGED ABOUT 53 YEARS,
2. RAVIKUMAR,
S/O. LATE MURIGAPPA,
AGED ABOUT 25 YEARS,
3. NAGARAJA,
S/O. LATE MURIGAPPA,
AGED ABOUT 23 YEARS,
4. SMT. MANJULAMMA,
W/O RAJANNA,
D/O. LATE MURIGAPPA,
APPELLANTS 1 TO 4
ARE RESIDENTS OF
MALLAPURA, KASABA HOBLI,
CHITRADURGA TALUK AND
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA DISTRICT- 571 501.
Location: HIGH COURT OF
KARNATAKA
...APPELLANTS
(BY SRI. B.M. SIDDAPPA, ADVOCATE,
VIDE ORDER DATED 31/10/2023,
A1-DECEASED AND A2 TO A4 ARE
TREATED AS LR'S OF DECEASED A1)
AND:
1. SMT. SIDDAMMA,
W/O. LATE RUDRAPPA,
AGED ABOUT 51 YEARS,
2. SMT. THIPPAMMA,
W/O. RAMANJANAPPA,
-2-
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RFA No. 898 of 2007
AGED ABOUT 36 YEARS,
RESIDING AT
KALYANADURGA,
ANANTHAPURA DISTRICT AP.
3. R. MANJUNATHA,
S/O. LATE RUDRAPPA,
AGED ABOUT 33 YEARS,
4. SMT. LAKSHMIDEVI,
W/O. HANUMANTHARAYA,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD WORK,
RESIDING AT NEHRUNAGAR,
HOLALKERE ROAD,
CHITRADURGA.
5. R. THIPPESWAMY,
S/O. LATE RUDRAPPA,
AGED ABOUT 29 YEARS,
RESPONDENTS 1, 3 AND 5 ARE
RESIDENTS OF MALLAPURA VILLAGE,
KASABA HOBLI,
CHITRADURGA TALUK AND DISTRICT
PIN:571 501.
RESPONDENTS 1 TO 5 ARE LR'S OF
ORIGINAL PLAINTIFF LATE RUDRAPPA
ARRAYED AS PLAINTIFFS 1(a) TO (e)
BEFORE THE TRIAL COURT.
...RESPONDENTS
(BY SRI. A. K. SREEHARSHA, ADVOCATE FOR
SRI. SPOORTHY HEGDE N., ADVOCATE FOR R1 TO R5)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC AGAINST THE JUDGEMENT AND DECREE DT. 08.01.2007
PASSED IN OS.NO.102/2004 ON THE FILE OF THE II ADDL.CIVIL
JUDGE (SR.DN.) CHITRADURGA, DECREEING THE SUIT FOR
RECOVERY OF MONEY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 898 of 2007
CORAM: HON'BLE MR JUSTICE UMESH M ADIGA
CAV JUDGMENT
This is defendants' appeal aggrieved by the judgment
and decree dated 08.01.2007, passed by the learned II
Addl. Senior Civil Judge, Chitradurga, in
O.S.No.102/2004.
2. The parties are referred to as per their ranks
before the trial Court.
3. It is the case of the plaintiff (since deceased,
represented by his legal representatives) that, husband of
defendant No.1 by name Sri M. Murigappa, obtained loan
of Rs.1,50,000/- from the plaintiff on 20.09.2000 for his
legal and family necessity and for the land development.
He agreed to pay interest at the rate of 18% p.a. on the
said amount. The said Murigappa executed an
unregistered Mortgage Deed dated 20.09.2000. The said
Murigappa paid a sum of Rs.27,000/- towards interest on
18.09.2001. He died on 01.06.2004, leaving behind the
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defendants as his legal heirs. The defendants succeeded
to all the properties held by late Murigappa. Murigappa
was serving as clerk in Horticultural department and after
his death, the defendants have taken service benefits of
late Murigappa. Therefore, defendants are liable to pay the
said amount. As on the date of the suit, an amount of
Rs.2,28,500/- was due to the plaintiff from the
defendants. With these reasons, plaintiff prayed for
decree of the said amount with interest at the rate of 18%
p.a.
4. The defendants have disputed the suit claim.
They denied the loan obtained by Murigappa and execution
of the alleged documents.
5. From rival contentions of the parties, the trial
Court framed necessary issues.
6. Plaintiff in support of his case, examined PWs.1 to
4 and got marked Exs.P-1 to P-4. The defendant No.1 was
examined as DW-1. After hearing both the parties and
appreciating the evidence on record, the trial Court partly
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decreed the suit, directing the defendants to pay a sum of
Rs.2,28,500/- with interest at the rate of 9% p.a. by its
judgment and decree dated 08.01.2007. Being aggrieved
by the same, defendants preferred this appeal on the
grounds mentioned in the appeal memo.
7. Heard the arguments of learned counsel for both
parties and perused the materials on record.
8. Learned counsel for the appellants submitted that
defendants denied the contentions of the plaintiff. There
are no materials to believe that plaintiff had paid
Rs.1,50,000/- to late Murigappa on 20.09.2000. Ex.P-1 is
an unregistered Mortgage Deed which is not admissible in
evidence and on the basis of the said document, the
plaintiff cannot enforce his right. Section 59 of Transfer
of Property Act deals with mortgage. Plaintiff and his
witnesses have stated that it was a Mortgage Deed. Even
in the pleading also, plaintiff contends that it is a Mortgage
Deed executed by Murigappa. As per the provisions of
Transfer of Property Act, as well as Registration Act,
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Ex.P-1 needs to be registered, but it is not registered,
therefore, it is not admissible in evidence. He further
submits that Ex.P-1 is a doubtful document. Subsequent
endorsement for receipt of Rs.27,000/- and signature of
the scribe below the said endorsement are all doubtful.
The required stamp duty and penalty was not paid on
Ex.P-1. Therefore, marking of the said document is
incorrect. Hence, Ex.P-1 needs to be discarded.
9. He further submits that the trial Court considered
Ex.P-1 as Promissory Note and even the contents of the
said document do not fit in the frame of Promissory Note.
It is nobody's case that it was a Promissory Note.
Therefore, the findings of the trial Court is incorrect. The
trial Court has not appreciated the evidence properly and
came to a wrong conclusion. Therefore, prayed for
allowing the appeal by setting aside the impugned
judgment.
10. Learned counsel for the respondents submit that
it is a simple loan transaction i.e., hand loan given by
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plaintiff in favour of deceased Murigappa. It is not
required that any documents should be executed in this
regard. Mere oral evidence is sufficient to recover the
hand loan. The parties are villagers. Therefore, in the
local language of village, they stated that it was a
Mortgage Deed (Aadhar Patra). There is no need to
consider it as a Mortgage Deed. The suit is not for
foreclosure or redemption of mortgage. On the contrary,
the suit is for simple recovery of money lent to deceased
Murigappa. Therefore, Ex.P-1 has to be considered as a
"receipt" or acknowledgement for payment of the loan.
11. The learned counsel for respondent further
submits that PWs.2 and 3 have corroborated the evidence
of PW-1 regarding payment of loan to late Murigappa by
the plaintiff. Defendant No.1 who knew nothing was
examined and she pleads ignorance to each and every
questions in the cross-examination. It shows that she is
not deposing true facts before the Court. If she is
completely unaware of the facts, then who had instructed
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to file written statement or cross-examine the witnesses?
Therefore, the said defenses are vexatious and frivolous.
There is no proper rebuttal to the case of PWs.1 to 4. The
trial Court considered the case in right perspective and
decreed the suit. It does not call for any interference by
this Court.
12. From the above facts, following questions would
arise for my determination :
(1) Whether the trial Court is justified in
holding that late Murigappa had obtained loan of
Rs.1,50,000/- from the plaintiff?
(2) Whether Ex.P-1 requires registration?
(3) Whether the trial Court judgment needs
interference by this Court?
13. My findings on the above question No.1 is in the
affirmative and question Nos.2 and 3 is in the negative for
the following reasons :
Plaintiff was examined as PW-1 and in his evidence,
he reiterated the plaint averments. He stated that on the
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request of late Murigappa, he lent an amount of
Rs.1,50,000/- on 20th September 2000. Murigappa agreed
to repay the said amount with interest of 1.5% per month.
On 18.09.2001, Murigappa paid an amount Rs.27,000/-
towards interest on the said loan amount. Murigappa
committed suicide on 01.06.2004. Murigappa executed
Ex.P-1. He did not repay the loan amount during his life
time. After his death, plaintiff requested the defendants,
who are his wife and children, but they did not repay the
loan amount with interest. Hence, he filed the suit.
The evidence of PW-1 is corroborated by PW-2, who
is also a witness to Ex.P-1.
14. PW-4 is the scribe of Ex.P-1. He stated about
writing of the said document at the instruction of
Murigappa.
15. PW-3 is the witness to the endorsement made on
Ex.P-1 regarding repayment of Rs.27,000/- towards
interest on the loan, which is marked as Ex.P-2. He wrote
the said endorsement.
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In the thorough cross-examination of PWs.1 to 4,
nothing was brought out to disbelieve or discard their
evidences.
16. The defendant No.1 was examined as DW-1, who
in her examination-in-chief filed in the form of affidavit
evidence denied the execution of Ex.P-1 and also
signature of her husband on the said document. But in
the cross-examination, she pleads ignorance to each and
every question of the plaintiff. It clearly shows that she
knows nothing about this transaction or she was not
deposing true facts before the Court. When signature of
Murigappa was shown to her, she pleads ignorance and
says that she had not seen the signature of Murigappa and
it was suggested to her that she was present at the time
of obtaining loan and execution of Ex.P-1, she pleads
ignorance.
17. The said answer shows that she was not
deposing true facts before the Court. As rightly submitted
by learned counsel for the respondents, she knows nothing
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about facts of this case as well as documents. It appears
written statement was drafted and cross-examination to
PW-1 to PW-4 were made at the instruction of third party
and not by the defendants. Even the statement made by
DW-1 in the affidavit filed in lieu of examination-in-chief
was not of her own. Therefore, there is no proper rebuttal
to the evidence of PWs.1 to 4.
18. The contentions of the learned counsel for the
appellants as narrated above, that Ex.P-1 is not admissible
in evidence. Let us consider the said point later, but it is
worth to note that for any simple loan transaction, there
need not be any written document. The law does not
mandate that for recovery of money, execution of any
document is must. Oral evidence of PWs.1 to 4 is
believable and reliable. DW-1 in her cross-examination
admits that PW-1 is her relative; she was not acquainted
with PWs.2 to 3, but they were residents of the same
village. They had no enmity against her. Under those
circumstances, there are no reasons for them to give false
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evidence before the Court against the defendants. On the
other hand, by the oral evidence, plaintiff was able to
prove that he lent an amount of Rs.1,50,000/- to late
Murigappa for his family necessity and development of his
agricultural land.
19. If we read Ex.P-1, there is a reference that it was
executed as a document of security to the loan obtained
by late Murigappa. However, it does not show that any
right, interest or title was created by execution of the said
document over an immovable property belonging to late
Murigappa. It is also worth to note that both parties have
not created any charge on the land on the basis of Ex.P-1
in the revenue records. If it was the intention of both
parties that it was a Mortgage Deed, then definitely they
could have tried to create charge over the said property in
the name of the plaintiff. It is also worth to note that
plaintiff has not filed the suit for foreclosure of the
mortgage or has not sought for sale of the said property
belonging to Murigappa to recover decree amount.
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Therefore, both the parties understood that it was not a
Mortgage Deed. Mere using some nomenclature or stating
that it was executed as document of security for the loan
obtained, do not convert the document as Mortgage Deed.
Both the parties to the document were villagers. They
must have used wording in local language as
"aadhar patra" (security document), which does not
change the nature of the document. Admittedly, original
title deed was not handed over to plaintiff. No revenue
records were mutated by virtue of said document. Even
prayer was not made in the plaint thinking it as a
Mortgage Deed. Hence, pleading and evidence of the
parties will not convert an acknowledgement or receipt of
the amount to a Mortgage Deed.
20. Therefore, as rightly submitted by learned
counsel for the respondent, Ex.P-1 is not Deed of
Mortgage, but it is a simple receipt or acknowledgement
for receiving the loan of Rs.1,50,000/- and also an
agreement between them that late Murigappa would
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refund the said amount with interest at the rate of 1.5%
per month. Therefore, marathon arguments advanced by
learned counsel for the appellants that Ex.P-1 is a
Mortgage Deed and it is unregistered and not properly
stamped, therefore it cannot be considered as an
evidence, do not hold any water. The nature of the
document is not a Mortgage Deed, but an
acknowledgement for receipt of the loan amount. Hence,
even registration of the said document is not required.
21. Ex.P-1 was marked during the evidence of
PWs.1 to 4. Ex.P-2 was marked during the evidence of
PWs.1 and 4. At the time of marking of the document, the
defendants have not objected for the same on the ground
that it was not admissible in evidence. Under Section 35
of Karnataka Stamp Act, 1957, once the document is
marked, the party cannot raise the objection regarding its
admissibility in the later period. Section 35 of the
Karnataka Stamp Act reads as under :
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"35. Admission of instrument where not
to be questioned.- Where an instrument has
been admitted in evidence such admission shall
not, except as provided in Section 58, be called in
question at any stage of the same suit or
proceeding on the ground that the instrument has
not been duly stamped."
However, as already stated above, Ex.P-1 does not
requires to be registered since it is an
acknowledgement/receipt.
22. Another contention of learned counsel for the
appellants is that said document is doubtful. He refers to
an endorsement made on the said document Ex.P-2 and
signature of the scribe below the said endorsement. It
appears that the appellants are trying to read between the
lines.
23. As per the endorsement, which is marked as
Ex.P-2, is dated 18.09.2001. Ex.P-1 was executed on
20.09.2000. PW-4 signed on Ex.P-1 leaving a lot of space
in between the signature of witnesses and PW-4. Later
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on, some repayment was made by Murigappa. PW-3
wrote the said endorsement in between the space
available from signature of witnesses and scribe.
Therefore, it shows that the said endorsement was made
at the time of execution of the document. To prove
Ex.P-2, plaintiff examined PW-3, who scribed the said
sentence. The said scribe signed at Ex.P-2(b). Therefore,
the signature of the said Gundu Rao - PW-4 is not in
respect of Ex.P-2, but it was in respect of Ex.P-1. Hence,
it does not create any doubt regarding endorsement made
on Ex.P-2.
24. It is submitted that the suit was filed beyond the
period of limitation. They refer the date of loan given by
the plaintiff. It is true that from the date of loan, the suit
was filed beyond the period of limitation, however, said
Murigappa paid Rs.27,000/- on 18.09.2001. The said
transaction was mentioned at Ex.P-2. It is proved by
leading evidence of PWs.1 and 3. It extends period of
limitation from 18.09.2001, on which date, suit was filed
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i.e., within a period of three years. Hence, the suit was in
time.
25. The learned trial Judge discussed the evidence in
detail and came to a right conclusion. It may be true that
the learned trial Judge considered Ex.P-1 as Promissory
Note. The learned trial Judge also found out that Ex.P-1
does not require registration and it is not a Mortgage
Deed. The said findings are proper and does not call for
any interference by this Court.
26. The plaintiff paid the loan to late Murigappa
during his life time for the development of agricultural land
and digging the borewell in the said land. DW-1 in her
cross-examination admitted that Murigappa dug the said
borewell in the land, but she pleads ignorance regarding
other aspects. It is not the case of the defendants that
said loan was obtained for immoral purpose. Admittedly,
defendants succeeded to the property belonging to late
Murigappa and even one of the defendants got
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employment on compassionate grounds. Therefore, they
are liable to pay the debt obtained by Murigappa.
27. Looking to the cross-examination of DW-1, the
defence of the defendants is perverse and vexatious. The
plaintiff paid Rs.1,50,000/- on 20.09.2000. In his
evidence, he stated that he paid the said amount from his
retirement benefits. It appears, for the sake of interest, or
with an intention to help Murigappa, he paid hard earned
money. Even after lapse of 25 years, he is not able to
recover the said amount. Defendants and their frivolous
contentions could drag the litigation for 25 years and did
not pay the amount. This appeal is pending for the last 17
years. Considering these facts, the appellants are liable
to pay compensatory costs. The compensatory cost stated
under Section 35A of CPC is not sufficient to compensate
the respondent/plaintiff. Hence exercising power vested
under section 151 CPC cost shall be imposed.
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28. For above said discussions, I proceed to pass the
following :
ORDER
The Appeal is dismissed with compensatory cost of
Rs.25,000/- payable by the appellants to the
respondent/plaintiff.
The impugned judgment and decree dated
08.01.2007, passed by the learned II Addl. Senior Civil
Judge, Chitradurga, in O.S.No.102/2004, stands
confirmed.
The amount deposited before this Court, if any, shall
be transmitted to the concerned trial Court.
Registry shall transmit the records along with copy of
this judgment to the concerned Court without delay.
Sd/-
(UMESH M ADIGA)
JUDGE
bk/
