"1. Whether the plaintiff proves that he is the owner of suit
schedule property?
2. Whether the plaintiff further proves that, he become full
beneficiary after the death of Venkatalakshmma under the
said Will dt.06.08.1998?
3. Whether the plaintiff further proves that under the said
Will he acquired the right for seeking the decree for the
relief of redemption and other reliefs.?
Additional Issue framed on 02.08.2019
1. Whether defendant No.2 proves that in view of the
execution of the Will by the late B.R.Gopal Krishna the
original owner in favour of Sri.Sathya Sai Education &
Publication Foundation Central Trust dated 23.11.1079,
Smt.Sugana (original plaintiff) had no right to execute the
Will infavour of Sri.C.G.Manjunath as she had limited
interest in the suit schedule property?
Recasted Additional Issues framed on 02.08.2019
1. Whether defendant No.2 proves that in view of the
execution of the will by the late B.R. Gopal Krishna the
original owner in favour of Sri. Sathya Sai education &
Publication Foundation Central Trust dated 23.11.1979,
Smt. Sugana (Original plaintiff) had no right to execute the
Will in favour of Sri. C.G. Manjunath as she had limited
interest in the suit schedule property?"
10. To prove the case, the PA holder of the plaintiff was
examined as PW.1 and other three witnesses are also examined as
PWs.3 to 5 and got marked seven documents as per Ex.P.1 to
Ex.P.5. Defendant No.2 himself examined as DW.1 and got marked
five documents as EX.D.1 to Ex.D.5. After hearing the arguments,
the Trial Court has answered the issues, additional issues and
recasted additional issues as under in para 10 of the judgment of
the Trial Court as follows:
Issue No.1 In the affirmative,
Issue No.2 In the affirmative,
Issue No.3 In the negative,
Issue No.4 In the negative,
Additional Issue dated In the negative,
7.8.2007
Additional Issue No.2 In the affirmative,
dated 7.2.2018
Additional Issue No.3 In the negative,
dated 10.04.2018
Additional Issue No.1 In the affirmative,
dated 19.11.2018
Additional Issue No.2 In the affirmative,
dated 19.11.2018
Additional Issue No.3 In the affirmative,
dated 19.11.2018
Recasted Additional Issue In the negative
dated 02.08.2019
Issue No.6 As per final order for the
following
11. The Trial Court decreed the suit of the plaintiff by
directing the defendant to redeem the mortgage of the suit
schedule property by receiving the mortgage amount of Rs.30,000/-
in the court and to vacate the suit schedule property and hand over
the vacant possession of the said property in favour of the legal
heirs of the plaintiff. Being aggrieved by the same, the appellant are
before this Court.
12. Learned counsel for the appellants/defendants has
seriously contended that the judgment of the Trial Court is
erroneous and liable to be set aside, as necessary parties are not
made as a party. Even otherwise, the defendant was continued as
tenant even prior to the mortgage and after the redemption of the
mortgage, the defendant will continue to be a tenant, which was
inducted under the HRC Act. It is also contended that the legal
representatives of the plaintiff had sold the suit schedule property
during the pendency of the suit in 2016, but did not disclose and
continued the matter. Hence, additional written statement was filed
which was brought into notice of the Court. The purchaser cannot
be a legal heirs. It is further contended that the Trial Court has not
framed the issues and given any findings on this issue. Hence, the
parties sold the property as per Section 16 of the TP Act mortgagors
losses the right for redemption of mortgage. It is further contended
that the plaintiff has full of knowledge while selling the property and
lost the right, but continued the suit which is contrary to the
provisions of Section 16 of the TP Act and also contended that the
plaintiff admits in the cross-examination that he has sold the
property. Hence, prayed for allowing the appeal and dismiss the
suit.
13. Learned counsel for the respondent has contended that
the defendant is the mortgagee of the suit schedule property,
which was created in 1990. The suit filed by the plaintiff for
redemption of the mortgage, but the plaintiff sold the property
during the pendency, the plaintiff can recover the mortgage
property from the defendant, the suit must be continued by the
subsequent purchaser also. The rate of redemption passes to the
subsequent purchaser and the respondent supported the judgment
of the Trial court. Hence, prayed for dismissing of the appeal.
14. Heard the argument of learned counsel for the appellant
and respondent and perused the records.
15. The points that arise for consideration are:
(i)Whether the plaintiff proves that she is the owner
of the suit schedule premises by way of Will dated
06.08.1998?
(ii)Whether the defendant proves that the plaintiff
cannot seek relief of redemption of mortgage
inspite of alienating the property to 3rd parties,
during the pendency of the suit?
(iii)Whether the defendant further proves that even
after redemption of mortgage, the defendant
continue to be a tenant under the suit schedule
premises?
(iv)Whether judgment of the trial court calls for any
interference?
16. Upon hearing the arguments, perused the records, which
reveals the defendant become the mortgagee under the mortgage
deed executed by one Venkatalakshmamma the original owner of
the suit schedule premises on 05.09.1990 and the mortgage was
for 7 years. The said Venkatalakshmamma succeeded the property
from B.R.Gopalakrishna her husband. She had an unmarried
daughter i.e, plaintiff. Venkatalakshmamma, and the plaintiff have
settled their entire property. The Venkatalakshmamma being eldest
female member administrated the property and mortgage the
property in favour of the Meena, who is wife of the defendant No.1,
which is usufructuory mortgage, where the possession was
delivered to the wife of the defendant No.1 and there is no rent
payable. The mortgage amount was Rs.30,000/- and after expiry of
7 years, if the mortgage shall be redeemed by paying Rs.30,000/-.
Subsequently, the mortgagee Meena died by leaving behind her
husband and children and the defendant said to be continued in the
possession of the property and after the death of
Venkatalakshmamma, the plaintiff succeeded the estate and
thereafter he said to be executed Will in favour of Manjunath, the
deceased plaintiff on 06.08.1998. After the suit, the said
Manjunath impleaded himself as legal heir based upon the Will.
Accordingly, after the expiry of the lease period, the suit filed for
redemption of mortgage. In view of the documents produced by
the plaintiff, in respect of ownership of the schedule property by the
Venkatalakshmamma succeeded by her daughter Meena, Suguna
and the said Suguna said to have filed the suit. During the
pendency of the suit, Manjunath was impleaded as plaintiff after the
death of Suguna under the Will. In respect of ownership of the
property, mortgaging the suit schedule property, in the name of the
deceased Meena who is the wife of the defendant No.1, were all not
in dispute. In view of executing Will by Suguna, the plaintiff
became the owner of the property as a legal heir, he has continued
the suit. The defendant is only a husband of the mortgagee and he
cannot dispute the ownership of the property, as once a mortgage
is always a mortgage and he cannot become the owner. The Ex.P.1
is General Power of Attorney, went to one Chandrashekar by the
plaintiff who examined as witness. Ex.P.2 is the notice. Ex.P.3 is
the reply notice. Ex.P.4 is the certified copy of the mortgage deed.
Ex.P.5 is Will. Ex.P.6 is death certificate of Venkatalakshmamma.
Ex.P.7 is death certficiate of Suguna. These documents were not
seriously disputed by the defendant and in view of the undisputed
fact and owner of the property, who is a mortgagor which has been
succeeded by the present plaintiff, while filing the suit and
subsequent to the filing of the suit. Therefore, there is no error
committed by the trial court holding the plaintiffs are owner of the
schedule property and the respondents are mortgagees under the
mortgage deed at Ex.P.4.
17. In respect of point No.2, the contention raised by the
defendant/appellant is that during the pendency of the suit, the
plaintiff have executed the sale deed in favour of the 3rd parties and
continued the suit by suppressing the fact. Therefore, the plaintiff
has no power to continue the suit without substituting the sufficient
purchaser as plaintiff and therefore, the plaintiff has no locus standi
to continue the suit for the purpose of redemption of mortgage. In
this regard, the learned counsel for the appellant relied upon the
judgment of Hon'ble Supreme Court in the case of Allokam
peddabbayya and another Vs Allahabad Bank and Others in
Civil Appeal Nos.2763-2764 of 2008, wherein the Hon'ble Apex
Court has held in para 17 of the judgment that the trial court has
not given finding in respect of sale of property mortgaged by the
respondent which was concluded between the appellant and
respondent No.1 and the court was essentially concerned with the
exercise of discretion under Article 136 of Constitution of India and
has held that the subsisting right to redeem the property was never
gone into by the trial court as well as the High Court. Therefore
Hon'ble Apex Court rejected the plaint. At paragraph No.23 it is
held that the right of redemption which is embodied in section 60 of
the Transfer of Property Act is available to the mortgagor unless it
has been extinguished by the act of parties or by decree of a court
and it has held the mortgagors right of redemption will be
extinguished but the conformant of the power, to save the
mortgage property without intervention of the court in a mortgage
deed, in itself will not deprive the mortgagor or his right of
redemption.
18. It is further held that the extinction of
the right of redemption has to be subsequent to the deed conferring
such power and the right of redemption is not extinguished at the
expiry of the period. And also held the transfer of mortgage
property had taken place in favour of the appellant and therefore
the statutory right of redemption available to respondent No.3 was
never lost.
19. Learned senior counsel appearing for respondent has
contended that though the property said to be sold by the
mortgagor who is legal heir of original owner of the mortgagor was
sold to one Uday Shankar on 30.06.2016 during pendency of the
suit, that was not brought to the notice of the court. However, the
right over the property has been extinguished, but the redemption
of mortgage will not be extinguished. Also, stated that the
subsequentl purchaser Uday Shankar is not a necessary party to the
proceedings and in support of his contention he has relied upon the
judgment of the Gujarath High Court in the case of Vora Aminbai
Ibrahim Vs Vora Taheral Mohmedali and others reported in
1997 SCC Online Guj 77 at paragraph No.11 has held as under
A mortgage is created by act of parties. In
usufructuary mortage, the transfer loanmademortgage
rated the possession and enjoyment of the usufruct.
The rights of a usufructuary mortgage form part of the
bundle of rights which constitute ownership the
remainder still remains with the mortgagor and can be
transferred by him. On the execution of a mortgage
two distinct rights are carved out, namely, (i) the
mortgagee's right (i) and (ii) the mortgagor's right. The
mortgagee's right is the right of security for the
respondent of his loan. The mortgagor's right is as
indicated in Section 60 of the Transfer of Properly Act,
i.e., after the principal money has become due, the
mortgagor has a right to pay the mortgage money and
on such payment he has a right to require the
mortgagee, among others, to deliver possession. This
right cannot be extinguished except by the act of
parties or by a decree of a Court. This right is called
the right to redeem and a suit to enforce it is called a
suit for redemption. Thus, the scope of a suit for
redemption is primarily to enforce the right to make
payment of the mortgage money. A claim to redeem a
mortgage actually does not attach to the land,
although the decree passed in that suit may ultimately
affect possession which is also an interest in land. An
owner has a bundle of interests in property. By
executing a mortgage he transfers only some interest
to the mortagee and that also by way of security. That
interest is confined to realization of mortgage debt,
which, in the event of nonpayment, may be realized
out of the said security. What remains with the
mortgagor after execution of the mortgage, is the
ownership of the property, minus the interest
transferred, and the right to repay the mortgage
money and to get the burden of security discharged.
That right has been created in the mortgagor and not
in the property. Thus, when a mortagor enforces his
right to redeem, he does not enforce a right in land.
and in another judgment the Hon'ble Apex Court, in case of
Government of Orissa Vs Ashok Transport Agency and Others
reported in (2005) 1 SCC 536 at para 9 has held as under:-
9. Normally, in a case covered by Order 22 Rule
10 of the Code of Civil Procedure where rights are
derived by an assignee or a successor-in-interest
pending a litigation, it is for that assignee or transferee
to come on record if it so chooses and to defend the
suit. It is equally open to the assignee to trust its
assignor to defend the suit properly, but with the
consequence that any decree against the assignor will
be binding on it and would be enforceable against it
Equally, in terms of Section 146 of the Code of Civil
Procedure, a proceeding could be taken against any
person claiming under the defendant or the judgment-
debtor. Similarly, a person claiming under the
defendant or the judgment-debtor could seek to
challenge the decree or order that may be passed
against the defendant, by way of appeal or otherwise,
in the appropriate manner.
20. In another judgment reported in (2006) 13 SCC 608 in
the case of Sanjay Verma Vs Manik Roy and Others at
paragraph Nos.9 and 10 of the judgment has held as under,
9. Section 52 of the TP Act reads as follows:
"52. During the pendency in any court having authority
within the limits of India .... of any suit or proceedings
which is not collusive and in which any right to
immovable property is directly and specifically in
question, the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party
thereto under the decree or order which may be made
therein, except under the authority of the court and on
such terms as it may impose."
10. Bibi Zubaida Khatoon case¹ on which learned
counsel for the respondents had placed reliance in fact
goes against the stand of the respondents. Though a
casual reading of para 9 supports the stand taken by
the respondents, it is to be noted that the factual
position was entirely different. In fact a cross-suit had
been filed in the suit in that case. The respondents
being transferees pendente lite without leave of the
court cannot as of right seek impleadment in the suit
which was in the instant case pending for a very long
time. In fact in para 10 of the judgment this Court has
held that there is absolutely no rule that the transferee
pendente lite without leave of the court should in all
cases contest the pending suit. In Sarvinder Singh v.
Dalip Singh² it was observed in para 6 as follows: (SCC
pp. 541-42, para 6)
21. Learned senior counsel for respondent also relied upon
the judgment of Hon'ble Supreme Court in case of Dhurandhar
Prasad Singh Vs Jai Prakash University and Others reported in
(2001) 6 SCC 534 at paragraph 7 has held as under;
7. Under Rule 10 Order 22 of the Code, when
there has been a devolution of interest during the
pendency of a suit, the suit may, by leave of the court,
be continued by or against persons upon whom such
interest has devolved and this entitles the person who
has acquired an interest in the subject-matter of the
litigation by an assignment or creation or devolution of
interest pendente lite or suitor or any other person
interested, to apply to the court for leave to continue
the suit. But it does not follow that it is obligatory upon
them to do so. If a party does not ask for leave, he
takes the obvious risk that the suit may not be properly
conducted by the plaintiff on record, and yet, as
pointed out by Their Lordships of the Judicial
Committee in Moti Lal v. Karrabuldin' he will be bound
by the result of the litigation even though he is not
represented at the hearing unless it is shown that the
litigation was not properly conducted by the original
party or he colluded with the adversary. It is also plain
that if the person who has acquired an interest by
devolution, obtains leave to carry on the suit, the suit
in his hands is not a new suit, for, as Lord Kingsdown
of the Judicial Committee said in Prannath Roy
Chowdry v. Rookea Begum², a cause of action is not
prolonged by mere transfer of the title. It is the old suit
carried on at his instance and he is bound by all
proceedings up to the stage when he obtains leave to
carry on the proceedings.
22. Also relied upon the judgment of Hon'ble Apex Court in
case of Singh Ram (Dead) Through Legal representatives Vs
Sheo Ram and Others reported in (2014) 9 SCC 185 has held as
under,
14. In Jayasingh Dnyanu Mhoprekar v.
Krishna Babaji Patil³, the question of limitation for
redemption was not involved. Question was whether
the mortgagor's right of redemption was affected
when mortgaged land was allotted to mortgagees
by way of grant under the provisions of the Bombay
Paragana and Kulkarni Watans (Abolition) Act,
1950, it was observed: (SCC p. 167, para 6)
6. The only question which arises for decision
in this case is whether by reason of the grant made
in favour of the defendants the right to redeem the
mortgage can be treated as having become
extinguished. It is well settled that the right of
redemption under a mortgage deed can come to an
end only in a manner known to law. Such
extinguishment of right can take place by a contract
between the parties, by a merger or by a statutory
provision which debars the mortgagor from
redeeming the mortgage. A mortgagee who has
entered into possession of the mortgaged property
under a mortgage will have to give up possession of
the property when the suit for redemption is filed
unless he is able to show that the right of
redemption has come to an end or that the suit is
liable to be dismissed on some other valid ground.
This flows from the legal principle which is
applicable to all mortgages, namely 'Once a
mortgage, always a mortgage'. It is no doubt true
that the father of the first defendant and the second
defendant have been granted occupancy right by
the Prant Officer by his order dated 5-2-1964 along
with Pandu, the uncle of Defendant 1. But it is not
disputed that the defendants would not have been
able to secure the said grant in their favour but for
the fact that they were in actual possession of the
lands. They were able to be in possession of the
one-half share of the plaintiffs in the lands in
question only by reason of the mortgage deed. If
the mortgagors had been in possession of the lands
on the relevant date, the lands would have
automatically been granted in their favour, since the
rights of the tenants in the watan lands were
allowed to subsist even after the coming into force
of the Act and the consequent abolition of the
watans by virtue of Section 8 of the Act. The
question is whether the position would be different
because they had mortgaged land with possession
on the relevant date."
22. In view of the judgment of the Hon'ble Supreme Court in
the above said cases and the Gujarath High court, I am of the view,
even the plaintiff sold the property, but he has continued to contest
the matter and subsequent purchaser not chosen to approach the
court for stepping to the shoes of plaintiff for taking the matter
against the respondent. Such being the case, until the mortgage is
extinguished, the suit will not come to and end and it cannot be
said to be not maintainable. Therefore, the contention raised by
the appellant counsel that suit is not maintainable, is not
acceptable. Accordingly, I answered the point No.2 in the
negative.
23. As regards to the point No.3, the contention raised by the
respondent, that the appellant was a tenant prior to the lease deed,
the appellant was the legal heir of the tenant under House Rent
Allowance Act and the same was allotted by the Rent controller to
the wife of the appellant No.1, he became the tenant under the
Rent Control Act. Therefore, even if mortgage agreement is
entered, it is lapsed, the appellant will continue to be as a tenant in
the premises. Though he has produced some of the documents in
order to show there was a suit premises allotted as a tenant under
the Rent Control Act by the Rent Controller etc., but there is no
reference available under the Ex.P.4 that the mortgagee is
continued as tenant prior to the execution of mortgage deed,
therefore, even after the expiry of lease period, the defendant
should continue as tenant under the premises. When there is no
reference or recital available for the lease deed, the said contention
cannot be acceptable. Once even otherwise the original defendant
entered as tenant in the schedule property and subsequently to the
execution of mortgage deed and she became the mortgagee and
the plaintiff becomes mortgager and the suit filed for redemption of
mortgage after expiry of the mortgage period, it is pertinent to note
that the mortgage deed was executed on 05.09.1990 and that the
mortgage period was 7 years and the suit was filed in the year
2001, after the expiry of 3 years of the mortgage term, but the suit
was disposed of, by the Trial Court in 2020. The Trial Court almost
took 20 years for the disposal of the suit. Now it is 2025 almost 25
years litigation is pending. The expiry date was 1997 and almost
28 years, the plaintiff is enjoying the property without paying any
rent under the guise of lease. The original mortgagee and
mortgagor also died, but now the successor are litigating the
matter. The contention of the defendant that as Ex.D1 to 4 and D5,
that they are the tenant under the Rent Control Act, etc., cannot be
acceptable in view of the Rent Act came into force and they become
the mortgagee and the relationship of rent controller, the land lord
and tenancy not existing in view of the execution of mortgage deed.
Such being the case, the question of continuing the defendant as
tenant cannot be acceptable. Accordingly, answered the point No.3
in the negative.
24. On perusal of the judgment of the Trial Court, the Trial
Court considering the evidence on record, appreciated the
documents and rightly decreed the suit of the plaintiff and therefore
the judgment of the Trial Court do not call for any interference of
this court. The appeal is devoid of merits, hence liable to be
dismissed.
25. In respect of W.P.No.15956/2023 where the same
appellant filed this writ petition as against the order passed by the
FDP court for having rejected the application on I.A.No.8 & 9 for
staying the further proceedings of the final FDP proceedings until
disposal of the above said appeal.
26. The petitioner filed an Interlocutory Application before
the trial Court in the FDP proceeding in FDP No.109/2020 which was
arising out of original suit and decree in O.S.No.8885/2001 which
was upheld by the High court in RFA No.846/2020 and in the
meanwhile, the trial court proceeded to issue delivery warrant and
started calculating the damages therefore, the petitioner filed
application for staying all further proceedings of the FDP until
disposal of the appeal by this court and the same was rejected by
the trial court vide impugned order dated 21.7.2023 on the
application filed by him under Order 21 Rule 24 of CPC.
27. Now in view of the deciding the appeal by this court in
RFA No.846/2020 and dismissing the appeal, the question of
staying FDP proceeding does not arises, therefore the writ petition
cannot be allowed and it is also liable to be dismissed.
Accordingly I proceed to pass the following order
The appeal filed by the appellant in RFA No.846/2020 is
hereby dismissed.
Writ Petition No.15956/2023 filed by the petitioner
challenging the order on I.A.No.8 & 9 in FDP 109/2020 is also
dismissed.
Accordingly, the writ petition is hereby dismissed.
Sd/-
(K.NATARAJAN)
JUDGE
AKV/PNV
CT:SK
